1.      Heard Mr. Mahesh K. Chaudhary, Advocate, for the complainant, Mr. Kapil Madan, Advocate, for opposite Party.

2.      Anuj Takkar has filed above complaint for directing the opposite party to (i) refund Rs.14445250.32/- with interest @15% per annum from 11.06.2018 till its payment, (ii) pay Rs.2000000/-, as compensation for mental agony and harassment, (iii) pay cost of the litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. Godrej Projects Development Private Limited (the opposite party) (previously named as Godrej Premium Builders Private Limited) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Godrej Summit” at Sector-104, Gurgaon, in the year 2012. The complainant, who was in need of a residence, applied for allotment of a flat on 11.09.2012 and deposited booking amount. Later on, the opposite party issued Provisional Allotment Letter dated 03.01.2013 allotting Unit No. D1706, super area 1446 sq.ft. Tower-D, in project “Godrej Summit”. Apartment Buyers’ Agreement was executed between the parties on 20.09.2013 in respect of Apartment D-1706, super area 1446 sq.ft., total consideration Rs.9257540/-. Under Payment Plan, 12.5% of BSP was payable on booking, 95% BSP+100% of (PLC+car parking allotment charges + EEC+ power back-up facility charges + CCMF + EDC/IDC) (less booking amount) was payable within 60 days of booking, balance 5% of BSP and other charges were payable at the time of offer of possession. Clause 4.2 of the Agreement provides that the construction would be completed within 48 months from the issue of allotment letter with grace period of 6 months.  The complainant paid total amount of Rs.2481986/- at the time of execution of Apartment Buyers Agreement, and total Rs.8907760/-. Balance amount was payable at the time of offer of possession.  The opposite party issued letter dated 21.06.2017 in the head of “Possession intimation” whereby the complainant was invited to inspect apartment and take possession after deposit of balance amount of Rs.745779.36. In pursuance of the aforesaid letter, the complainant inspected the apartment on 06.07.2017 in presence of Authorised Representative of the opposite party. The Joint inspection memo was prepared on 10.07.2017 in which following deficiencies in construction were noted:

“i)      The construction quality is below par as is evident from the photographic evidence.

ii)       The deficiency in quality is not limited to civil work but also poor workmanship, broken floor tiles and chirped wall tiles, rusted bathroom fitments, broken/misaligned aluminium door and windows.

iii)      Evident seepage in the bedroom walls and cracks in the wall wherein cement is spilling out from the walls.

iv)      The Club House is non-operational and construction work at the entrance is underway.

v)      Non-operational swimming pool.

vi)      Café not operational in the Club House.

vii)     Two or more towers even have civil work going on at the entrance of the project.

viii)    Various common amenities such as Park/Playground are under fitment and school is under construction.

ix)      The car access to my unit is limited due to multiple construction work in progress at various point in the project.

x)       Flat and the amenities have not been operational as per the User Agreement.

xi)      Even the workman ship of the flat unit is substandard.

4.      The offer of possession and final payment should be demanded only when the work deficiencies are rectified and all amenities are operational as per User Agreement so that I can shift in my unit in which I have invested my hard earned savings and taken loan from the Bank. The opposite party assured to make the deficiencies good by e-mail dated 13.07.2017 and thereafter, but the deficiencies in construction were not removed. The complainant again inspected the apartment on 04.08.2017 and found it in the same condition as it was at the time of inspection on 06.07.2017 then again an e-mail was given to the opposite party. The opposite party, however, instead of removing the deficiencies in constructions sent a demand notice dated 04.09.2017 for Rs.683520/- with interest/penal interest. The demand notice dated 04.09.2017 was protested by legal notice dated 24.10.2017. Inspite of service of legal notice dated 24.10.2017, the opposite party did not respond. The complainant sent e-mail dated 28.12.2017 for refund of his money. Thereafter various e-mails on 18.01.2018, 23.01.2018 and 27.01.2018 were given. The opposite party replied vide e-mail dated 29.01.2018, but nothing has been stated either in respect of refund of money or for removal of deficiencies in construction. Then this complaint was filed on 11.06.2018 claiming deficiencies in service.

