1.      Heard Ms. Ishita Singh, Advocate, for the complainant and Mr. Prabhakar Tiwari, for the opposite party.

2.      Naveen Rai has filed above complaint, for directing the opposite party to (i) refund Rs.4021239/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.100000/-, as costs of 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. Parsvnath Developers Limited (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 “Parsvnath Privilege” at Plot No.11, Chorosia Estate, Sector-Pi, Greater Noida, in the year, 2006 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, Mr. Ramji Das Nagpal (the predecessor-in-interest of the complainant) booked a flat and deposited booking amount of Rs.100000/- on 29.04.2006, Rs.321687/- on 27.04.2007 and Rs.900000/- on 18.06.2007. The opposite party allotted Unit No.901 Tower-T-15 on 22.05.2007 to him. Mr. Ramji Das Nagpal transferred the said flat to the complainant on 27.09.2007 with previous permission of the opposite party. The opposite party executed Flat Buyer Agreement on 12.10.2007, in favour of the complainant. Clause-10(a) of the agreement provides that the flat is likely to be completed within 36 months from the date of commencement of the construction. The complainant opted for “construction link payment plan”. As per demand, the complainant deposited Rs.94150/- on 06.11.2007, Rs.373522/- on 03.07.2008, Rs.663703/- on 14.01.2011, Rs.543103/- on 16.07.2012, Rs.300000/- on 16.09.2012, Rs.241691/- on 24.12.2012, Rs.241692/- on 28.02.2013 and Rs.241691/- on 07.08.2013 (total Rs.4021239/-). Although the opposite party realized entire consideration till 07.08.2013 but, the construction was not completed and unreasonably delayed. The complainant through letter dated 31.01.2017, demanded for refund of his amount. The opposite party did not respond. Then this complaint was filed on 10.04.2018, alleging deficiency in service.        

4.      The opposite party has filed its written reply on 22.02.2019, in which, booking of the flat, allotment of the flat, execution of agreement and the deposits made by Mr. Ramji Das Nagpal and the complainant, have not been disputed. The opposite party stated that the construction was delayed for force majeure reasons and liable to be condoned under clause-10(a) of the agreement. Global recession hit the economy in 2007-2008, which largely affected real estate sector. After launch of the projected, booking of the units were very less in comparison of the numbers of the units. Even after booking several allottees committed defaults in payment of instalment and unreasonably delayed payment. Due to which, the opposite party faced problem of paucity of fund from very beginning. Despite all these problems, the opposite party is continuously progressing with the project and completed construction of Tower-17 and 18. Superstructure of the Tower-15 has been completed. The opposite party is making all efforts to complete the construction at the earliest. The complainant is an investor and not a consumer. The agreement does not provide for interest in case of refund, the complainant has claimed interest exorbitantly. The complaint has no merit and liable to be dismissed.

5.      The complainant filed Rejoinder Reply and Affidavit of Evidence of Naveen Rai and documentary evidence. The opposite party filed Affidavit of Evidence of Ajay Kashyap and documentary evidence. Both the parties have filed their written synopsis.     

6.      We have considered the arguments of the parties and examined the record. Clause-10(a) of the agreement dated 12.10.2007 provides that the flat is likely to be completed within 36 months from the date of commencement of the construction. The period of 36 months expired in October, 2010. Payment plan was “construction link payment plan”. The opposite party realized entire consideration till 07.08.2013 but, the construction was not completed and unreasonably delayed. The opposite party has filed photographs of the building along with Affidavit of Evidence of Ajay Kashyap filed on 08.02.2022 and stated that the construction was completed and fit-out possession was offered but “Occupation Certificate” has not been obtained till today. In the absence of “Occupation Certificate”, possession cannot be handed over, legally. There is no allegation that the complainant has committed default in timely payment of the instalment. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the home buyer cannot be made to wait for possession for an unlimited period.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant (including the amount deposited by Mr. Ramji Das Nagpal) with interest @9% per annum from date of respective deposit till the date of refund, within a period of two months from the date of this judgement.