JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

The predecessor in interest of the complainant booked residential flat in a project namely ‘Parsvnath Exotica’ which the OP was to develop in Sector-53 of Gurgaon and executed Builder Buyers Agreement on 28.09.2012. Later, the said allotment was purchased by the complainant and was transferred in his name.  The allotment was purchased more than one year after the execution of the Builder Buyers Agreement.  The following are the particulars of the allotment made in this complaint including the date of execution of the Builder Buyer Agreement, the agreed consideration and the amount stated to have been paid to the OP.              

3.      Clause 10(a) of the agreement reads as under:

10 (a) Construction of the flat is likely to be completed within a period of thirty six (36) months of commencement of construction of the particular block in which the flat is located, with a grace period of six (6) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the developers and subject to timely payments by the Flat Buyers in the Scheme.  No claim by way of damages/compensation shall lie against the developers in case of delay in handing over possession on account of the said reasons.  The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the flat for the purpose of this clause/agreement.

          It would thus be seen that the construction was expected to be completed within 42 months of the commencement of the particular blocks in which the flats were located.  It is admitted by the learned counsel for the parties appearing before me that construction in block  C-4 had commenced on 10.01.2012.  Therefore, the construction ought to have been completed latest by 10.07.2015.  However, the possession of the flats has not been offered to the complainant till date.  The learned counsel for the OP states that though they have applied for the issuance of the requisite Occupancy Certificate, the said Occupancy Certificate has not been issued so far. 

4.      The complaint has been resisted by the OP which has admitted the allotment as well as the execution of the agreement.  It is an admitted position before me that in the written version filed by the OP, the complaint has been opposed on the grounds which this Commission has already rejected in several Consumer Complaints including CC No.127/2017 Mallika Raghavan Vs. Parsvnath Developers Limited decided on 19.04.2018. 

5.      The decision of this Commission in Mallika Raghavan (supra), to the extent it is relevant, reads as under:    

2.      The complaint has been resisted by the opposite party which had admitted the allotment made to the complainant and the execution of the agreement with her.  It is alleged in the written version filed by the opposite party that the construction was delayed on account of the reasons beyond the control of the opposite party.  The aforesaid reasons are stated to be (i) lack of adequate sources of finance, (ii) shortage of labour (iii) rise in manpower material cost and (iv) approval and procedural difficulties.

3.      It is also claimed that out of 18 towers in the aforesaid project, possession has been handed over in 11 towers and occupancy certificate has also been applied with respect to the five out of the remaining seven towers.  It is also alleged in the written version that the fit outs have already been offered to the allottees of towers D-4, D-5, D-6 and B-1.

4.      The learned counsel for the complainant has drawn my attention to the decision of this Commission dated 21.1.2016 in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd., wherein the opposite party had allotted a flat in Tower D-4 of this very project to the complainant therein but had failed to deliver possession of the said flat to hm.  The complaint instituted by Col. Rajyavardhan Singh Rathore was resisted by the opposite party, primarily on the ground that the recession had hit Indian economy over past two years and Real Estate Sector was one of the worst hit sectors, as a result of said slow down.  The aforesaid plea taken by the opposite party was rejected by this Commission, noticing that the slowdown in the economy was not one of the grounds which could justify the delay in completion of the construction, since Clause 10(a) of the Agreement between the parties referred only to restrictions/ restraints from any Court / Authority, non-availability of building material, disputes with contractors / workforce etc., and the circumstances beyond the control of the developers.  It was noted that there was no evidence of the opposite party having constraints on account of such a reason in carrying out or completing the construction of the flat.  It was further noticed that there was no evidence of non-availability of building material or the opposite party having dispute with any contractor / workforce deployed at the site of the construction.  It was held that the delay in completion of the project unjustified.  The opposite party was therefore, directed to complete the construction of the flat in all respects, deliver its possession within eight months from the order of this Commission and also  pay compensation in terms of the said order to the complainants therein namely Col. Rajyavardhan Singh Rathore.

5.      In my view, lack of adequate sources of finance with the opposite party cannot be a justified ground for the delay in completion of the construction.  It was for the opposite party to arrange the finance required for completion of the project within the time stipulated in this regard and it has only to blame itself if it could not arrange the requisite finance.  As far as shortage of the labour is concerned, there is no evidence of the labour not being available during the relevant period.  Rise in the man power and material cost or approval and procedural difficulties cannot justify the delay in completion of the project. 

6.      During the course of hearing, I asked the learned counsel for the opposite party as to when it will be able to give possession of the flat to the complainant after obtaining the requisite occupancy certificate.  The learned counsel for the opposite party states that though they have already applied for the grant of the requisite occupancy certificate she is not in a position to commit any time limit within which they would obtain the requisite occupancy certificate from the concerned authorities.  In my view, the opposite party cannot be given indefinite time period to obtain the requisite occupancy certificate and it should obtain the same in a time bound manner at its own cost and responsibility.

6.      For the reasons stated hereinabove, I hold that the complainant is entitled to possession of the allotted flat alongwith appropriate compensation.  It is an admitted position that the allotment was purchased by the complainant more than one year after the Builder Buyer Agreement had already been executed.  Relying upon the decision of this Commission in Satish Kumar Pandey & Ors. Vs. Unitech Limited in CC No.427 of 2014 and connected matters decided on 08.06.2015, the complaint is disposed of with the following directions:

(i)      The OP shall obtain the requisite Occupancy Certificate from the concerned authorities at its own cost and responsibility and offer possession of the allotted flat to the complainant, complete in all respects on or before 30.06.2019. 

(ii)      The OP shall pay compensation to him in the form of simple interest @ 8% per annum w.e.f. 10.07.2015 till the date on which the possession in terms of this order is actually offered to him, after obtaining the requisite Occupancy Certificate.

(iii)     The balance amount, if any, shall be adjusted out of the compensation payable to the complainant, in terms of this order.

(ix)     The opposite party shall pay Rs.25,000/- as cost of litigation to the complainant.

(x)     The increase, if any, in the stamp duty after 30.06.2010, shall be borne by the opposite party.

(xi)     Compensation, if any, already paid to the complainant shall be adjustable out of the amount payable to him, in terms of this order.