5.      The opposite party filed it written reply on 13.08.2018 and contested the matter. The opposite party did not dispute application of the complainant for allotment of an apartment on 11.09.2012, allotment of Unit No.D-1706 to the complainant in Tower-D in project “Godrej Summit” on 03.01.2013 and execution of Apartment Buyers’ Agreement dated 20.09.2013 and deposits made by the complainant.  The opposite party stated that the construction has to be completed within 48 months of allotment with grace period of six months. As per Clause 4.2 of the Apartment Buyers Agreement dated 20.09.2013, due date of possession was 03.07.2017. The construction was completed before due date of possession. The opposite party had applied for issuance of occupation certificate which was issued on 07.04.2017 and thereafter the possession letter was issued to the complainant on 21.06.2017. It is usual practice amongst the builder that final finishing work are used to be completed after deposit of the amount as demanded along with possession letter. The complainant instead of depositing the amount has insisted completing the finishing work. As the complainant did not made payment of outstanding dues, as such, the finishing work could not be completed. The complainant cannot deny to take possession of the apartment, which was offered after issue of “occupancy certificate”. The opposite party issued reminders dated 05.09.2017, 05.10.2017, 25.11.2017 and 27.12.2017 for deposit of the balance amount, which has not been deposited by the complainant, as such, there was no deficiency in service on the part of the opposite party. The complaint is liable to be dismissed.

6.      The complainant filed Rejoinder Reply on 11.04.2019. The complainant filed Affidavit of Evidence of Anuj Takkar and the documentary evidence. The opposite party filed Affidavit of Evidence of Anindo Vyas and documentary evidence. Both the parties have filed their short synopsis of arguments.

7.      I have considered the arguments of the counsel for the parties and examined the record. The dispute between the parties is that on offer of possession on 21.06.2017, the complainant was liable to take possession after deposit of balance amount or can seek for refund. Schedule IV of the agreement provides specifications of the construction. As such a buyer is entitled to the construction as per specification. Clause-4.1 of the agreement provides that the developer shall, before execution and registration of conveyance deed and handing over of possession of the apartment to the buyer, obtain necessary part occupation/occupation and/or completion certificate in respect of the said tower in which the apartment is situated towards completion of construction. Issue of “occupation certificate” cannot be a conclusive proof of the construction as per specification. Supreme Court in Lucknow Development Authority Vs. M.K.Glupat, (1994) 1 SCC 243, held that any defect in construction activity would be denial of comfort and service to a consumer. If the builder of a house uses substandard material in construction of the building and makes false and misleading representation about the condition of the house, then it is denial of facility or benefit for which a consumer is entitled to claim value under the Act.  

8.      The complainant inspected the apartment on 06.07.2017 in presence of Authorised Representative of the opposite party. Joint inspection memo was prepared on 10.07.2017 in which various deficiencies in construction were noted which were acknowledged by the representative of the opposite party on the sheet dated 02.07.2017 and 04.08.2017. Inspite of the deficiency in construction, the opposite party insisted to deposit of balance amount and take possession of the apartment. Scheduled IV of Apartment Buyers’ Agreement contains the specification of the construction as such the buyer is entitled for completion of the apartment as per specification. There is nothing on record to prove that the opposite party has removed the deficiency in construction. The opposite party instead of removing the deficiency in construction issued demand notice dated 04.09.2017 and reminders dated 05.09.2017, 05.10.2017, 25.11.2017 and 27.12.2017. In the circumstances, it is proved that opposite party was adamant to realize the balance amount. Inspite of taking 95% of the consideration, the opposite party failed to offer the apartment to the complainant complete in all respect as per specification. The buyer was not bound to take possession of a construction, which was not complete as per specification. There was deficiency on the part of the opposite party. The complainant is justified to cancel the agreement and demand refund of money.

ORDER

          In the result, the complaint is partly allowed. The opposite party is directed to refund the entire money deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of payment within a period of two months from the date of this judgment.