1.      Heard Ms. Monika Shahi, Advocate, for the complainants and Mr. Prabhakar Tiwari, Advocate, for the opposite party, through video conferencing.

2.      Sunil Monga and others (the complainants) filed this complaint for directing Parsvnath Developers Limited (the opposite-party), (hereinafter referred to as the builder) (i) to refund an amount of Rs. 2,63,01,614/- (principal amount of Rs.1,04,28,761/- + interest of Rs. 1,58,72,853/-) along with pendent lite and future interest @ 18% per annum, (ii) to pay exemplary damage of Rs.10,00,000/-, (iii) to pay the cost of litigation and (iv) any other relief which the Commission deems fit and proper, in the circumstances of the case, be passed.

3.      The facts as stated in the complaint are that the builder was a company, engaged in the business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder launched for construction of residential complex in the name of “Parsvnath Exotica” at village Wazirabad, in Sector-53, Gurgaon, Haryana, in 2012. The complainant booked a 3BHK flat, admeasuring of 2810 Sq. ft, in “Parsvnath Exotica” in June, 2006 and was allotted Flat No. D-5-GO-1. Basic price of the flat was Rs.1,30,00,000/- (at the rate of Rs. 4021.35 per sq. ft.). The complainants deposited Rs. 7,32,531/- on 05.06.2006, Rs. 14,65,074/- on 23.06.2006, Rs. 16,65,054/- on 31.08.2006, Rs. 1025545/- on 18.11.2006. (total Rs. 48,88,203.63/-), up to execution of Flat Buyer Agreement (for short FBA), on 16.01.2007. The complainants initially opted for “Construction Link Plan” but later on they opted for “Down Payment Plan With 8% Rebate” under which 15% of sale consideration has to be paid at the time of booking, 72% of sale consideration + PLC+ Car Parking, within 45 days of booking and 5% at the time of offer of possession. The complainants deposited Rs. 55,40,557/- on 17.01.2007, vide Receipt No. 50042661. He had to deposit only 5% of the sale consideration at the time of notice for possession. In clause-10 (a) of the FBA, promised date of possession was mentioned as 36 months with grace period of six months, from the date of commencement of the construction of particular block, in which the flat was located. The tower, in which, the complainants were allotted flat, was shown to be a part of the main complex, in the construction plan and site lay out, at the time of booking, afterward this tower was constructed separately from the rest of the tower along with two more towers, due to which value of the flat of the complainants was diminished. The complainants were repeatedly making inquiry from the opposite regarding completion of the construction and delivery of possession, after expiry of the promised period of possession but no satisfactory reply was given. Due to unreasonable delay in delivery of the possession, the complainants requested to return their money of Rs. 1,04,28,760/- along with interest, through email dated 15.04.2015, but no reply was given. Due to inordinate delay in delivery of possession, complainant-3, who was a 92 years old man, was compelled to live in a rented accommodation, on heavy rent. On these allegations, this complaint was filed on 27.04.2015.                                   

4.      The builder filed its written reply on 14.10.2015 and contested the complaint. In written reply, they admitted booking, allotment of Flat No. D-5-GO-1 (size 2810 Sq. ft.) to the complainants, deposit of total Rs. 1,04,28,760/ and execution of Flat Buyer’s Agreement on 16.01.2007. However, it has been stated that draft of Flat Buyer’s Agreement was handed over to the complainants on 10.06.2006 but they signed it on 16.01.2007. It has been stated that M/s. Puri Construction, M/s. Florentine Estates of India, M/s. MAD Entertainment Network Ltd., Mr. Sunil Manchanda, Mr. Arjun Puri, Mr. Mohinder Puri and Mr. Ram Prakash were owner of the land, over which the project was constructed. The builder entered into agreements dated 24.11.2004, 04.04.2005, 21.09.2006, 04.09.2009 and 01.10.2009, with the aforesaid owners, for development and construction of Parsvnath Exotica. M/s. Puri Construction Ltd. moved an application to the Director, Town and Country Planning, Haryana on 11.12.2004, for approval of Building Plans of Group Housing Scheme, of which approval was granted on 07.01.2005. M/s. Puri Construction Ltd. moved another application to the Director, Town and Country Planning, Haryana on 11.12.2004, for approval of Building Plans of Group Housing Scheme, of Pocket-B, in which the flat of the complainants was located, of which approval was granted on 10.04.2009. M/s. Puri Construction Ltd. moved another application to the Director, Town and Country Planning, Haryana on 29.11.2007, for approval of Building Plans of Group Housing Scheme, of other part of Pocket-B, of which approval was granted on 10.04.2009. Thereafter, the construction was started as such delay in completing construction and delivery of possession cannot be attributed to the builder. Out of 18 multi-storied residential towers in Parsvnath Exotica (excluding EWS towers), construction of 11 towers were completed and more than 450 flat buyers have taken possession in it. The construction of remaining 5 towers (including tower-D-5) (out of total 7 remaining towers), the constructions have been completed and the builder has applied for grant of Occupation Certificate. The builder has offered fit out possession to the complainants on 12.03.2015 with rebate of Rs. 6,25,000/- as various flat buyers have taken fit out possession, in these towers. The builder does not gain anything, due to delay in construction. The builder has to face wide scale financial ramification, due to which the construction was delayed. The builder has obtained Foreign Direct Investment of Rs. 75 crores through Sun Opollo Fund, for completing the construction. The builder updated the complainants about the progress in the construction, time to time. The delay in construction has been caused for the reason beyond the control of the builder and there was no deficiency in service on the part of the builder. The complainants have made exaggerated claim for refund of money contrary to the FBA.          

