1.      Heard Mr. Ritu Raj, for the complainant and Ms. Namrata Langade for the opposite party.

2.      Initially the complaint was filed for handing over possession alongwith other consequential reliefs. During pendency of the complaint the complainant filed IA/3841/2022 for amendment of the com[plaint which was allowed on 10.10.2023 and amended complaint was filed in which following prayers have been made: -

“(i)     Opposite party be directed to refund the paid amount of Rs.21000000/- alongwith interest i.e. total Rs.39932515/- on account of interest on the principal amount paid by the complainant and loss of income tax benefit amounting to Rs.860265/-;

(ii)      The opposite party be directed to pay Rs.2500000/- towards mental agony and harassment;

(iii)     The opposite party be directed to pay Rs.200000/- towards cost of litigation;

(iv)    Any other relief as this Hon’ble Commission may deem fit and proper in the present case.”

3.      The complainant stated that M/s Prestige Estates Projects Ptd., the opposite party was developing a group housing project under the development agreement with M/s Rao Insulating Company Pvt. Ltd. and M/s Shipara Enterprises Pvt. Ltd. The complainant applied for allotment of the flat in the above project and deposited the booking amount on 23.07.2013. The opposite party allotted apartment/villa No.1073 admeasuring 4111 sq. ft. super built up area and executed an agreement to sell on 24.07.2013 for transfer of the undivided right, title, interest and ownership in the property of the project land. As per agreement, the total cost of the land was Rs.4892090/-. The total cost was payable in three instalments upto 01.10.2013. On the same day, the opposite party executed a construction agreement in respect of the above villa. As per construction agreement the total cost of the construction was Rs.26773710/- and the cost of construction was payable in six instalments upto 01.04.2014. The complainant made payment of Rs.2/- crores on 31.07.2013. Clause 5 of the construction agreement provides that developer was to complete the construction on or before 30.06.2014. Thus, the complainant paid a total amount of Rs.21000000/- to the opposite party within one week from the date of the agreement. The opposite party failed to deliver the possession within the stipulated period. When the complainant contacted the opposite party he was assured that the possession would be delivered soon. On 23.06.2015, the opposite party sent a letter demanding a sum of Rs.50/- lacs towards the due instalments. The complainant came to know that the project in question is under litigation and as such he sent letter dated 19.08.2015 to the opposite party seeking status of the litigation and also disclose the exact date of delivery of possession. On 26.08.2015, the complainant again sent a letter to the opposite party requesting delivery of possession. The opposite party, vide email dated 05.09.2015 informed that the tower wherein apartment of the complainant is situated is not under litigation. On 08.09.2015, the opposite party sent a letter to the complainant informing that the occupation certificate has been obtained. On 16.09.2015, the complainant sent an email to the opposite party seeking compensation for delay in delivery of possession.  On 09.10.2015, the opposite party sent an email to the complainant that the payment for outstanding amount would be released after issuance of a formal letter and the delay interest would be paid as per agreement. On 06.01.2016 and 18.02.2016, the complainant again reiterated his request to provide the proof litigation status of the project and until the opposite party provides any proof thereof the complainant would not make further payment. The complainant, vide letters dated 29.02.2016 and 02.03.2016 repeated the above request. On 12.04.2016 and 16.04.2016, the complainant requested the opposite party to provide the proof of litigation status; completion certificate of the apartment; and the compensation payable to the complainant. The opposite party, vide letter dated 03.05.2016 informed the complainant that as the delay was due to the reasons beyond its control, it is not liable to pay any delay compensation and also attached the statement of account alongwith the said letter but remained silent on the question of litigation. The complainant again repeated his request for delay compensation, litigation status of the project and occupation certificate, vide letters dated 15.09.2016, 07.10.2016 and 06.02.2017. The opposite party, vide email dated 15.03.2017 admitted the delay compensation and stated that the statement has been sent to the audit department. On 13.07.2017, the opposite party sent an email to the complainant demanding the payment of Rs.12795895/-. Then the complainant filed the present complaint on 25.07.2017.

4.      The opposite party contested the complaint by filing the written reply on 24.05.2019 wherein booking of the apartment, payments made by the complainant, execution of agreement to sell and construction of agreement delay in delivery of possession have been admitted. However, is stated that the delay has been caused due to the reasons beyond its control. Therefore, the opposite party is not liable to pay delay compensation. The opposite party, vide email dated 09.05.2015 informed the complainant that the tower in which his apartment was situated was not under litigation. The complainant initially paid Rs.2.10 crores but his payment was not as per schedule of payment mentioned in the construction agreement. The opposite party, vide letter dated 23.06.2015 raised a demand of Rs.50/- lacs but the complainant has not made any payment against the aforesaid demand. On 08.09.2015, the opposite party sent the copy of the occupation certificate and requested the complainant to settle his account and takeover the possession but the complainant did not come forward rather kept on writing letters to provide the proof from the legal department of the opposite party relating to the litigation. At the first instance the opposite party had clearly communicated to the complainant that the tower in which his apartment was located was not under litigation. However, the complainant kept on writing letters regarding litigation in order to evade payment of Rs.12795895/- plus interest as per agreement is outstanding towards the complainant. Clause 1.3 of the agreement empowered the opposite party to terminate the agreement in case of non-payment by the allottee but the opposite party showed its bona fide and did not cancel the allotment. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.

