1.      Heard Mr. Ashish Upadhyay, Advocate, for the complainants and Mr. Pinaki Mishra, Sr. Advocate, assisted by Ms. Bina Gupta, Advocate, for opposite party.

2.      Reena Dang and Praveen Kumar Dang have filed above complaint, for directing the opposite party to (i) handover possession of Apartment No. 2101, in the project “Provence Estate”, complete in all respect, as per specification, with all permission including “completion certificate” & “occupation certificate” and execute conveyance deed within six months; or in alternative (ii) refund entire amount deposited by the complainants with interest @24% per annum compounded quarterly from the date of respective deposit till the date of refund; or in alternative (iii) appoint any renowned Architect/Civil Contractor and handover the project with all drawing/approvals and other documents to it, with direction to complete the construction and handover possession after taking balance consideration from the complainant and other allottees; (iv) compensate the complainants for the rentals @Rs.30/- per sq.ft. on super area from 01.11.2014 till the delivery of possession; (v) pay Rs.5/- lacs, as compensation for the expenses incurred prior to filing the complaint; (vi) pay litigation costs; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that the opposite party 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, representing as a Krrish Group Company, launched a group housing project, in the name of “Provence Estate” at village Gwal Pahari, tehsil Sohna, district Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainants booked an apartment and deposited booking amount of Rs.3800000/- on 17.08.2011. The opposite party allotted Apartment No.1502, Tower-C super area 5800 sq.ft. @Rs.5300/- per sq.ft, vide letter dated 02.11.2011. Payment plan was “construction link payment plan”. The complainants through letter dated 02.02.2012, requested to allot Apartment No.2101, Tower-C, in place of Apartment No.1502 and allot one additional car parking, which was accepted by the opposite party vide letter dated 06.02.2012. For Apartment No.2101, Tower-C, preferential location charge @Rs.100/- per sq.ft. was charged. The opposite party executed Apartment Buyer’s Agreement dated 15.02.2012 in favour of complainants, in which basic sale price was mentioned as 30740000/-. Clause-3.1 of the agreement provides 36 months period from the date of commencement of construction or execution of the agreement, whichever is later for delivery of possession with grace period of 180 days. The date of agreement was later as such 36 months period expired on 14.02.2015 and grace period of 180 days expired on 14.08.2015. For timely payment of the instalments, the complainants took home loan and made timely payments and till January, 2015, total Rs.30201912/- has been deposited. Although the opposite party realized about 80% to 90% of consideration from the home buyers of the project but the construction was progressed with slow pace. A group of home buyers of the project held a meeting with Mr. R.P. Gupta, CEO of the Krrish Group on 10.03.2015, who assured for undertaking construction with full swing. But no progress was seen. The home buyers of the project form an association and got it registered under Haryana Registration and Regulation of Societies Act, 2012 on 25.09.2015. The association wrote a letter dated 18.11.2015 to the Managing Director but no progress was seen. The opposite party supplied a list of the home buyers, showing dues against them. List shows that the opposite party had collected about Rs.560/- crores from the home buyers but actual construction of Rs.200/- crores was not done. The Association made a complaint to Haryana Government on 24.06.2016. but nothing was done. The association filed CC/1508/2016, which was dismissed as withdrawn with liberty to filed individual complaints, vide order dated 20.12.2016. Then this complaint was filed on 09.02.2017, alleging deficiency in service.        

4.      The opposite party has filed its written reply on 19.04.2017, in which, booking of the apartment, allotment of the apartment, execution of Apartment Buyer’s Agreement and the deposits made by the complainants, have not been disputed. The opposite party stated that clause-3.1 of the agreement was subject to force majeure. The complainants and other allottees of the project used to deposit the instalments with delay, which created paucity of the fund. Due to delay in payment of instalment Rs.652607/- was payable by the complainants as interest for delay payment as on 27.03.2017.  The opposite party supplied list of 137 allottees, who were defaulters in payment of instalments. It has been denied that the opposite party had collected Rs.560/- crores from the buyer of the project. It has been denied that the opposite party syphoned the fund of this project. The opposite party had an escrow account with Punjab National Bank for utilization by the apartment buyers. National Green Tribunal banned use of ground water for construction purposes in the year 2013. The opposite party had to arrange water from alternate sources, which increased the cost and construction had become slow. There had been scarcity of labour during this period. The construction used to be stopped by National Green Tribunal time to time due to environmental problem. The project had been steadily progressing and Tower-A and Tower-B are near completion. The work of Tower-C was also going on. Some delay in civil construction work in a mega housing housing project was usual. Interest of the buyers have been secured under clause-3.3 of the agreement by providing delay compensation. Exorbitant claim have been made in the complaint. The complaint has no merit and liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Reena Dang Singh and documentary evidence and Additional Affidavit of Praveen Kumar Dang. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents Sapan Bebarta of and documentary evidence. The complainants has filed written synopsis.

