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

Two persons, namely, Dhanraj Arora and Jitender Rajpal booked a residential flat with the opposite party, namely, Parsvnath Hessa Developers Ltd., in a project namely ‘Parsvnath Exotica’ which the opposite party was to develop in Sector 53 of Gurgaon. The land on which the project was to be developed was owned by Parsvnath Developers Ltd.  Flat No. B-6-401 in tower B-6 of the aforesaid project was allotted to them for a consideration of Rs.2,41,53,750/-.  They executed a flat buyer agreement with the developer, incorporating their respective obligations in respect of the aforesaid transaction.  As per Clause 10(a) of the said agreement, the construction of the flat was likely to be completed within a period of 36 months from the commencement of the construction of the particular block in which the flat was located or 24 months from the booking of the flat, whichever was later, with a grace period of six months.  It is admitted before me that the construction of the Tower B-6 commenced on 04.5.2011.  The possession, therefore, ought to have been delivered by 04.11.2014, inclusive of the grace period of six months.  The complainants purchased the aforesaid allotment from Shri Dhanraj Arora and Shri Jitender Rajpal and the transfer of the allotment was endorsed by the developer on 16.3.2012.  The grievance of the complainants is that the possession of the flat has not even been offered to them despite they having already paid a sum of Rs.2,35,36,214.63 to the developer.  The complainants are, therefore, before this Commission, seeking possession of the aforesaid flat within a period of eight months of this complaint or refund of the amount paid to the opposite party, along with compensation etc.

2.      The OP has filed written version resisting the complaint but has admitted the allotment made to their predecessor in interest as well as the transfer of the said allotment in favour of the complainants. The payment received in respect of the above-referred flat has  also not been disputed by the OPs. It is alleged 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.      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.” 

4.      I specifically asked the learned counsel for the opposite parties as to whether they are in a position to give legal possession of the allotted flat to the complainants. The learned counsel submits that they are yet to receive the requisite Occupancy Certificate though they have already applied for the same. He further states that since the issuance of the Occupancy Certificate is not in their hands, they are not a position to commit any particular time-limit within which they would obtain the requisite Occupancy Certificate from the concerned authorities. As noted earlier, the complainants wanted possession of the flat within 8 months of the institution of the complaint. Alternatively they are seeking refund of the amount paid by them to the opposite party along with compensation etc. More than above one year and nine months have expired since this complaint was instituted. Considering that the possession of the flat ought to have been delivered by 4.11.2014 inclusive of the grace period of 6 months, the complainants cannot be compelled to wait further for the possession of the allotted flat. This is more so, when the OP neither possesses the requisite Occupancy Certificate nor is it in a position to commit any particular time-limit for obtaining the said certificate. The complainants, in these circumstances, are entitled to refund of the amount paid by them along with appropriate compensation.

5.      The complaint is, therefore, disposed of with the following directions:-

(i)      The opposite party, namely, Parsvnath Hessa Developers Ltd. shall refund the entire amount of Rs.2,35,36,214.63 to the complainants along with all inclusive (including compensation for the mental agony and harassment) compensation in the form of simple interest at the amount @ 10% per annum w.e.f. the date of each payment till the date of refund in terms of this order.  The aforesaid compensation is acceptable to the complainants as stated by their Counsel on instructions.

(ii)      The opposite party shall pay a sum of Rs.25,000/- as the cost of litigation to the complainants.

(iii)     The payment in terms of this order shall be made within three months.