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

The complainants, who are husband and wife booked a residential flat in a project namely ‘Parsvnath Privilege’ which the opposite party is developing on Plot No.11, Sector Pi, of Greater Noida in Uttar Pradesh, on the land allotted to it by Greater Nida Industrial Development Authority.  Pursuant to the application form submitted by the complainants on 08.6.2008, Flat No. 101 in Tower No. T-12 was allotted to the complainants and the parties then entered into a flat buyer agreement dated 01.7.2008.  The sale consideration for the aforesaid flat was agreed at Rs.62,63,964/-.  As per Clause 10(a) of the said agreement, the construction was likely to be completed within a period of 36 months from the date of the commencement of the construction of the block in which the flat allotted to the complainants was located.  The grievance of the complainants is that despite they having already paid a sum of Rs.55,72,600/- to the opposite party, the construction of the flat which ought to have been completed by December, 2010 has not been completed.  The complainants are therefore before this Commission, seeking the following reliefs: 

1. Grant a sum of Rs.1,27,84,449/- towards default interest at the compounding rate of 18% p.a. or such higher amount of interest, calculated from the date of actual payment i.e. 24.7.2008 to 31.8.2015, along with the principal amount of Rs.55,72,600/- paid by the complainants to the opposite party.

2. Grant a sum of Rs.12,88,500/- on account of rent paid by the complainants due to the unreasonable delay caused in handing over the possession.

3. Grant a sum of Rs.39,35,448/- the interest paid on the home loan by the complainants along with pendent lite and furture compound interest @ 18% p.a. or at the same rate of 24% as is being charged by it.

4. Grant a sum of Rs.20,00,000/- towards damages for the financial and physical harassment, loss of professional time and family time, loss of opportunity and mental agony caused to the complainants due to the acts of the opposite party.And grant cost of litigation to the complainants.

2.      The opposite party die not file its written version even within 45 days from the date on which notice of the complaint was received by it.  Therefore, vide order dated 15.1.2016, the right of the opposite party to file the written version was closed, in view of the decision of the Hon’ble Supreme Court dated 04.12.2015 in Civil Appeal Nos.10941-10942 of 2013, New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.

3.      The complainant has filed an affidavit by way of evidence and both the parties have filed their respective written synopsis.

4.      Clause 10(a) and 10(c) and Clause 5(a) of the Buyers Agreement on which reliance is placed by the learned counsel for the opposite party read as under:

          “10(a)         Construction of the flat is likely to be completed within a period of 36 months from the date of commencement of construction of the particular Block in which the flat is located on receipt of all requisite approvals including sanction of building plans, environmental clearance, etc. subject to force majeure and restraints / restrictions from any courts / authorities, non-availability of building materials and any circumstances beyond the control of the Developer and subject to timely payments by the Buyer.  No claim by way of damages / compensation shall lie against the Developer in case of delay in handing over possession of the flat on account of the said reasons. The flat shall be deemed to be completed for the purpose of this clause / agreement when the Developer submits application / completion plans to authorities for obtaining completion certificate which may be for the complex as a whole or in parts.  Possession of the Flat would be given only on clearance of the entire dues payable by the Buyer to the Developer in terms of this Agreement and after execution of the Tripartite Sub-Lease Deed.

10(c) In case of delay in construction of the flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under clause 10(a), the Developer shall pay to the Buyer compensation @ Rs.53,82/- (Rupees fifty three and paise eighty two only) per sq. meter or @ Rs.5/- per sq. ft.

5(a)   Timely payment of the installments / amount due shall be the essence of this Agreement.  If payment is not made within the period stipulated and or the Buyer commits breach of any of the terms and conditions of this agreement, the agreement shall be liable to be cancelled.  In the eventuality of cancellation, earnest money being 15% of the basic price would be forfeited and the balance, if any, would be refundable without interest.  On cancellation of the agreement, the Buyer shall also be liable to reimburse to the Developer the amount of brokerage paid, if any, by the Developer towards the booking of the Flat.  In any case, all the dues, whatsoever, including interest, if any, shall be payable before taking possession of the Flat”.

