1.      Heard Mr. Anant Agarwal, Advocate, for the complainants, Mr. Siddharth Banthia, Advocate, for opposite party-1 and Mr. Mr. Dileep Poolakkot, Advocate, for opposite party-2.

2.      Ajesh Kumar and Savita Ahluwalia have filed CC/3684/2017, for directing opposite party-1 to (i) refund Rs.10926076/- 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.200000/-, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case. The complainants stated that M/s. Raheja Developers Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. Opposite party-1 launched a group housing project, in the name of “Raheja’s Shilas” in Raheja’s Atharva, at village Khusrupur, Sector-109, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of opposite party-1, the complainants booked an independent floor and deposited booking amount of Rs.1112000/- on 09.03.2011. The complainants deposited Rs.28000/- on 15.03.2011 and Rs.1666965/- on 10.05.2011. Opposite party-1 vide Allotment Letter dated 13.05.2011 allotted Apartment No.IF18-04 and executed Flat Buyer Agreement on 27.07.2011, in favour of the complainants, in respect Apartment No.IF18-04, super area 2317 sq.ft., total consideration of Rs.11682875/-. Annexure-A of the agreement contained payment plan as “construction link payment plan”. Article-4.2 of the agreement provides 30 months period from the date of execution of the agreement with grace period of six months for delivery of possession. For timely payment of the instalments, the complainants took loan of Rs.7500000/- from The Federal Bank Ltd. (opposite party-2), for which a tripartite agreement was executed between the parties on 23.07.2011. As per demand, the complainants deposited Rs.109260763/- till 13.05.2014. The period of 30 months expired on 26.01.2014 and six months grace period expired on 26.07.2014. The complainants wrote an email dated 25.05.2017, inquiring from opposite party-1 in respect of tentative date for delivery of possession. Opposite party-1 called the complainants in the office on 16.06.2017. The complainants visited the site and found that the construction was incomplete. The complainants, vide email dated 13.06.2016, wanted for a meeting with Mr. Adil Altaf and Ms. Vinika Kapoor but opposite party-1 did not respond. The complainants were paying interest @10.5% to 11.16% per annum of their loan. Then this complaint was filed on 11.12.2017, alleging deficiency in service.

                 The complainants have filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Ajesh Kumar and documentary evidence. Opposite party-1 filed Affidavit of Evidence of Tarun Sharma, Affidavit of Admission/Denial of documents of Surender Kumar and documentary evidence. Both the parties have filed their written synopsis.

3.      Kanika Malik and Anuj Kumar have filed CC/3685/2017, for directing opposite party-1 to (i) refund Rs.10859079/- 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.200000/-, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case. The complainants stated that M/s. Raheja Developers Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. Opposite party-1 launched a group housing project, in the name of “Raheja’s Shilas” in Raheja’s Atharva, at village Khusrupur, Sector-109, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of opposite party-1, the complainants booked an independent floor and deposited booking amount of Rs.1111310/- on 20.05.2011. The complainants deposited Rs.911010/- on 20.06.2011 and Rs.899400/- and Rs.1647602/- on 16.08.2011. Opposite party-1 vide Allotment Letter dated 16.08.2011 allotted Apartment No.IF12-04 and executed Flat Buyer Agreement on 16.08.2011, in favour of the complainants, in respect Apartment No.IF12-04, super area 2317 sq.ft., total consideration of Rs.11682875/-. Annexure-A of the agreement contained payment plan as “construction link payment plan”. Article-4.2 of the agreement provides 30 months period from the date of execution of the agreement with grace period of six months for delivery of possession. For timely payment of the instalments, the complainants took loan of Rs.4850000/- from The Federal Bank Ltd. (opposite party-2), for which a tripartite agreement was executed between the parties on 16.08.2011. The complainants foreclosed above loan on 16.05.2016 after taking loan of Rs.6300000/- from Standard Chartered on 31.03.2016. As per demand, the complainants deposited Rs.10859079/- till 06.08.2013. The period of 30 months expired on 15.02.2014 and six months grace period expired on 15.08.2014. The complainants were paying rent of Rs.22000/- to Rs.24200/- per months. EMI of Rs.56521/- on the loan was also started. The complainants were in acute need of residence. Due to inordinate delay, in possession, the complainants took loan of Rs.10000000/- from Standard Chartered on 20.06.2016 and purchased another apartment in June, 2016. Then this complaint was filed on 12.12.2017, alleging deficiency in service.

