JUSTICE V.K. JAIN (ORAL)

          The complainants booked a residential flat with the opposite party in the project namely Parsvnath Exotica, which the opposite party was to develop in Sector 53 of Gurgaon.  The parties entered into a Flat Buyer Agreement dated 11.10.2007 incorporating their respective obligations, followed by an EMI Agreement executed on 08.12.2007.  As per the Flat Buyer Agreement, the possession of the flat was to be delivered to the complainants within 36 months from commencement of the construction of particular block in which the flat was to be located for a grace period of 6 months, on receipt of sanction of the plan, revised building plan and approvals of all concerned authorities.  In case of delay in construction of the flat, the developer was to pay compensation to the buyer @ Rs.10/- per sq. ft. of the super area of the flat for the period of delay.  The grievance of the complainants is that the opposite party has filed to deliver upon its promise to handover possession of the flat within the grace period referred in the Buyer’s Agreement.  This is also the case of the complainants that 2/3^rd of the EMI which the opposite party was to reimburse to them under the EMI Agreement dated 08.12.2007 was reimbursed only upto November 2014 and has not been reimbursed w.e.f. December 2014.  Being aggrieved the complainants are before this Commission seeking the following reliefs:

1. That the complainants rightfully seek reimbursement of 2/3rds of EMI component not paid from December 2014 till actual date of realization of payment to the complainants as calculated at the rate of Rs. 1,24,202/- (Rupees One Lakh, Twenty Four Thousand, Two Hundred and Two only) per month. The cumulative amount of EMI reimbursement till December 2015 would amount to a sum of Rs. 14,90,424/- (Rupees Fourteen Lakh, Ninety Thousand, Four Hundred and Twenty Four Only).
2. That the respondent duly compensates for the interest losses incurred by the complainants till actual date of realization of payment. The interest loss may be calculated at the rate of 24% per annum, as is charged by the respondent to their consumers on delayed payments, per Clause 5(b) of the flat buyer agreement.
3. That the respondent duly compensates for the interest on tax losses incurred to the complainants from December 2010 till actual date of realization of payment. The tax losses amount to approximately Rs. 6,00,000/- (Rupees Six Lakh only) per annum. The interest on these losses may be calculated at the rate of 12% per annum cumulated from December 2010. The cumulative interest loss from December 2010 till December 2015 is approximately Rs. 15,00,000/- (Rupees Fifteen Lakh only).
4. That the respondent duly compensates the complainants for the mental agony and harassment to the tune of Rs. 5,00,000/- (Rupees Five Lakh only).
5. That the respondent duly compensates the complainants for additional expenses for litigation, incurred due to the callous and unresponsive attitude of respondent amounting to approximately Rs. 3,50,000/- (Rupees Three Lakh, Fifty Thousand only).

2.      The complaint has been resisted by the opposite party on several grounds including that there has been a slowdown in the economy, as a result of which, the inflow of FDI into real estate significantly dropped and investor have shyed away from the real estate market.  It is however stated in the reply filed by the opposite party that in the event of delay, the buyer is entitled only to the agreed compensation as incorporated in clause 10(c) of the Buyer’s Agreement.  It is further stated in the written version filed by the opposite party that M/s. Puri Construction Pvt. Ltd., predecessor in interest of the opposite party, had applied to the Town and Country Planning Department of Haryana on 11.12.2004 for approval of the building plans and the said approval was granted by the Authority vide letter dated 07.01.2005.  M/s. Puri Construction had further applied for permission to erect building in Pocket- B, in accordance with the plans submitted by it and the said plan was approved by Town and Country Planning Department of Haryana on 10.04.2009.  Thus, according to the opposite party, after obtaining approval to the initial building plans on 07.01.2005, plans for addition construction were submitted, which came to be approved on 10.04.2009.

3.      The learned counsel for the complainants states on instructions from the complainants that in order to avoid any further litigation and to bring the litigation to a closure the complainants are restricting their claim for compensation only to the compensation specified in clause 10 (c) of the Flat Buyers Agreement, despite the fact that they have incurred expenditure on payment of rent on account of default on the part of the opposite party in delivering upon its promise.  He further states that the complainants are not interested in taking refund and want to take possession of the flat booked by them at the earliest possible.  He therefore seeks a direction to the opposite party to complete the construction in a time bound manner and offer possession of the flat, complete in all respects, to the complainants.  He also presses for payment of the arrears of the EMI, which were reimbursable to the complainants as per the EMI agreement executed between the parties, along with future reimbursement of 2/3^rd of EMI till the possession of the flat, complete in all respects, is offered to the complainants.  In my view, none of the reliefs being pressed by the learned counsel for the complainants can be reasonably disputed on any ground whatsoever.  As far as compensation part is concerned, the opposite party itself having undertaken to pay the same compensation @ Rs.10/- per sq. ft. of the super area, it must necessarily pay the said compensation at the time possession of the flat is offered to them.  The opposite party should also complete the construction of the flat sold to the complainants in all respects and obtain the requisite completion certificate and then offer its possession.

4.      As per clause 5 of the EMI Agreement, the opposite party was required to reimburse the 2/3^rd portion of the EMI paid by the complainant on production of specific proof of the same to the bank.  The said reimbursement is to be made till the date of offer of possession of the flat to the complainants.  Since the opposite party has not reimbursed 2/3^rd EMI to the complainants after November 2014, it must necessarily pay the arrears with interest, besides continuing the reimbursement of the aforesaid EMI component in the EMI future.

5.      For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)      The opposite party shall complete the construction of the flat sold by it to the complainants vide Flat Buyer’s Agreement dated 11.10.2007, on or before 31.03.2017.  If any revised plans are to be got approved, it will be for the opposite party to get them approved at its own cost and responsibility, well in time, so that the construction of the flat can be completed in all respects by 31.03.2017.

(ii)      The opposite party shall obtain the requisite completion certificate at its own cost and responsibility on or before 30.06.2017.

(iii)     After completing the construction and taking the completion certificate as directed hereinabove the opposite party shall offer possession of the flat, complete in all respects, to the complainants on or before 31.07.2017.

(iv)    If the opposite party is not able to deliver offer of the possession of the flat on or before 31.07.2017, as directed hereinabove, it shall offer a similar flat of the same size on the same floor and in a comparable locality to the complainants at the same price, which the complainants had to pay for the flat booked by them.

(v)     The opposite party shall pay the arrears of 2/3^rd of the EMI, for the period upto May 2016, to the complainants, as per clause 5 of the EMI Agreement, along with interest on the said arrears @ 10% p.a., w.e.f. 15 days from the date of payment of those installments, which have not been reimbursed by the opposite party to the extent of 2/3^rd of the said installments.  The said payment shall be made by 30.06.2016.  The proof of payment of EMIs to the bank/financer of the complainant shall be sent to the opposite party within two weeks from today in order enable them to comply with this direction.  For future, the proof of payment of EMI shall be supplied to the opposite party on a regular basis and the payment shall be reimbursed within 15 days of such submission.  In the case of delay in reimbursement, the opposite party shall pay interest to the complainants @ 10% p.a. and the complainants shall also be entitled to seek execution through the process of this Commission.

(vi)    The opposite party shall also pay Rs.10,000/- to the complainants towards the cost of litigation.

(vii)      The opposite party shall not increase the size of the flat sold to the complainants without their consent.