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

          The complainant entered into a Flat Buyers Agreement with the opposite party on 21.10.2011 with respect to the flat No. 1201 in Tower D-5 of the project namely ‘Parsvnath Exotica’ which the opposite party was to develop in Sector 53 of Gurgaon.  The basic price of the flat was agreed at Rs.2,03,72,500/-.  As per Clause 10(a) of the said agreement, the construction was likely to be completed within thirty six months of the commencement of construction of the particular block in which the flat was located or the date of booking whichever be later, with a grace period of six months.  It is not in dispute that the construction of the block in which the above referred flat was to be situated had commenced much before the agreement came to be executed between the parties, on 21.10.2011.  Therefore, in terms of Clause 10(a) of the said agreement, the possession ought to have been delivered latest by 30.6.2014, the date of booking being 30.12.2010, as would be seen from the application form available on page 48 of the reply filed by the opposite party.  The possession of the flat having not been delivered to her, despite she having paid Rs.2,02,62,674.50 to the opposite party, the complainant is before this Commission, seeking possession of the aforesaid flat along with compensation.

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.

7.      For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)      The opposite party shall obtain the requisite occupancy certificate from the concerned authorities at its own cost and responsibility and offer possession of the allotted flat to the complainant, complete in all respects, on or before 31.12.2018.

(ii)      The opposite party shall pay compensation in the form of simple interest @ 8% per annum to the complainant with effect from 30.6.2014 till the date on which possession, in terms of this order, is actually offered to the complainant, after obtaining the requisite occupancy certificate.       The aforesaid compensation is acceptable to the complainant as stated by her counsel, on instructions from her.

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

(iv)    The opposite party shall pay Rs.25,000/- as cost of litigation to the complainant.

(v)     The increase, if any, in the stamp duty after 30.6.2014, shall be borne by the opposite party.

(vi)    Compensation, if any, already paid to the complainant shall be adjustable out of the amount payable to her, in terms of this order.