1.      Heard Mr. P. Basu Choudhary, Advocate, for the complainants and Mr. Karan Raj Purohit, Advocate, for the opposite parties.

2.      Mrs. Bulbul Banerjea and Manoj Bandhopadhyay have filed above complaint, for directing the opposite party to (i) refund Rs.16211912/- with interest @24% per annum, from the date of respective deposit till the date of refund; or in alternative, handover possession of the flat booked by the complainants; (ii) pay Rs.644592/- lacs, as compensation on account of interest paid to HDFC Bank; (iii) Pay Rs.50/- lacs as compensation for mental agony and harassment; (iv) pay Rs.2/- lacs, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that the opposite parties were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its unit to the prospective buyers. M/s. Parsvnath Developers Private Limited launched a group housing project, in the name of “Parsvnath Exotica”, at Wazirabad, Golf Course Road, Sector-53, Gurgaon, in the year 2006 and made wide publicity of its facilities and amenities. The complainants were looking for a residential unit, in the locality. Believing upon the representations and promises of the opposite party-1, the complainants booked a flat in above project on 01.02.2007 and deposited booking amount.The opposite party-1 issued Allotment Letter dated 28.03.2007, allotting Apartment No. C-4-303, super built-up area 2645 sq.ft. and executed Flat Buyer Agreement on 30.05.2007, in their favour, for basic sale price Rs.16676725/-. The complainants opted for ‘construction link payment plan’. As per demand, the complainants deposited Rs.75000/- on 01.02.2007, Rs.4394238/- on 28.03.2007, Rs.1667672/- on 09.09.2008, Rs.1667932/- on 30.09.2009, Rs.3001810/- on 12.01.2010, Rs.1334138/- on 12.05.2010, Rs.1334138/- on 25.06.2010, Rs.1368492/- on 08.04.2011 and Rs.1368492/- on 07.01.2012 (total Rs.16211912/-). M/s. Parsvnath Developers Private Limited, vide letter dated 30.08.2010, informed that the project would now be handled by M/s. Parsvnath Hessa Developers Private Limited. The opposite parties used to send the demand letters through ordinary post, which used to be delivered after expiry of due date and the opposite parties charged Rs.312790.29/- towards interest @24% per annum, time to time due to delay in payment. For payment of the instalments, the complainants took loan from HDFC Bank, which was repaid on 02.01.2016. During this period, the complainants gave Rs.644592/- towards interest to the bank. Clause-10(a) of the agreement provides 36 months period from the commencement of the construction with grace period of six months, for delivery of possession. Due date of possession expired in the year 2011 but the opposite party failed to deliver possession. The complainants time to time inquired for delivery of possession then some tentative date used to be given. The opposite parties issued letter dated 27.02.2017, offering “fit-out possession” with demand of Rs.699536/- (giving rebate of Rs.476100/- due to delay and Rs.625000/- towards finishing work) + Rs.259186.85 towards Maintenance charges + Rs.9401.25 as Service Tax and + Rs.174811.25 or Rs.168561.25 as VAT. The agreement provided for delivery of possession after completion of construction as per specification and after obtaining “occupation certificate” but the opposite party offered “fit-out possession” without completion of the construction and without obtaining “occupation certificate” after expiry of about six years of the due date of possession although the opposite parties had realized 95% of the sale consideration till 07.01.2012. Then this complaint was filed on 18.03.2017, alleging deficiency in service.        

4.      The opposite parties have filed its written reply on 31.03.2017 and contested the matter. In the written reply allotment of flat to the complainants in the project “Parsvnath Exotica”, execution of Flat Buyer Agreement dated 30.05.2007 and deposits made by them, have not been disputed. The opposite parties stated that the owners of the project land obtained Licence Nos.69 to 74 of 1996, 52 to 57 of 1997, 1079 of 2006 and 191 of 2007, from Director, Town & Country Planning, Haryana, for development of group housing project. The owners through agreements dated 24.11.2004, 04.04.2005, 04.09.2009, 21.09.2006 and 01.10.2009, authorised Parsvnath Developers Private Limited to carry out the development, construction of the project and selling its units to the buyers. M/s. Puri Construction Ltd., one of the owners of the project land, applied for sanction of the layout plan on 29.11.2007, which was sanctioned on 10.04.2009. Parsvnath Developers Private Limited was carrying out construction, who later on transferred development and sale right to Parsvnath Hessa Developers Private Limited through agreement dated 09.12.2009, who completed construction of 11 towers out of total 18 towers and EWS towers and handed over possession over it to the allottees. Opposite party-2 completed construction of Towers No.D4, D5, D6, B1 and C4 and offered “fit-out possession” to the complainants through letter dated 27.02.2017. Real Estate Industry is facing problems of (i) Lack of adequate sources of finance, (ii) Shortage of labour, (iii) Rising costs of manpower and materials and (iv) Administrative obstacles in obtaining licenses, sanction of building plan and other approvals. In mid of 2008, global economy experienced slowdown, which badly affected real estate industry inasmuch as FDI inflow has been dropped significantly. Various allottees used to commit default in payment of instalments, which created shortage of fund time to time. Even the complainants themselves made delayed payments, on issue of reminders dated 22.09.2009, 17.12.2009, 25.02.2011 and 07.04.2011. Under clause-10 (c) of the agreement, the opposite parties are entitled for extension of the period, for which the construction was delayed due to force majeure. The opposite parties have made sincere effort for completing the project, the delay cannot be attributed to the opposite party. The opposite parties adjusted delayed compensation as per agreement, in the final demand letter. The complainants are speculative investors and not consumers. After November, 2016, resale of the flats in NCR has become difficult, as such, the complainants are denying to take possession. After completion of the project, the complainants cannot deny to take possession. In the complaint, exorbitant relieves are claimed, which shows malafide intension of the complainants for unjust enrichment. The complaint is liable to be dismissed.          

5.      The complainants have filed Rejoinder Reply, Affidavit of Evidence of Manoj Bandopadhyay and documentary evidence. The opposite party has filed Affidavit of Evidence of Madan Dogra and documentary evidence. Both the parties filed their written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. Clause-10(a) of Flat Buyer’s Agreement provides 36 months period from the commencement of the construction with grace period of six months, for delivery of possession. Due date of possession expired in the year 2011 but the opposite party failed to deliver possession although realized total Rs.16211912/- up to 07.01.2012 out of basic sale price of Rs.16676725/-. The opposite parties took plea of force majeure, which is not liable to be accepted inasmuch as payment plan was ‘construction link payment plan’ and the opposite parties realised all the instalment (except payable on offer of possession) till 07.01.2012. With an inordinate delay, the opposite parties issued letter dated 27.02.2017, offering “fit-out possession”, which was not contemplated either in agreement or under the law. The opposite parties were required to complete construction as per specification but interior finishing was not done till 27.02.2017. There is nothing on record to show that “occupation certificate” has been obtained till today. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Vs. Govind Raghavan, (2019) 5 SCC 725 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period. In Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that 9% interest, in case of refund, is just compensation, which is restitutory and compensatory both.

ORDER

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