1.      Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Siddharth Banthia, Advocate, for the opposite party.

2.      Virender Goel and J.P. Gupta have filed above complaint, for setting aside cancellation of allotment letter dated 03.05.2017 and directing the opposite party to (i) refund Rs.11932516/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.1000000/-, as compensation for mental agony and harassment; (iii) pay Rs.500000/-, as costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainants stated that M/s. Raheja Developers Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Raheja Revanta” at Sector-78, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainants booked a flat and deposited booking amount of Rs.1442677/- on 21.11.2011. The complainants deposited Rs.1100000/- on 18.02.2012, Rs.500000/- on 02.05.2012 and Rs.564016/- on 07.05.2012. The opposite party issued Allotment Letter on 13.06.2012 allotting Unit No.C-311, “Surya Tower”, admeasuring 2522.86 sq.ft., total consideration of Rs.16495390/- and executed Agreement to Sell on 13.06.2012, in favour of the complainants. Annexure-A of the agreement contained payment plan as “construction link payment plan”. Article-4.2 of the agreement provides 48 months period from the date of execution of the agreement with grace period of six months for delivery of possession. As per demand, the complainants deposited Rs.11932516/- till October, 2015. The opposite party was raising demand of the instalments without attaining the stage of construction for which demand used to be raised. The period of 48 months expired on 12.06.2016 and grace period of six months expired on 12.12.2016. The opposite party raised demand on 31.08.2016, then the complainants, through email dated 07.09.2016, inquired about tentative date of possession. The opposite party, through email dated 30.09.2016, informed that possession would likely to be handed over by last quarter of 2017. On inspection, the complainants found that the construction of the Tower was stopped. On query, the opposite party, through letter dated 22.02.2017, informed that due to high tension line passing through middle of the complex, the construction was stopped and they were making effort for shifting it as underground and also revised the schedule of completion of the construction up to December, 2018. The opposite party, through letter dated 03.05.2017, cancelled the allotment of the complainants. The complainants visited the site and found that number of floors were increased from 55 to 62, without consent of the buyers. The complainants, through letter dated 25.07.2017, requested to refund their money with interest. In spite of the service of notice, the opposite party did not respond. Then this complaint was filed on 15.11.2017, alleging deficiency in service.        

4.      The opposite party has filed its written reply on 22.02.2018, in which, booking of the flat, allotment of the flat, execution of agreement and the deposits made by the complainants, have not been disputed. The opposite party stated that the construction was delayed for force majeure reasons and liable to be condoned under clause-4.4 of the agreement. Several home buyers of the project committed default in payment of instalment, which created paucity of the fund. High Tension Electricity line was passing through middle of the project land. DHVBNL took unreasonable time in making it underground. The contractor engaged by the opposite party created dispute. Acquisition of the land of Dwarka Expressway got entangled into litigation. Although 10 years expired but HUDA failed to provide basic infrastructure facilities such as road, sewer line, water line and electricity supply although EDC & IDC etc. have been deposited by the opposite party and several other builders of the locality. Google images taken on 05.07.2017 clearly shows that necessary infrastructure have not been developed in the area. Slow pace of construction is only due to non-availability of basic infrastructure and the construction of the project is at advance stage. The opposite party is making all efforts to complete the construction at the earliest. Article 4.2 provides for delay compensation and the interest of the complainant is secured.  In the application form, the Terms and Conditions have been given as such it cannot be said that agreement was one sided. The complainants failed to adhere payment plan and did not deposit the instalments even issue of demand letter dated 31.08.2016 and reminders as such allotment was cancelled under Article-3.7 of the agreement. The allottees have given consent for suitable alteration in layout plan under Article-3.10 of the agreement. Increase of floor from 55 to 62 is as per Article-3.10. The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. The complaint has no merit and liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Virender Goel and documentary evidence. The opposite party filed Affidavit of Evidence of Surender Kumar, Affidavit of Admission/Denial of documents of Himanshu Tiwari and documentary evidence. Both the parties have filed their written synopsis. The opposite party, through IA/6251/2023, filed a copy of the Complaint No. RERA-GRG-5492-2022, Revanta Gurgaon Flat Buyers Association before HRERA, which was filed for permitting the Association to carryout remaining development work of the project “Raheja Revanta”. The counsel for the opposite party submitted that Virender Goel was founder member of Revanta Gurgaon Flat Buyers Association. As the association has filed a complaint under Section 8 of Real Estate (Regulation and Development) Act, 2016, this complaint be dismissed on the basis of doctrine of election of choosing remedy.   

6.      We have considered the arguments of the parties and examined the record. Preliminary issue raised by the opposite party has no merit. This complaint has been filed on 15.11.2017 and prior in time of Complaint No. RERA-GRG-5492-2022, which was filed on 01.08.2022. The opposite party has already raised an objection of maintainability of Complaint No. RERA-GRG-5492-2022 on the ground of doctrine of election for choosing remedy between two remedies, before HRERA. This complaint, being prior in time, cannot be dismissed.   

7.      Annexure-A of the agreement provides “construction link payment plan”. A perusal of the ledger relating to the complainants shows that they have deposited instalment “on start of 25^th floor slab” in October, 2015. Thereafter, the opposite party raised demand on 07.11.2015 of the instalment of “on start of 30^th floor slab”, on 04.01.2016 “on start of 35^th floor slab”, on 05.03.2016 “on start of 40^th floor slab”, on 23.05.2016 “on start of 42^nd floor slab”, on 19.07.2016 “on start of 45^th floor slab” and on 21.10.2016 “water & electricity installation charges”. When the opposite party raised demand on 31.08.2016, then the complainants, through email dated 07.09.2016, inquired about tentative date of possession. The opposite party, through email dated 30.09.2016, informed that possession would likely to be handed over by last quarter of 2017. On inspection, the complainants found that the construction of the Tower was not going on. On query, the opposite party, through letter dated 22.02.2017, informed that due to high tension line passing through middle of the complex, the construction was stopped and they were making effort for shifting it as underground and also revised the schedule of completion of the construction up to December, 2018. From above facts, it is proved that all these demands were unauthorised. The opposite party, through letter dated 03.05.2017, cancelled the allotment of the complainants, which is illegal, inasmuch as in “construction link payment plan” demands were made without achieving the stage of construction. As admitted, the construction was not going on due to high tension electricity line passing through the project. Article-4.2 of the agreement provides 48 months period from the date of execution of the agreement with grace period of six months for delivery of possession. The period of 48 months expired on 12.06.2016 and grace period of six months expired on 12.12.2016. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, held that the home buyer cannot be made to wait for possession for an unlimited period.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. Letter dated 03.05.2017, cancelling the allotment of the complainants, is set aside. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from date of respective deposit till the date of refund, within a period of two months from the date of this judgement.