1. Heard Mr. Rohit Oberoi, Advocate, for the complainants and Mr. Paras Choudhary, Advocate, for the opposite party. 2. Mrs. Purnima Mehra and Mr. Vijay Shankar Mehrotra have filed above complaint for directing the opposite party to pay (i) Rs.11181576.14 with interest @12% per annum, from 31.07.2007 till 31.12.2007, amounting to Rs.9879868/- with pendent-lite and future interest at the same rate; (ii) Rs.6708945.70, as loss of appreciation @10% p.a. since October, 2010 till December, 2016; (iii) Rs.1000000/- as compensation for mental agony and harassment; (iv) Rs.200000/- as costs of litigation; (v) cost of the present complaint and (vi) any other relief which is deemed fit and proper in the facts 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 launched a group housing project in the name of “Star Court” at Jaypee Greens, Greater Noida in the year 2007 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a flat on 30.07.2007 and deposited Rs.940000/- vide cheque no.779218. The opposite party allotted Unit Reference No.STR-803, 8th Floor, Building No.T-2, super area of 1856 sq. ft. approx., for a consideration of Rs.9400000/- vide Provisional Allotment Letter dated 18.12.2007. As per demand, the complainants paid Rs.940000/- on 30.07.2007, through cheque no. 779218; Rs.940000/-on 28.10.2007, through cheque no.783232; Rs.1502800/- on 29.04.2008, through cheque no.648583; Rs.240000/- on 27.02.2009, through cheque no. 928311; Rs.5975000/- on 02.03.2009, through cheque no.033029 and Rs.1583776.14 on 05.08.2014, through cheque no.186161 (total Rs.11181576.14). For payment of instalment, the complainant took loan from Axis Bank, which has been repaid and the bank has issued “no objection certificate” to the complainants on 21.03.2014. On 02.05.2014, the opposite party issued a letter of offer of possession of apartment and demanded a sum of Rs.1619175.44, which included Rs.35399.30/- as interest as on 02.05.2014 and the charges of increased super area from 1856 sq.ft. to 2153.74 sq.ft. The complainants deposited Rs.1583776.14 on 05.08.2014 through cheque No.186161. On 12.08.2014, the complainants raised protest for charging interest of Rs.35399.30 towards late payment of four days for a sum of Rs.5975000/- demanded on 26.02.2009 and due date was 27.02.2009 and paid on 02.03.2009 and increase of 10% of sale consideration. Even after payment, possession was not delivered to the complainants. The complainants gave a letter dated 14.11.2014 to the opposite party to refund their amount with interest as possession was unreasonably delayed and also gave an email on 17.11.2014 in this respect. The opposite party vide email dated 23.01.2015, informed that the request for refund would be put up before the management. The opposite party vide email dated 10.02.2015 asked the complainants to surrender all the documents relating to the flat. When the complainants visited the office of the opposite party in March, 2015 for surrender of the documents relating to the flat, then the opposite party informed that at present request for refund was not being accepted. When neither possession was given nor refund for a long time, then the complainants gave an email dated 23.10.2016, for refund of their amount with interest. The opposite party, vide email dated 05.10.2016, informed that in case of cancellation of the agreement, 10% amount would be deducted, which was protested by the complainants, vide email dated 11.11.2016. On 07.01.2017, the complainants gave a legal notice to the opposite party calling upon them to refund their entire amount with interest @12% per annum. In spite of service of the notice, the opposite party did not respond, then this complaint was on 12.04.2017. 4. The opposite party filed its written reply on 02.01.2018 and contested the complaint. In the written reply, the opposite party did not dispute, booking of the flat by the complainants on 30.07.2007, allotment of Unit Reference No.STR-803, 8th Floor, Building No.T-2, super area of 1856 sq. ft. approx., for a consideration of Rs.9400000/- vide Provisional Allotment Letter dated 18.12.2007 and deposits made by the complainants. The opposite party took plea that due to force majeure reasons, i.e. delay in government approvals, shortage of labours, scarcity of water as National Green Tribunal has restricted the builders from using ground water for construction, vide order dated 11.01.2013, restriction on excavations and legal impediments, the construction was delayed. The opposite party was entitled for extension of the period of force majeure under clause-7.1 of Standard Terms and Conditions. Under clause-7.2, interest of the buyers have been protected by providing compensation for delay, which was given to the complainants i.e. Rs.324800/- in final demand letter dated 02.05.2014. Under clause-6.8 of Standard Terms and Conditions, it was made clear that super area was tentative. Super area has been increased to the extent of 16.04%, while the opposite party has charged only 10% more for increase of area and given rebate of Rs.567989/-. The complainants have not paid amount of interest of Rs.74161/-. The opposite party completed construction and obtained “occupation certificate” on 28.11.2013. The opposite party through out acted in bonafide and efficient manner. The complaint has been filed suppressing material facts and is liable to be dismissed. 5. The complainants filed Rejoinder Reply, Affidavit of Evidence of Vijay Shankar Mehrotra and documentary evidence. The opposite party filed Affidavit of Evidence of Navneet Kumar Saxena and documentary evidence. Both the parties have filed their written synopsis. 6. We have considered the arguments of the counsel for the parties and examined the record. Though in written reply, the opposite party has not raised the plea that the complaint is time barred but in written arguments, the opposite party has raised the plea that the complaint is time barred and no application for condondation of delay has been filed. According to the opposite party, the complainants, vide letter dated 14.11.2014, requested for refund of their amount as such the complaint could have been filed within two years i.e. 13.11.2016, while it was filed on 11.04.2017. The opposite party in its email dated 05.11.2016 (Annexure-C-9), acknowledged the right of the complainants for refund but said that 10% earnest money would be deducted as such fresh cause of action arose on 05.11.2016 under Section 18 of Limitation Act, 1963, which is applicable by virtue of Section 29 thereof. The complaint is well within time from 05.11.2016. 7. The opposite party has raised plea of force majeure for delay in construction. Allotment letter provides 39 months period, which expired on 17.02.2011. The opposite party has realized about 95% of basic sale consideration up to 02.03.2009. As such, plea of force majeure is not liable to be accepted. The counsel for the opposite party submitted that the construction was completed and “occupation certificate” was obtained on 28.11.2013 and possession was offered on 02.05.2014, as such, the complainants cannot claim for refund thereafter as held by Supreme Court in IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241. In the present, after offer of possession letter dated 02.05.2014, the complainants deposited Rs.1583776.14 on 05.08.2014 through cheque No.186161. On 12.08.2014, the complainants raised protest for charging interest of Rs.35399.30 towards late payment for four days for a sum of Rs.5975000/- demanded on 26.02.2009 and due date was 27.02.2009 and paid on 02.03.2009 and increase of 10% of sale consideration. This shows that while issuing demand on 26.02.2009, only one day time was given for depositing it, which was unreasonable. That amount was deposited within four days as such charging interest was illegal. The opposite party did not give any reply of it. Thus in spite of full payment, the opposite party failed to deliver possession to the complainants, within 45 days of the deposit of entire amount. In such circumstance, demand for refund of money cannot be denied. O R D E R In the result, the complaint is allowed with cost of Rs.one lac. The opposite party is directed to refund entire amount deposited by the complainants with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment. |