5.      The complainants filed Affidavit of Evidence of Sunil Monga. Along with the complaint, Copy of Flat Buyer’s Agreement dated 16.01.2007, Copies of payment receipts, Copy of receipt relating to payment of rent and Email dated 15.04.2015 were filed as Annexures-C-1 to C-4. Later on, Copy of Project Lay-out as supplied at the time of booking, Copies of the photographs of the construction of the towers and some orders of this Commission passed in other cases were filed as Exhibits CW-1/4 to CW-1/7. The builder filed Copies of Agreements dated 24.11.2004 and 21.09.2006, Copies of letters of the Director, Town and Country Planning, Haryana dated 07.01.2005 and 10.04.2009, Copy of the letter dated 29.04.2009, 19.12.2009 and 12.03.2015 and photographs of the project as Annexures-R-1 to R-8. 

6.      According to the complainants, they booked a 3BHK flat, admeasuring of 2810 Sq. ft, i.e. Flat No. D-5-GO-1, in “Parsvnath Exotica” in June, 2006. Basic price of the flat was Rs. 1,30,00,000/- (at the rate of Rs. 4021.35 per sq. ft.). The complainants deposited total Rs. 48,88,203.63/-, up to execution of the FBA, on 16.01.2007. The complainants then opted for  “Down Payment Plan With 8% Rebate” under which 15% of sale consideration has to be paid at the time of booking, 72% of sale consideration + PLC+ Car Parking, within 45 days of booking and 5% at the time of offer of possession. The complainants deposited Rs. 55,40,557/- on 17.01.2007. Under clause-10 (a) of the FBA, promised date of possession was mentioned as 36 months with grace period of six months, from the date of commencement of the construction of particular block, in which the flat was located. Till the date of filing of the complaint, neither the Occupancy Certificate was obtained nor was possession offered although more than 9 years have passed after booking of the flat. The tower, in which, the complainants were allotted flat, was shown to be a part of the main complex, in the construction plan and site lay out, at the time of booking, afterward this tower was constructed separately from the rest of the tower along with two more towers, due to which value of the flat of the complainants was diminished.

7.      The builder does not deny the aforementioned facts. According to the builder as delay was caused in execution of development agreements with the owners of the land and later on,  approval of lay out plan was delayed as such, the construction could not be completed within promised period. However, the construction was completed in March, 2015 and the builder had applied for issue of the Occupation Certificate. The builder has offered fit out possession to the complainants on 12.03.2015 with rebate of Rs. 6,25,000/- as various flat buyers have taken fit out possession, in these towers but the complainants did not turn up. The delay was caused for the reasons beyond the control of the builder. Under the FBA, the builder is liable for delayed compensation, which has been offered along with letter dated 12.03.2015. 

8.      We have considered the arguments of the parties and examined the record. Till today, the builder has not produced the Occupation Certificate, relating to Tower-5, in which the flat of the complainants was allotted in June, 2006 and 87% of sale consideration was deposited till 17.01.2007. Supreme Court in DLF Home Developers Ltd. Vs. Capital Green Flat Buyers Association, 2020 SCC OnLine SC 1125 has held that time taken in obtaining approval of lay out plan, is always expected. The builder cannot take this defence for delaying construction.

9.        Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevo D’Lima, (2018) 5 SCC 442 and Kolkata West Internation City Pvt. Ltd. Vs. Devasis Rudra, 2019 6 SCC OnLine SC 438, has held that an allottee cannot be made to wait for indefinite period for the possession. The builder could not obtained Occupation Certificate till today although 87% of sale consideration was paid till 17.01.2007, and promised period of possession was 3 years 6 months. So far as  possession notice dated 12.03.2015, for fit out possession is concerned, the complainants have filed various photographs showing that the construction was going on, even after issue of possession notice. If the construction was not complete and not in habitable condition, then issue was notice for fit out possession was not proper. Without obtaining Occupancy Certificate from the statutory authority, possession notice could not be given. In such circumstances, the complainant was justified in not taking possession of the flat.

O R D E R

In view of aforementioned discussions the complaint is allowed with cost of Rs.one lakh. The builder is directed to refund the entire amount deposited by the complainant along with interest @ 9% per annum, from the date of each deposit till the date of refund, within three months. If the builder fails to comply the order within three months from today, then he shall be liable to pay interest at the rate of 12% per annum, after expiry of three months.