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

          One Sh. Anil Agarwal 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. B6-1001, in Tower B-6 of the aforesaid project was allotted to him for a consideration of Rs.2,59,06,500/-.  He 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. 

          The aforesaid allotment was purchased by the complainants from Sh. Anil Agarwal and the said transfer of the unit to the complainant was approved by the OP vide its letter dated 08.01.2012. 

2.      It is not in dispute that the construction of Tower- B6 commenced on 04.05.2011.  The possession therefore, ought to have been delivered by 04.11.2014 inclusive of the grace period of six months.  Since the possession has not even been offered, the complainant is before this Commission seeking refund of the amount of Rs.2,34,34,345.86p paid to the OP in respect of the said flat. 

3.      Though the written version has been filed and the allotment made to Sh. Anil Agarwal as well as the transfer of the said allotment to the complainant has been admitted, the complaint has been resisted on the ground which admittedly, this Commission has already rejected in some previous Consumer Complaints including CC No. 1878 of 2016 Rohit Agarwal & Anr. Vs. M/s Parasvnath Developers Ltd. & Anr. decided on 30.07.2018.  In the written version field by the OP, it has not disputed the payment received in respect of the allotted flat. 

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

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.

4.      Though it has been alleged in the written version that an amount of Rs.12,57,649/- is still payable by the complainants, the said statement contained in the written version is incorrect as would be evident from the Statement of Account which shows that as on 23.06.2014, there was a credit balance of Rs.0.23p after the complainants had paid a sum of Rs.12,482/- as against the then outstanding amount of Rs.12,481.77/-.  No demand has admittedly been raised by the OP after 23.06.2014. 

5.    For the reasons stated hereinabove, I hold that the complainants are entitled to refund of the entire amount paid by them to the OP alongwith appropriate compensation.  The learned counsel for the complainants has drawn my attention to clause 15 of Haryana Real Estate (Regulation And Development) Rules 2017 which inter-alia provide for payment of interest by the promoter to the allottee at State Bank of India highest marginal cost of lending + 2% where the promoter fails to give possession of the apartment/plot/building in accordance with terms and conditions of agreement for sale in terms of section (4) of section 19.   As per the information obtained from the website of State Bank of India, the maximum marginal cost of lending rate is 8.7%.  This is not disputed by the learned counsel for the opposite party.  Adding 2% to the aforesaid rate, the complainants, in my view, are entitled to compensation in the form of interest @ 10.7% per annum, from the date of each payment.  

6.    Loan is stated to have been taken by the complainants from Standard Chartered Bank.  The OP therefore shall first pay the entire amount payable to the said bank and the balance if any, shall be paid to the complainants.  Such payment to the bank shall be deemed to be the payment made to the complainants in compliance of this order.  If however, the entire loan taken by the complainants is paid by them, alongwith interest on that loan, the entire payment in terms of this order shall be made to the complainants instead of making any payment to the bank. 

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

(i)      The opposite party shall refund the entire principal amount of Rs.2,34,34,345.86p to the complainants alongwith compensation in the form of simple interest @ 10.7% per annum from the date of each payment till the date of refund.

(ii)      The amount if any, payable by the complainants, to the bank, shall first be paid by the OP to the concerned bank out of the amount payable to the complainants in terms of this order and the balance amount if any, shall thereafter, be paid to the complainants. 

(iii)     If the entire loan amount is paid by the complainants directly to the bank, the whole of the amount payable to them in terms of this order shall be paid directly to them.

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

(v)       The payment in terms of this order shall be paid within three months from today.