PER MR SUBHASH CHANDRA, PRESIDING MEMBER

          The complainant is before us under section 21 with section 12 (1) (a) of the Consumer Protection Act, 1986 (in short, ‘the Act’) stating that he had booked a flat in the project viz., ‘The Corridors’ being developed by the opposite party at Sector 67 – A, Gurgaon. An Apartment Buyer’s Agreement (in short, ‘the ABA’) was signed by the parties. The opposite party was under obligation to hand over the possession of the apartment within 42 months with and additional 6 months as grace period as per the ABA which he failed to do. The complainant’s request is for refund of the amount deposited along with interest along with compensation towards mental agony and litigation costs.

2.     In brief, the admitted facts are that the complainant had booked a flat on 13.03.2013 in the above-mentioned project of the opposite party for a total sale consideration of Rs. 1,99,20,649/-. Flat no.CD-A1-07-702 admeasuring 1867.01 sq ft was allotted to the complainant. As per the ABA signed on 10.07.2014 possession was to be handed over by 10.07.2018. Despite payment of Rs. 61,47,776/- as on the date of filing of this application, construction has not been completed and possession has not been offered.  The complainant has prayed for refund of the amount deposited along with interest @ 18%, compensation for mental agony and litigation costs.

3.     The opposite party has resisted the claim through several contentions and advanced various reasons for the delay and requested that the complaint be dismissed.

4.     Parties led their evidences. We have heard the arguments and perused the relevant records. During the course of arguments, learned counsel for the complainant relied upon the judgment of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Ors (2021) 3 SCC 241 decided on 11.01.2021 as per which the Hon’ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete towers in Phases I and II of the project. However, occupancy certificate from the statutory authority was available only in respect of certain towers. The Apex Court had balanced the interests of the complainants and the opposite parties by equitably allocating the obligations for a full refund of payment with interest to the allottees in the case of incomplete flats for the period between the committed date and the date of making of the offer of possession and placed an obligation on complainants who had prayed for refund where occupancy certificate was available to accept possession with compensation for delay.

5.     The opposite party has not denied the fact of delay in the project due to various reasons, although the quantum of delay is contested on the ground that the ABA provided for the period of construction to be reckoned from the date of approval of the Fire Fighting Scheme which was 27.11.2014 as per which, the date of offer of possession should be considered as 27.11.2018. It is not denied that the tower in which the flat is located has not been completed and that an occupancy certificate not been obtained.  

6.     We have considered the arguments of the learned counsel for the parties and have perused the order of the Hon’ble Supreme Court in Abhishek Khanna (supra). The present case is squarely covered by this judgement. It is apparent that the flat allotted to the complainant is in Tower A-1, Phase II which falls under Chart B of the order in Abhishek Khanna (supra). The complainant’s prayer is for refund of the money deposited with the opposite party along with interest and other reliefs in view of the inordinate delay in completion of the project.

7.     In Abhishek Khanna (supra) the Hon’ble Supreme Court has discussed at length whether the period of handing over the possession is to be calculated with effect from the date of issue of fire NOC or from date of sanction of building plans to calculate the due date of offer of possession and decided as under:

25.9.     The 42 months’ period in Clause 13.3 of the Agreement for handing over possession of the apartments would be required to be computed from the date on which fire NOC was issued, and not from the date of the building plans being sanctioned.

25.11    On 27-11-2014, the Director, Haryana Fire Service granted approval to the Fire Fighting Scheme subject to the conditions mentioned therein. The computation of the period for handing over possession would be computed from this date.  The commitment period of 42 months plus the grace period of 6 months from 27-11-2014 would be 27-11-2018, as being the relevant date for offer of possession.  The aforesaid chronology for obtaining fire NOC would indicate a delay of approximately 7 months in obtaining the fire NOC by the developer.

8.     The Hon’ble Supreme Court has also discussed at length the entitlement of complainants/ allottees who had not been offered possession and the construction of the towers in which their flats had either not been started or not completed and held as under:

47.        Insofar as the allottees in Chart B are concerned, they have paid part consideration, in most cases up to the 4th instalment till 2017, when they found that there was no progress being made in respect of the Towers in which the apartments had been allotted to them. It is an admitted position that Occupation Certificate for Towers A1, A2, A3, B7, C9 and C11, in which the allotments have been made for this category has not been issued by the Municipal Corporation.  The apartments have not been ready for allotment even as on 30.06.2020, as per the date fixed before the RERA Authority.

48.        The allottees submitted that they were facing great hardship since they had obtained loans from Banks for purchasing these apartments, and were paying high rates of interest. In 2017, when they realised that there was no construction activity in progress, they were constrained to file consumer complaints before the National Commission, and then discontinued payment of further instalments.

49.        The Developer made an alternate offer of allotment of apartments in Phase 1 of the project. The allottees are however not bound to accept the same because of the inordinate delay in completing the construction of the Towers where units were allotted to them. The Occupation Certificate is not available even as on date, which clearly amounts to deficiency of service.  The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project. The allottees have submitted that they have taken loans, and are paying high rates of interest to the tune of 7.9% etc. to the Banks.  Consequently, we hold that the allottees in Chart B are entitled to refund of the entire amount deposited by them.

52.        We are cognizant of the prevailing market conditions as a result of Covid–19 Pandemic, which have greatly impacted the construction industry.  In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount. The refund will be paid within a period of three months from the date of this judgment. If there is any further delay, the Developer will be liable to pay default interest @ 12% S.I. p.a.

9.     Therefore, following the directions of the Hon’ble Supreme Court in the case of Abhishek Khanna (supra), we issue the following directions:

1. The opposite party is directed to refund the entire amount deposited by the complainant along with interest @ 9% p.a. with effect from 27.11.2018 till the date of payment of the full amount.

2. The refund shall be paid within 3 months from the date of this order.

3. The opposite party shall be liable to pay interest @12% simple interest in case of default.

10.   The complaint stands disposed of with these directions.