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

          In CC No.2094/2016 and CC No.2099/2016, the complainants booked residential flats with the OP in a project namely ‘Parsvnath Exotica’ which the OP was to develop in Sector-53 of Gurgaon.  They executed Builder Buyers Agreement with the OP on 19.05.2006 and 09.08.2005 respectively. 

2.      In CC No.2096/2016, 2097/2016, 2098/2016, 2100/2016 & 2101/2016, the predecessors in interest of the complainants booked residential flats in the above referred project and executed Builder Buyers Agreement on different dates.  Later, the said allotments were purchased by the complainants and were transferred in their respective names.  All the allotments were purchased more than one year after the execution of the Builder Buyers Agreement.  The following are the particulars of the allotments made in these complaints including the date of execution of the Builder Buyer Agreement, the agreed consideration and the amount stated to have been paid to the OP.            

3.      It is an admitted position before me that identical Builder Buyer Agreements were executed in these matters and clause 10(a) of the said agreements in all these cases reads as under:

10 (a) Construction of the flat is likely to be completed within a period of thirty six (36) months of commencement of construction of the particular block in which the flat is located, with a grace period of six (6) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the developers and subject to timely payments by the Flat Buyers in the Scheme.  No claim by way of damages/compensation shall lie against the developers in case of delay in handing over possession on account of the said reasons.  The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the flat for the purpose of this clause/agreement.

          It would thus be seen that the construction was expected to be completed within 42 months of the commencement of the particular blocks in which the flats were located.  It is admitted by the learned counsel for the parties appearing before me that construction in blocks D-4, D-5 and D-6 had commenced in December 2006.  Therefore, the construction ought to have been completed latest by June 2010.  However, the possession of the flats has not been offered to the complainants till date.  The learned counsel for the OP states that though they have applied for the issuance of the requisite Occupancy Certificate way back in 2011, the said Occupancy Certificate has not been issued so far. 

4.      The complaints have been resisted by the OP which has admitted the allotments as well as the execution of the agreements.  It is an admitted position before me that in the written version filed by the OP, the complaints have been opposed on the grounds which this Commission has already rejected in several Consumer Complaints including CC No.127/2017 Mallika Raghavan Vs. Parsvnath Developers Limited decided on 19.04.2018. 

5.      The decision of this Commission in Mallika Raghavan (supra), to the extent it is relevant, reads as under:    

2.      The complaint has been resisted by the opposite party which had admitted the allotment made to the complainant and the execution of the agreement with her.  It is alleged in the written version filed by the opposite party that the construction was delayed on account of the reasons beyond the control of the opposite party.  The aforesaid reasons are stated to be (i) lack of adequate sources of finance, (ii) shortage of labour (iii) rise in manpower material cost and (iv) approval and procedural difficulties.

3.      It is also claimed that out of 18 towers in the aforesaid project, possession has been handed over in 11 towers and occupancy certificate has also been applied with respect to the five out of the remaining seven towers.  It is also alleged in the written version that the fit outs have already been offered to the allottees of towers D-4, D-5, D-6 and B-1.

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. 

6.      During the course of hearing, I asked the learned counsel for the opposite party as to when it will be able to give possession of the flat to the complainant after obtaining the requisite occupancy certificate.  The learned counsel for the opposite party states that though they have already applied for the grant of the requisite occupancy certificate she is not in a position to commit any time limit within which they would obtain the requisite occupancy certificate from the concerned authorities.  In my view, the opposite party cannot be given indefinite time period to obtain the requisite occupancy certificate and it should obtain the same in a time bound manner at its own cost and responsibility.

6.      For the reasons stated hereinabove, I hold that the complainants are entitled to possession of the allotted flats alongwith appropriate compensation.  It is an admitted position that the allotments in CC No.2095/2016, CC No.2096/2016, CC No.2097/2016, CC No.2098/2016, CC No.2100/2016 & CC No.2101/2016 were purchased by the concerned complainants more than one year after the Builder Buyer Agreements had already been executed.  In fact, the complainants in CC No.2095/2016, CC No.2097/2016, CC No.2098/2016 and CC No.2101/2016 purchased the allotments after the committed date for the delivery of the possession had already expired.  Relying upon the decision of this Commission in Satish Kumar Pandey & Ors. Vs. Unitech Limited in CC No.427 of 2014 and connected matters decided on 08.06.2015, the complaints are disposed of with the following directions:

(i)      The OP shall obtain the requisite Occupancy Certificate from the concerned authorities at its own cost and responsibility and offer possession of the allotted flats to the complainants, complete in all respects on or before 30.06.2019.

(ii)      In CC No.2094/2016 and CC No.2099/2016 filed by the original allottees, the OP shall pay compensation to them in the form of simple interest @ 8% per annum w.e.f. 01.07.2010 till the date on which the possession in terms of this order is actually offered to them, after obtaining the requisite Occupancy Certificate.

(iii)     In CC No.2096/2016, instituted by Mr. Subir Mukherjee and Mrs. Debjani Mukerjee, the OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants w.e.f. 08.06.2011 till the date on which the possession in terms of this order is actually offered to them after obtaining the requisite Occupancy Certificate.  They shall also be entitled to the contractual compensation, for the period from 01.07.2010 till 07.06.2011. 

(iv)    In CC No.2097/2016, instituted by Ms. Archana Dube, the OP shall pay compensation in the form of simple interest @ 8% per annum to the complainant w.e.f. 21.12.2017 till the date on which the possession in terms of this order is actually offered to her after obtaining the requisite Occupancy Certificate.  She shall also be entitled to the contractual compensation, for the period from 01.07.2010 till 20.12.2017.

(v)     In CC No.2098/2016, instituted by Mr. Vikas Verma and Mrs. Nameesha Verma, the OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants w.e.f. 14.03.2017 till the date on which the possession in terms of this order is actually offered to them after obtaining the requisite Occupancy Certificate.  They shall also be entitled to the contractual compensation, for the period from 01.07.2010 till 13.03.2017.

(vi)    In CC No.2100/2016, instituted by Mr. Atul K. Srivastava and Mrs. Rashmi Srivastava, the OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants w.e.f. 17.04.2011 till the date on which the possession in terms of this order is actually offered to them after obtaining the requisite Occupancy Certificate.  They shall also be entitled to the contractual compensation, for the period from 01.07.2010 till 16.04.2011.

(vii)    In CC No.2101/2016, instituted by Mr. Vaneet Parmar and Mrs. Sabina Tanwar, the OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants w.e.f. 26.02.2017 till the date on which the possession in terms of this order is actually offered to them after obtaining the requisite Occupancy Certificate.  They shall also be entitled to the contractual compensation, for the period from 01.07.2010 till 25.02.2017.

(viii)   The balance amount, if any, shall be adjusted out of the compensation payable to the complainants, in terms of this order.

(ix)     The opposite party shall pay Rs.25,000/- as cost of litigation in each case to the complainants.

(x)     The increase, if any, in the stamp duty after 30.06.2010, shall be borne by the opposite party.

(xi)     Compensation, if any, already paid to the complainants shall be adjustable out of the amount payable to them, in terms of this order.