                 The complainants filed Rejoinder Reply, Affidavits of Evidence, Affidavit of Admission/Denial of documents of Kanika Malik and Anuj Kumar and documentary evidence. Opposite party-1 filed Affidavit of Evidence of Tarun Sharma, Affidavit of Admission/Denial of documents of Surender Kumar and documentary evidence. Both the parties have filed their written synopsis.

4.      Opposite party-1 filed its separate written reply in both the complaints. Opposite party-1 did not dispute allotment of apartments, execution of the respective agreements and deposits made by the complainants. Opposite party-1 stated that in booking application and in agreement, it has been clearly mentioned that the builder would not be liable to pay any compensation for delay as external infrastructure was not developed by Haryana Urban Development Authority at that time Knowing this fact, the complainants booked the apartments. The construction was delayed for force majeure reasons and liable to be condoned under clause-4.4 of the agreement. 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 developer and several other builders of the locality. Opposite party-1 made various efforts at government level for development of external infrastructure but could not succeed. Punjab and Haryana High Court, vide order dated 31.07.2012 passed in CWP No.20032 of 2008, Sunil Singh Vs. Ministry of Environment & Forest, banned use of ground water in construction. Department of Town and Country Planning, Haryana took about one year in providing STP water for construction. During that period, the construction work was stopped. STP water required carriage in tanker, due to which the work had become slow and cost has increased. Haryana State Pollution Control Board used to stop civil construction work time to time for environmental reasons. Slow pace of construction was due to non-availability of basic infrastructure Opposite party-1 has completed the construction and applied for issue of “occupation certificate”. Opposite party-1 always updated the stages of the construction on the website. Superintending Engineer (HQ), HUDA vide office order dated 24.05.2017, called for site report from Sub-Divisional Engineer. Sub-Divisional Engineer inspected the site and submitted his report dated 19.09.2017. The complainants already owned a house and this floor was booked for commercial purposes and the complainants are not consumer. The complaints have no merit and liable to be dismissed.

5.      Opposite party-1 filed Misc. Application on 26.04.2023, in CC/3684/2017, stating therein that Ajesh Kumar and Savita Ahluwalia along with other home buyers have filed CP (IB) No.239 (PB) of 2023, before National Company Law Tribunal, Delhi, in February, 2023. Therefore this complaint be dismissed. It is well settled that Consumer Protection Act, 1986, Real Estate (Regulation and Development) Act, 2016 and Insolvency and Bankruptcy Code, 2016 concurrent remedy to the home buyers. The present complaints are prior in time as such it is not liable to be dismissed on the basis of subsequent complaint before National Company Law Tribunal under Insolvency and Bankruptcy Code, 2016. Till today National Company Law Tribunal has not imposed moratorium. Misc. Application filed on 26.04.2023 by opposite party-1 is rejected.   

6.      I have considered the arguments of the parties and examined the record. Article-4.2 of the agreement provides 30 months period from the date of execution of the agreement with grace period of six months for delivery of possession. The period of 36 months expired in February, 2014 and grace period of six months expired in August, 2014. Annexure-A of the agreement provides “construction link payment plan”. As per demand, the complainants deposited more than 95% of consideration in CC/3684/2017 till May, 2014 and CC/3685/2017 till August, 2013.  About 9 years have expired from due date of possession but “occupation certificate” has not been obtained and there is no hope that the project would be ready for habitation in near future. Developing group housing project without there is infrastructure necessary for habitation amounts to unfair trade practice. By inserting a clause in this respect in Booking application and agreement, opposite party-1 cannot be permitted to violate statutory rules relating to development of group housing project. 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 complaints are partly allowed. Opposite party-1 is directed to refund entire amount deposited by the complainants 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.