JUDGMENT

JUSTICE RAM SURAT RAM (MAURYA), MEMBER

1.     Heard Mr. Ajjay Aroraa, Advocate for the complainants and Mr. Karan Rajpurohit, Advocate for the opposite party.

2.     Madhur Gupta and Mrs. Parul Sunil Verma have filed above complaint, for directing the opposite party to (i) refund the entire amount deposited by them with interest @18% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.1500000/- as compensation for mental agony and harassment along with costs of litigation; (iii) pay Rs.50000/- per month as loss of income to the complainant from 01.06.2010 till the date of actual payment; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.     The complainant stated that the opposite party was a company registered under the Companies Act, 1956 and was doing business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Parsvnath Palacia” at Greater Noida in the year 2007 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainant booked a flat on 01.05.2017 and deposited booking amount of Rs.555750/-. The opposite party allotted Flat No.B-2-1003, basic sale price of Rs.5562925/- in the aforesaid project and executed Flat Buyer Agreement dated 02.06.2007. As per the demand, the complainant further deposited Rs.255308/- on 12.06.2007 and Rs.4000000/- on 27.06.2007. Clause-10(a) of the agreement provides 36 months from the date of commencement of construction for delivery of possession. However, the opposite party has failed to deliver the possession of the flat allotted to the complainant. The opposite party, vide letter dated 09.07.2010 assured that the project would be completed till June, 2012 and compensation would be given as per agreement. The opposite party failed to give possession, even in June, 2012. Later on, the opposite party asked the complainant to shift his allotment in other project namely “Parsvnath Privilege” and executed a Memorandum of Understanding dated 02.12.2012 that possession would be deliver in new project on or before December, 2013. The complainant had no option but to accept the proposal of the opposite party. Thereafter, the opposite party transferred the deposits of the complainant in “Parsvnath Privilege” and allotted Flat No.T-15-1002, area 1855 sq.ft., basic price of Rs.5968462/- and executed Flat Buyer Agreement on 02.11.2012. In clause-10(a) the opposite party unilaterally mentioned that the construction of the flat is likely to be completed  within a period of 36 months from the date of commencement of the construction. The complainant has already paid Rs.4811058/- to the opposite party. However, the opposite party again failed to give possession either till the end of 2013 or within 36 months as provided in the agreement. The complainant wrote a letter dated 03.07.2015 to the opposite party either handover possession or refund his entire amount. The opposite party through email dated 01.08.2015, replied that delay in delivery of possession had occurred due to technical reasons, delay compensation would be paid on offer of possession and the tower in which the complainant was allotted flat was at the stage of finishing. Due to inordinate delay, the complainant filed CC/1398/2016 before the State Consumer Disputes Redressal Commission, New Delhi which was later on dismissed as withdrawn with liberty to file complaint before this Commission. Then this complaint was filed on 03.02.2017.

4.     The opposite party filed its written reply on 09.05.2017 in which booking of the flat, allotment of the flat, execution of Flat Buyer’s Agreement and deposit made by the complainant, are not disputed. The opposite party stated that the complainant, by letter dated 18.09.2012, requested to shift his allotment from “Parsvnath Palacia” to “Parsvnath Privilege”. Therefore, his allotment was changed on 02.11.2012 and Flat No.T-15-1002, basic price of Rs.5968462.50/- was allotted to him and Rs.147288/- was chargeable as transferred charges. The complainant paid total Rs.4814828/- and balance amount is still due upon him. For the balance amount, the opposite party wrote demand letters and reminders dated 05.06.2015, 01.08.2015 and 18.09.2015. But the balance amount was not paid. The agreement was executed on 02.11.2012 and the complaint was filed on 03.02.2017 which is barred by limitation. The complainant is an investor and not a consumer. Therefore, the complaint is not maintainable.

5.     The complainant has filed Rejoinder and Affidavit of Evidence of Sunil Kumar Verma. The opposite party has filed Affidavit of Evidence of Ajay Kashyap. The complainant has filed written synopsis.

6.     We have considered the arguments of the counsel for the parties and examined the record. Admittedly, the opposite party executed initial Flat Buyer Agreement dated 02.06.2007 and subsequent Flat Buyer Agreement dated 02.11.2012 in respect of Flat No.T-15-1002 in the project “Parsvnath Privilege”. Clause 10 (a) of this agreement provides 36 months period from commencement of construction for completion of the construction. The period 36 months period expired on 01.11.2015. There is nothing on record to prove that the opposite party has completed the construction and obtained “occupation certificate” till today. The opposite party has failed to offer possession of the flat allotted to the complainant till today.

7.     So far as payment is concerned, the complainant has already paid Rs.4814828/- in the year 2007. The opposite party has not stated that under which payment plan, payment had to be made of balance amount. The complainant took specific plea that at the time of shifting of his earlier allotment in the project “Parsvnath Privilege”, he was given 12% down payment rebate and balance amount was payable on offer of possession. In Flat Buyer Agreement dated 02.11.2012, payment plans were cut. There is nothing on record that the opposite party has raised any demand in respect of balance amount till the letter dated 03.07.2015 written by the complainant for refund of his money. It is well settled that home buyer cannot made to wait for unlimited period for possession. In the circumstances that the opposite party has neither completed the project nor obtained “completion certificate” till today, the complaint for refund of entire amount is liable to be allowed. Since possession has never offered or denied as such the complaint cannot be said to be time barred.

ORDER

          In view of the aforesaid discussions, the complaint is partly allowed with cost of Rs.one lac. The opposite party is directed to refund the entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.