JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The predecessors in interest of the complainants booked residential flat in Tower D-4 in a project namely ‘Parsvnath Exotica’ which the OP was to develop in Sector-53 of Gurgaon and executed Builder Buyers Agreement on 31.08.2006. Later, the said allotment was purchased by the complainants and was transferred in their names. The learned counsel for the OP states that the possession of the allotted flat had already been taken by the complainants on 30.05.2014, even before institution of the complaint. 2. Clause 10(a) of the agreement 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. 3. 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. 4. The complaint has been resisted by the OP which has admitted the allotment as well as the execution of the agreement. It is an admitted position before me that in the written version filed by the OP, the complaint has 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. The learned counsel for the complainants states that though the complainants had taken possession, the Occupancy Certificate in respect of the flat having not been obtained by the OP, they are not in a position to fully utilize the said flat and are not able to even raise the finances by mortgaging the same. It is also an admitted position that the requisite Conveyance Deed in respect of the said flat has also not been executed. Thus, we are in a position where the allottee has taken possession of the flat without the builder having obtained the requisite Occupancy Certificate and having executed the Conveyance Deed in his favour. Considering all the facts and circumstances, it would be fair and reasonable in the facts and circumstances of this case to award the agreed compensation of Rs.10 per sq. ft. of the super area per month to the complainants with effect from 01.07.2010, till the date on which the requisite Occupancy Certificate is obtained by the OP in respect of the allotted flat. The complaint is disposed of with the following directions: The opposite party shall obtain the requisite Occupancy Certificate from the concerned authorities at its own cost and responsibility on or before 30.06.2019. The opposite party shall pay the agreed compensation as per the Builder Buyers Agreement to the complainants w.e.f. 01.07.2010 till the date on which the Occupancy Certificate in terms of this order is obtained by the opposite party in respect of the allotted flat. The opposite party shall pay Rs.25,000/- as cost of litigation to the complainants. Compensation, if any, already paid to the complainants shall be adjustable out of the amount payable to them, in terms of this order.
| 
