PRONOUNCED ON : 8^TH  MARCH, 2021

           The brief facts as set out in the Complaint are that on 05.03.2013, the Complainant booked a Residential Flat in the name of himself and his wife in "Casa Italia" the Project of the Opposite Party at Ghaziabad, U.P. The Builder/Buyer Agreement was executed between the Parties on 25.09.2014, for a 2BHK Flat bearing No. 307, measuring 1095 Sq.ft. on the third floor for a total sale consideration of ₹64,72,500/-.

2.       It is averred that the Complainant paid the total sum of ₹66,47,318/- as per the specific demands made by the Opposite Party in the following manner:

3.       It is averred that as per Clause 11.1 of the Agreement, time for completion of the Project and possession thereof was 36 months from the date of execution of the Agreement, meaning thereby that the possession of the Flat was to be handed over by October, 2017. After expiry of the stipulated period, when the Opposite Party failed to provide the possession of the Flat, the Complainant visited the Project Site and was shocked to  see that the construction work was still at the stage of second floor as the Complainant’s Flat was situated on the third floor. Thereafter, in the month of November 2017, the Complainant approached the office of the Opposite Party and sought reasons for not completing the Project even after the payment of total sale consideration by the Complainant. However, no satisfactory reply was given by the staff of the Opposite Party.

4.       The Opposite Party has neither constructed the Flat nor returned the money paid by the Complainant. With these averments, the Complainant, alleging deficiency in service and unfair trade practice on the part of the Opposite Party, filed a Complaint on 22.12.2017 before the Delhi State Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as “the State Commission”). On 18.01.2018, at the time of Admission, as the aggregate amount exceeds Rupees One Crore, which is beyond the pecuniary jurisdiction of the State Commission, the State Commission permitted the Complainant to withdraw the Complaint with liberty to file the same before this Commission.

5.       Hence the present Complaint before this Commission, with the following prayer:-

"a)To direct the Opposite Party to refund Rs.1,21,18,499/- along with compound interest @18% p.a. from the date of filing this Complaint till the actual date of payment.

b)To pay Rs.50,000/- as Damages to the Complainant for mental agony and harassment suffered due to unfair trade practices adopted by the Opposite Party.

c) Cost of Rs.50,000/- against litigation and

d) To pass such further orders deem fit and proper in the interest of justice.”

6.       The Complaint was admitted on 20.04.2018 and notice was issued to the Opposite Party for 08.08.2018. The notice sent to the Opposite Party was

returned back with the postal remarks "Left W/A". On 08.08.2018, fresh notice was directed to be issued for 04.10.2018. Dasti was also permitted. Dasti notice was collected by the Complainant. On 04.10.2018, learned Counsel appearing for the Complainant stated that in spite of his best efforts, service could not be effected on the Opposite Party. Thereafter, on 25.10.2018, the notice was directed to be published in “Times of India” (English) and “Navbharat Times” (Hindi) for 11.01.2019, which was published on 30.11.2018. Despite publication, the Opposite Party did not appear and vide Order dated 11.03.2019, the Opposite Party was directed to be proceeded Ex Parte and its right to file the Written Version was closed.

7.       Heard the learned Counsel for the Complainant and perused the material on Record.

8.       It is the Complainant’s case that despite paying an amount of ₹66,47,318/-  for Flat No. 307, measuring 1095 Sq.ft. on the third floor in “Casa Italia”  the Project of the  Opposite Party and having entered into a Builder/ Buyer Agreement dated 25.09.2014, till date the Opposite Party has not adhered to the terms of the Agreement and has not handed over the possession of the Flat.

9.       Learned Counsel appearing for the Complainants submitted that as per Clause 11.1 of the Agreement, it was specifically promised that the Opposite Party shall complete the construction within 36 months i.e  before October, 2017. For better understanding of the case, the said Clause is reproduced as hereunder:

“11.1 the Developer based on its present plans and estimates and subject to all just exceptions agrees to complete construction of the Said Tower/ Said Space within  a period of 36 months (thirty six months) from the date of execution of this Agreement or grant of all statutory approvals, whichever is later, unless there shall be delay or failure due to Force Majeure conditions or due to failure of the Proposed Space Buyer (s) to pay in time the Total Sale Consideration and other charges and dues/ payments mentioned in this Agreement or any failure on the part of the Proposed  Space Buyer (s) to abide by all or any of the terms and conditions of this Agreement.”

(Emphasis supplied)

10.     It is submitted that even as on today the construction is incomplete. It is relevant to note that Agreement was entered into on 25.09.2014, the promised date of delivery was within 36 months from the date of Agreement and even after a lapse of that period, the construction is still incomplete. The act of the Opposite Party in not delivering the possession on time and not giving the Complainant till date any assurance with respect to the exact date of delivery of possession amounts to deficiency of service.

11.     The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019, decided on 25.03.2019], has observed as follows:

“……….It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016.  This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”

12.     In the instant case also the Complainant cannot be made to wait indefinitely for possession of the Flat, when there is absolutely no response from the Opposite party, therefore, the Complainant is entitled for refund of the principal amount with interest. Though it is the prayer of the Complainant that the Opposite Party may be directed to refund the deposited amount with interest @ 18% p.a. from the date of each deposit till realisation, having regard to the principal of restitutio in integrum, which specifies that the aggrieved person should necessarily be compensated for the financial loss suffered due to the event and get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Hence, I am of the view that awarding interest @ 8% p.a. would meet the ends of justice. This interest @ 8% p.a. is not only reasonable but also justified as it is awarded by way of all damages and no further compensation is being directed to be paid, keeping in view the ratio laid down by the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda, II (2019) CPJ 117 (SC), that compensation under multiple heads cannot be awarded.

13.     In the result, this Complaint is allowed in part directing the Opposite Party to refund the deposited amount along with interest @ 8% p.a.  from the respective dates of deposit till realization together with costs of ₹25,000/- to the Complainant. Time for compliance, two months from today, failing which the amount shall attract interest @ 10% p.a. for the same period.