6.      During pendency of this complaint, Meera Ahuja and others, allottees of the project, filed CP No.1722/ND/2018, under Section-7 of Insolvency and Bankruptcy Code, 2016, seeking refund of their money. National Company Law Tribunal, Delhi appointed Interim Resolution Professional on 28.11.2019. Amit Katyal challenged the order dated 28.11.2019 in CA (AT) (Insolvency) No.1380 of 2019, which was dismissed vide order dated 09.11.2020. Amit Katyal filed Civil Appeal No.3778 of 2020, before Supreme Court. Meera Ahuja and others moved IA/18679/2020, for permitting to withdraw CIRP proceeding and corporate debtors has agreed to pay Rs.33602000/- to them. 82 home buyers also appeared before Supreme Court and a Proposed Settlement Plan was recorded on 03.02.2022, under which the opposite party undertook to complete the project within one year and handover possession and Adjudicating Authority was directed to allow withdrawal of the application under Section-7 and Civil Appeal No.3778 of 2020 was disposed of vide order dated 03.03.2022. In the meantime, IRP issued public announcement on 10.11.2020 and constituted Committee of Creditors on 23.11.2020. The opposite party completed construction and applied for issue of “occupation certificate”, which was issued on 29.10.2019. IRP issued possession notice to the complainants on 25.06.2020.

7.      This Commission, vide order dated 13.04.2023, permitted joint inspection with photography and videography on 19.04.2023. The complainants filed photographs taken during inspection on 19.04.2023. Thereafter, arguments were again heard on 21.04.2023.

8.      We have considered the arguments of the counsel for the parties and examined the record. Clause-3.1 of the agreement provides 36 months period from the date of commencement of construction or execution of the agreement, whichever is later for delivery of possession with grace period of 180 days. The date of agreement was later as such 36 months period expired on 14.02.2015 and grace period of 180 days expired on 14.08.2015. The opposite party disputed timely payment of instalment by the complainants and stated that due to delay in payment of instalment, Rs.652607/- was payable by the complainants as interest for delay payment as on 27.03.2017. But statement of account relating to the complainants shows that till January, 2015, they have deposited total Rs.30201912/-. The opposite party applied for issue of “occupation certificate, which was issued on 29.10.2019 and possession was offered on 25.06.2020. As such there was delay in offer of possession.

9.      The opposite party took plea that construction was delayed for force majeure reasons. Payment plan was “construction link payment plan”. The opposite party has realized instalments of various level of construction. Instalment No.11 i.e. “on completion of finishing and flooring” was realized on 10.01.2015, as such, they cannot be permitted to say that the construction was delayed for force majeure reasons. However, taking judicial notice of demonetization of currency notes of rupees 500 and 1000 in November, 2016, which affected civil construction work for a period of six month and pandemic Covid-19, which spread in the country in March, 2020 and consequent lockdown, the opposite party is entitled for 10 months period for extension. Last instalment “on offer of possession” was demanded on 25.06.2020. It is usual practice among the builders to do finial finishing work after deposit of last instalment. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512 and DLF Homes Developers Ltd. Vs. Capital Green Flat Buyers Association, (2021) 5 SCC 537, held that interest @6% per annum on the deposit of home buyer from due date of possession till the date of offer of possession, was just delay compensation. Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna (2021) 3 SCC 241 has held that in case after obtaining occupation certificate possession is offered, then home buyer is contractually obligated to take possession.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to supply a fresh statement of account giving delay compensation to the complainants in the form of interest @6% per annum on their deposit from 15.08.2015 till 25.06.2020 (excluding 10 months period), within a period of one month from the date of this judgement. The opposite party is entitled to charge interest @9% per annum on the excess amount after adjusting delay compensation, from 26.06.2020. If any amount is payable by the opposite party, it will be paid to the complainants along with statement of account with interest @9% per annum from 26.06.2020 till the date of payment. If any amount will be payable by the complainants, he shall be given one month time to deposit it. After settlement of the account, the opposite party will handover possession of the apartment to the complainants, complete in all respect as per specification and execute conveyance deed in their favour within two months thereafter.