5.      It would be seen from a perusal of Clause 10(a) as extracted hereinabove that the opposite party was required to complete the construction of the flat within thirty six months from the date on which the construction of Tower No.12 was to commence.  The documents filed by the complainants do not indicate the actual date on which the construction of Tower No.12 had actually commenced.  However, they have placed on record a letter dated 10.6.2010 sent by the opposite party.  The aforesaid letter to the extent it is relevant reads as under:

“We wish to inform that there has been a general slowdown experienced by the Real Estate Sector in the Country on account of the global economic meltdown and this has adversely affected the construction schedules which Developers had planned for execution of the projects.  As a result thereof the progress of construction activity of the Project got slowed down in the past.  However, the pace of work at site has now started picking up momentum.

We wish to inform you that we are taking active steps in putting new initiatives like mobilizing resources, re-scheduling work and augmenting labour force at site to expeditiously complete remaining works of the project for early completion.  As per our re-scheduling plan, we propose to complete the project by March, 2012”.

          In view of the commitment made in the aforesaid letter, the opposite party was required to complete entire project by March, 2012.

6.      Admittedly, the construction of Tower No.12 in which the flat allotted to the complainants is to be located, has not been completed till date, though almost five years have expired since the date by which this project was to be completed in terms of the letter dated 10.6.2010.  Thus, there is already a delay of about five years in completion of the construction of the flat allotted to the complainants.

7.      The learned counsel for the opposite party states on instructions that they will be in a position to complete the construction of Tower No. 17 and 18 and offer possession of an identical flat to the complainants in one of the aforesaid two towers within a span of 4-5 months.  The aforesaid offer however, is not acceptable to the complainants, who state that considering the default on the part of the opposite party, in honouring their earlier promise, the complainants are not ready to believe the aforesaid commitment and would not like to wait till completion of the tower No. 17 and 18.  In any case, considering the abnormal delay of almost five years on the part of the opposite party in completion of the project, the complainants, in my view, cannot be compelled to wait any more and they are entitled to refund of the entire amount paid by them, along with compensation in the form of appropriate interest.

8.      The learned counsel for the opposite party states that seeking refund amounts to cancellation of the agreement attracts Clause 5 of the Buyers Agreement and therefore, the opposite party is entitled to deduct 15% of the sale consideration from the amount paid by the complainants to it.  I however, find no merit in this contention, since Clause 5 envisages a situation where there is no default on the part of the builder and the buyers, of his own, seeks to cancel the booking made by him.  However, in the present case, the complainants have been compelled to seek refund of the amount paid by them on account of the abnormal delay of almost five years on the part of the opposite party in completing the project.  Therefore, reliance upon Clause-5 of the Buyers Agreement is wholly misplaced.

9.      The learned counsel for the opposite party, also submits that in any case, the complainants are not entitled to a compensation higher than the compensation computed in terms of Clause 10(c) of the Buyers Agreement.  The aforesaid contention has repeatedly been rejected by this Commission in a large number of cases, including a complaint relating to this very project, CC/263/2015 decided on 11.5.2016 namely Aditya Laroia Vs. Parsvnath Developers Ltd., though an appeal against the order passed by this Commission is pending before the Hon’ble Supreme Court.

10.    The learned counsel for the complainants states on instructions that considering the pendency of an appeal against the order of this Commission dated 11.5.2016 in Aditya Laroia (supra) and against the earlier decision dated 26.4.2016 in CC/457/2014 namely Rajesh Kumar Agrawal Vs. Parsvnath Developers Ltd., the complainant is pressing for refund of the principal amount, along with such compensation, as the Hon’ble Supreme Court may award to the complainants in the appeals pending before it against the order of this Commission in Rajesh Kumar Agrawal (supra) and Aditya Laroia (supra).  The complaint is therefore, disposed of with the following directions:

(i)      The opposite party shall refund the entire principal amount of Rs. 55,72,600/- to the complainants within four weeks from today;

(ii)      The opposite party shall pay to the complainants, compensation whether in the form of interest or otherwise  at par with the compensation which the Hon’ble Supreme Court may finally award to the complainants in Rajesh Kumar Agrawal (supra) and Aditya Laroia (supra).  The compensation shall be paid within four months from the decision of the Hon’ble Supreme Court in the above referred matters.

(iii)     The opposite party shall pay a sum of Rs.10,000/- as the cost of litigation to the complainants.