JUDGMENT

HON’BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The appellant/complainant booked a residential apartment with respondent no.1 in a project namely ‘Centrum Park’, which respondent no.1 is developing in Sector-103 of Gurgaon.  The booking was made vide cheque dated 28.03.2017 drawn in favour of respondent no.2 which is stated to be a subsidiary of respondent no.1.  The case of the appellant/complainant is that the builders had promised to deliver possession of the apartment within one year.  However, as per the terms and conditions of the agreement executed between the parties on 17.05.2017, the possession was to be delivered within a period of three years and a grace period of six months was also available to the builders for this purpose.  The grievance of the complainant/appellant is that despite he having paid Rs.20,65,156/- from his own pocket and Rs.19,03,886/- through respondent no.4 besides making payment of Rs.1,85,481/- towards VAT, the possession was not delivered to him.  The complainant therefore, approached the concerned State Commission by way of a Consumer Complaint filed in the year 2019, seeking refund of Rs.39,69,042/- with interest and compensation. 

2.      The State Commission, relying upon clause 21 of the agreement executed between the complainant and the developer, noted that the possession could be delivered to the complainant by November 2020.  The complaint was therefore, dismissed as premature without issuing notice to any of the opposite parties.  Being aggrieved, the complainant/appellant is before this Commission. 

3.      Clause 21 of the Agreement reads as under:

21.    The developer shall endeavor to complete the construction of the said building/unit within a period of three years, with a six months grace period thereon from the date of execution of the Flat Buyers Agreement subject to timely payment by the Buyer(s) of Total Sale Price payable according to the Payment Plan applicable to him or as demanded by the Developer.  The Developer on completion of the construction/development shall issue final call notice to the Buyer, who shall within 30 days thereof, remit all dues and take possession of the Unit.  In the event of his/her failure to take possession of the Unit within the stipulated time for any reason whatsoever, he/she shall be liable to bear all taxes, levies, outflows and maintenance charges/cost and any other levies on account of the allotted Unit alongwith interest and penalties on the delayed payment, from the dates these are levied/made applicable irrespective of the fact that the Buyer has not taken possession of the Unit or has not been enjoying benefit of the same.  The Buyer in such an eventuality shall also be liable to pay the holding charges @ Rs.5/- per sq. ft. (of the super area) per month to the Developer, from the date of expiry of said thirty days till the time possession is actually taken over by the Buyer.

4.      The learned counsel for the complainant/appellant has drawn my attention to an e-mail dated 15.05.2017 sent by the developers wherein it is inter-alia stated that the construction was in full pace and in view of the pace of the construction, the possession was tentatively scheduled by first week of 2018, subject to receipt of necessary approvals from the competent authorities.  It was further stated in the said e-mail that the confirmed date shall be informed once the approvals were received. 

5.      In my opinion, the aforesaid e-mail cannot be said to be a novation of the agreement executed between the parties on 17.05.2017 which stipulated a period of three years for giving possession and also allowed a grace period of six months to the developer.  The e-mail clearly shows that the possession by first week of 2018 could be given only subject to receipt of necessary approvals and a confirmed date for delivery of possession was to be intimated to the complainant/appellant after the requisite approvals had been received.  Therefore, the said e-mail, in my opinion, does not convey a firm date for delivery of possession to the complainant.  Therefore, the builder is obliged to deliver possession to the complainant only by 17.11.2020. 

6.      The learned counsel for the complainant/appellant submits that after the order of the State Commission, the entire amount which the complainant/appellant paid to the builder, has been forfeited.  In this appeal, I am concerned only with the order passed by the State Commission on 04.12.2019.  The forfeiture has happened after the said order had been passed and was not a subject matter of the Consumer Complaint dismissed by the State Commission.  The forfeiture of the amount paid by the complainant/appellant to the builder constitutes an independent cause of action and the complainant/appellant is at liberty to avail such liberty including institution of a Consumer Complaint as may be available to him in this regard.  In fact, after 17.11.2020, the complainant can also file a fresh complaint seeking possession of the allotted flat if he so wants or refund of the amount which he paid to the builder. 

7.      For the reasons stated hereinabove, I find no justification to interfere with the impugned order.  The appeal is disposed of with the clarification that the impugned order shall not come in the way of the complainant/appellant availing such remedy as may be open to him in law against the builder including filing a fresh Consumer Complaint seeking any relief open to him in law including challenge to the forfeiture of the amount paid by him to the developer.  The appeal stands disposed of.