JUSTICE V.K. JAIN, (ORAL)

The complainants booked a residential flat with the OP in a project ‘Parsvanath Exotica’ which the OP was to develop in Sector 53 of Gurgaon. Unit No.B-1-1201 PH in Tower B1 was allotted to them for a basic price of Rs.32323750/-. The parties then executed a Flat Buyers Agreement on 7.6.2006 incorporating their respective obligations in respect of the said allotment. In terms of Clause 10(a) of the Agreement, the construction was likely to be completed within 36 months of commencement of construction of the particular block in which the flat was located, with a grace period of six months. The construction ought to have been completed by May 2011, as can be inferred from the final Statement of Account issued to the complainants wherein special rebate on account of delay possession compensation for the period from May 2011 to July 2013 was credited in his account.

2.      Vide letter dated 30.12.2014, the OP informed the complainants interalia as under:-

“We would like to inform you that our Management is ready to give you further discount of Rs.8,16,600/- in lieu of not providing the items like Split Air Conditioners, AC Piping, Wooden Flooring, Internal Painting,  Modular Kitchen, False Ceiling, Chinaware, C P Fitting, Electric Wire and Switches, etc. and same is agreed by you. 

Company is giving you the physical possession of your above-mentioned .unit on “As is where is basis ” for fit outs.

As per our offer letter for Fit outs dated 16^th June 2014, if you take the physical possession of your unit on “As is where is basis”, then the refundable amount was Rs.1,33,051.31, now with further discount of Rs.8,16,660 which is approved by the management, the refundable amount is Rs.9,49,651. 31, after adjusting an amount of Rs.3,26,948 towards VAT payment an excess amount is Rs.6,22,703. 31 and same is refunded to you by Second Week of April 2015 by A/C payee Cheque.”

In terms of the aforesaid offer of the OP, the complainants took physical possession of the unit for fit outs on 1.8.2015 agreeing to complete the works mentioned in the possession letter dated 1.8.2015 at his own cost. The grievance of the complainants is that after taking possession for fit outs, when they have approached the OP for execution of the conveyance deed of the aforesaid unit, it was denied on the ground that the requisite Occupancy Certificate had not been obtained. Being aggrieved, the complainants are before this Commission with the following prayers:-

“a) Direct the Opposite Party to handover legal possession of the Unit to the Complainant(s) which is complete in all respects and in conformity with the Flat Buyer Agreement and for the consideration mentioned therein, along with the completion certificate and all other additional/requisite permissions for the same.

b)  Direct the Opposite Party for an immediate 100% refund of the total principal amount paid by the Complainant(s), along with a penal interest of 18% per annum from the date of receipt of payments made to the Opposite Parties, in the event that the requisite permission cannot be obtained from the proper authorities within a period of 4 weeks or as stipulated by this Hon’ble Commission;

 c)  Direct the Opposite Party to pay interest @ 12% per annum on the amount deposited by the Complainant(s) with the Opposite Party, with effect from the date of delivery promised till the date of actually getting the requisite permissions to make the possession of the Unit legal possession and after obtaining the Completion Certificate by the Opposite Party in the project “Parsvnath Exotica" along with an necessary documents and common areas and facilities as promised during the initial booking made by the Complainant(s); 

d)  Direct the Opposite Patty to refund the amount of Rs.9,39,852/- (Rupees Nine Lakhs Thirty Nine Thousand Eight Hundred and Fifty Two Only) that was promised to be refunded by the Opposite Party by 18.06.2015 along with interest @ 12% per annum till the date of actual realization.

e)  Direct the Opposite Party to explain the increase in super area of 205 Sq. Ft. with proper maps, markings and on failure to do so refund the excess amount of Rs.9,73,750/- (Rupees Nine Lakhs Seventy Three Thousand Seven Hundred and Fifty Only) claimed on account of increase in area including the amount of interest free security deposit, maintenance charges and sinking fund for the increased area.

 f)  Direct the Opposite Party to pay Rs.6,000/- (Rupees Six thousand Only) per day to the Complainant(s), in case of failure to provide the legal possession within the stipulated time as directed by this Hon’ble Commission;

 g)  Direct the Opposite Party to pay compensation of Rs.30,00,000/- (Rupees Thirty Lakhs Only) to the Complainant(s), before this Hon'ble Tribunal, for mental agony, harassment, discomfort and undue hardships caused to the Complainant(s)as a result of the above acts and omissions on the part of the Opposite Party; 

3.      The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the agreement executed with them. The delay in competition of the construction is sought to be justified primarily on  the grounds which this Commission has already rejected vide its order dated 30.7.2018 in CC No.1878 of 2016 – Rohit Agarwal & Anr.  Vs. M/s Parsvnath Developers Ltd. & Anr.

4.      The decision of this Commission in Rohit Agarwal & Anr. (supra) to the extent it is relevant, reads as under:-

“The grounds on which the complaint has been resisted have already been rejected by this Commission in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd. decided on 21.1.2016  and Consumer Complaint No.127 of 2017 – Mallika Raghavan Vs. Parsvnath Developers Ltd. decided on 19.4.2018. The decision of this Commission in   Mallika Raghavan (supra) to the extent it is relevant, reads as under:-

“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.” 

In view of the decision in Rohit Agarwal (supra)  and Col. Rajyavardhan Singh Rathore  (supra), the aforesaid grounds need not be examined afresh in this complaint and are rejected for the reasons stated in the aforesaid orders of this Commission.

5.      During the course of hearing, I asked the learned counsel for the OP as to whether they have obtained the requisite occupancy certificate in respect of the flat allotted to the complainants. The learned counsel for the OP states that they applied for the Occupancy Certificate way back in the year 2013 but the same has not been issued till date by the concerned Authority. The learned counsel for the complainants states that the possession for the limited purpose of carrying out fits out without occupancy certificate is of no use to the complainants who have not been able to use the allotted flat despite having taken its physical possession in  incomplete condition on 1.8.2015.  The complainants have also filed an affidavit stating therein that they have not used the aforesaid flat since the time possession for the limited purpose of carrying out fit outs was taken on 1.8.2015. The learned counsel for the complainants further states on instructions that the complainants want to surrender the said flat to the OP and want refund of the principal amount paid by them along with compensation which they are limiting to interest @ 10% p.a., w.e.f. the date of each payment till 1.8.2015. In view of the concession given by the learned counsel for the complainants on instructions from complainant No.1 Mr. R.S. Chadha, who is present in the Court, the complaint is disposed of with the following directions:-

1. The OP shall refund the entire principal amount of Rs.31107563/- to the complainants along with compensation in the form of simple interest @ 10% per annum from the date of each payment till 1.8.2015.

2. On receipt of the aforesaid payment, the complainants shall deliver back the physical possession of the allotted flat to the OP within one week of receiving the said payment.

3. The complainants shall not create any third party interest in the allotted flat nor shall they induct any other person in the said flat.

4. The payment in terms of this order shall be made within three months from today.

5. The OP shall also pay Rs.25,000/- as cost of litigation to the complainants.

6. If payment in terms of this order is not made within three months from today, the complainants shall also be entitled to further interest @ 10% p.a. from the date of institution of this complaint till the date of refund in terms of this order.