5.      The complainant filed the rejoinder, Affidavit of Evidence of Deepak Dewan. The opposite party filed the Affidavit of Evidence of Arvind Pai.

6.      During the pendency of the complaint, the complainant made a request to amend the prayer clause. This Commission, vide order dated 10.10.2023 permitted the complainant to file an amended complaint. On 16.10.2023, the complainant filed the amended complaint for directing the opposite party to (i) refund the amount of Rs.21000000/- with interest of Rs.39932515/- and Rs.860265/- for loss of income tax benefit (ii) pay Rs.25/- lacs towards mental agony and harassment; (iii) Rs.2/- lacs towards litigation cost; and (iv) any other relief which this Commission deems fit in the facts and circumstances of the case.

7.      The opposite party filed additional reply to the amended prayer on 24.11.2023 stating that the due date of possession was 30.06.2014 with a grace period of six months and this was subject to force majeure conditions. On 23.06.2015, the opposite party requested the complainant to make payment of the instalment due, which he failed to do. On 08.09.2015, the opposite party informed the complainant that the flat is ready for possession and also requested him to settle the balance amount and completion of formalities to handover the possession but he did not bother. The opposite party is offering possession to the complainant since 2015 and has also rectified the defects pointed out by the complainant. The opposite party time and again requested the complainant to clear the outstanding dues so that possession could be handed over. The opposite party can refund the amount deposited by the complainant only after resale of the apartment allotted to him. The opposite party also requested the complainant to give his consent for resale of the apartment so that his amount can be refunded. At this stage, the complainant is seeking refund of the amount treating it as an investment with the opposite party, which is legally not permissible. Therefore, the complaint may be dismissed. 

8.      Both parties filed their written arguments. We have considered the arguments of the counsel for the parties and examined the record.

9.      As per clause 5 of the agreement, possession was to be delivered on or before 31.12.2014 including the grace period of six months. It is the case of the opposite party that after obtaining the occupation certificate it issued the offer of possession, vide letter dated 08.09.2015. In the written arguments it is submitted by the complainant that till date offer of possession has not been issued by the opposite party. On the other hand, alongwith the complaint, the complainant has annexed the copy of offer of possession dated 08.09.2015 (Annexure-H to the complaint). It is alleged that the letter dated 08.09.2015 cannot be said to be an offer of possession as in the said letter, apartment number has not been mentioned nor the letter is addressed to the complainant. A perusal of the letter dated 08.09.2015 shows that the opposite party has mentioned that the occupation certificate in respect of phase-1 which consists of Towers-1, 2 Club House and 57 Villas, has been obtained. In this letter the opposite party has also requested to settle the balance amount so that formalities for handing over possession can be completed. It is admitted that the apartment of the complainant is situated in Tower-1. When the complainant has received the letter and in the letter in place of name of the complainant, the opposite party has written “dear customer”, the complainant cannot say that the letter is not addressed to him. When the opposite party has obtained occupation certificate of Tower-1, the complainant cannot allege that the offer of possession is not valid. The complainant failed to make the payment as per payment schedule. Moreover, the complainant also failed to make payment of the balance amount as mentioned in the offer of possession. The opposite party, vide letter dated 05.09.2015 also made it clear that the tower in which the apartment of the complainant is situated is not under litigation but the complainant failed to make payment of the outstanding dues nor come forward to take over the possession. Therefore, the opposite party is eligible to forfeit 10% of the basic sale price in view of the judgment of Supreme Court in Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405, Maula Bux Vs. Union of India, (1969) 2 SCC 554 and Kailash Nath Associate Vs. Delhi Development Authority, (2015) 4 SCC 136. However, the opposite party offered the possession with a delay of about 8 months for which the opposite party is liable to pay compensation to the complainant in the form of interest @ 9% per annum on the amount deposited by the complainant.  Although the opposite party has taken the plea of force majeure but it has not filed any evidence whatsoever to substantiate that plea. The complainant also claimed Rs.860265/- for loss of income tax benefit and Rs.25/- lacs towards mental agony and harassment. Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318 held that the compensation cannot be awarded in multiple heads.

O R D E R

          In view of above discussions, the complaint is partly allowed with the direction to the opposite party to refund the amount deposited by the complainant with interest @ 9% p.a. from the respective deposits till the date of refund after forfeiting 10% of basic sale price. There will be no order as to costs. The order will be complied with within a period of two months.