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

          In CC No.3297 of 2017, one Mr. Gaurav Dhawan booked a residential flat with Parsvnath Hessa Developers Pvt. Ltd. in a project namely Parsvnath Exotica which was to be developed in Sector-53 of Gurgaon.  Flat No.B6-102 in Tower B-6 was allotted to him for a basic sale price of Rs.2,98,99,800/-.  The aforesaid allotment was later purchased by the complainants from Mr. Gaurav Dhawan and the allotment was transferred by the OP in their favour on 26.06.2012.  The possession of the flat in terms of clause 10(a) of the Flat Buyers Agreement was to be delivered within a period of 36 months from the commencement of construction of the block in which the flat was located or 24 months from the booking of the flat whichever was later, with a grace period of six months.  The possession of the flat having not been offered to them despite they having already paid Rs.3,04,94,143/-, the complainants are before this Commission seeking refund of the amount paid in respect of the aforesaid flat by them and their predecessor in interest, alongwith compensation etc.

2.      The complainant in CC No.3542 of 2017 also booked a residential flat in the above referred project and flat no.B5-502 in Tower B-5 was allotted to her at a basic cost of Rs.1,86,45,000/- alongwith cost of Rs.4 lacs for the car parking.  The Buyers Agreement was executed between the complainant and Parsvnath Hessa Developers Pvt. Ltd. on 07.01.2015 and contained an identical clause for the delivery of the possession.  Her grievance is that possession of the flat has not been offered to her despite she having already paid Rs.1,85,00,527.89p in respect of the aforesaid flat.  She is seeking refund of the aforesaid amount alongwith compensation etc. 

3.      The complainants in CC No.3543 of 2017 also booked a residential flat in the very same project to be developed by Parsvnath Hessa Developers Pvt. Ltd. and flat no. B6-603 in Tower B-6 was allotted to them for a total consideration of Rs.2,40,55,400/-.  The Flat Buyers Agreement executed on 25.05.2011 also contained an identical clause for delivery of possession of the flat.  They are also aggrieved on account of possession having not been offered to them despite they having paid Rs.2,10,32,198/- to the developer.  They are before this Commission seeking refund of the aforesaid amount alongwith compensation etc. 

4.      The OPs have filed reply contesting the consumer complaints.  However, they have admitted the allotments made to the complainants as well as the payments received from them.  The learned counsel for the OPs state that the complaints have been resisted by them, on the same grounds on which they had contested several other consumer complaints including Consumer Complaint No.2133 of 2017 – Ashwani Kapoor Vs. M/s Parsvnath Hessa Developers Pvt. Ltd. decided on 14.08.2018.  The decision of this Commission in Ashwani Kapoor (supra) to the extent it is relevant, reads as under:

(2)     The Opposite Party has filed its written version contesting the complaint but has admitted that allotment made to the predecessors of the Complainant as well as transfer of the allotment in favour of the Complainant.  It has also not been disputed that the Opposite Party has already received a sum of Rs.1,75,09,031/- in respect of the allotted flat.  The learned Counsel for the Opposite Party states that the construction was delayed on account of the reasons beyond the control of Opposite Party.  The aforesaid reasons according to the Learned Counsel for the Opposite Party 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.

(4)   The grounds on which the complaint has been resisted have already been rejected by this Commission in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd. decided on 21.1.2016 and Consumer Complaint No.127 of 2017 – Mallika Raghavan Vs. Parsvnath Developers Ltd. decided on 19.4.2018.

5.      The decision of this Commission in Mallik Raghavan (supra) to the extent it is relevant, reads as under:

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.      The allotments to the complainants were made in Towers B5 & B6.  The date on which the construction of the aforesaid towers commenced has not been disclosed by the OP though they are the best person to know when the said construction had commenced.  In any case, it cannot be disputed that more than sufficient time has already been taken by the developers from the date on which the Flat Buyers Agreements were executed.  This is not the case of the OP that they have obtained the requisite Occupancy Certificate in respect of the flats allotted to the complainants.  There is no allegation even that the OP has applied for the issuance of the requisite Occupancy Certificate.  Therefore, the developer is not in a position to deliver lawful possession of the flats to the complainants since delivery of possession without Occupancy Certificate would not be permissible in law and the allotted would not be able to use and occupy the flat without such a certificate.  In fact, the developer itself has credited a special rebate for the period from September 2013 to December 2017 in the account of the complainant in CC No.3542 of 2017 namely Mrs. Renu Agarwal.  This is a clear cut admission of delay on the part of the OP in offering possession of the allotted flat to Smt. Renu Agarwal who was allotted a flat in Tower B-5.

7.      In my view, since the developer does not even have the requisite Occupancy Certificate for the flats allotted to the complainants, it cannot ask the complainants to wait further for the delivery of possession.  The complainants therefore, are entitled to seek refund of the amount paid by them alongwith appropriate compensation.

8.      The learned counsel for the complainants states on instructions from Mr. Anil Agarwal, husband of the complainant in CC No.3542 OF 2017 and Mr. Shailendra Singh, complainant in CC No.3297 of 2017 that the complainants are restricting their claim to the refund of the principal amount paid by them alongwith compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date of refund.  Mr. Anil Agarwal states that he is also authorized to make a similar statement on behalf of Mrs. Satish Suri & anr., complainants in CC No.3543 of 2017.  He states that Mrs. Satish Suri has authorized him to make the same statement which he is making in respect of CC No.3542 of 2017 filed by his wife Mrs. Renu Agarwal.  The learned counsel appearing for Mrs. Satish Suri & anr., complainants in CC No.3543 of 2017 also makes a similar statement on behalf of the aforesaid complainants and restricts their claim to refund of the principal amount paid by them alongwith compensation in the form of simple interest @ 10% p.a.

9.      Since the Flat Buyers Agreement was executed only with Parsvnath Hessa Developers Pvt. Ltd., the complaints are disposed of with the following directions:-

(i)      In CC No.3297 of 2017, the opposite party, namely, Parsvnath Hessa Developers Ltd. shall refund the entire amount of Rs.3,04,94,143/- to the complainants, along with all inclusive (including compensation for the mental agony and harassment) compensation in the form of simple interest at the amount @ 10% per annum w.e.f. the date of each payment till the date of refund in terms of this order.

(ii)      In CC No.3542 of 2017, the opposite party, namely, Parsvnath Hessa Developers Ltd. shall refund the entire amount of Rs.1,85,00,527.89p to the complainant, along with all inclusive (including compensation for the mental agony and harassment) compensation in the form of simple interest at the amount @ 10% per annum w.e.f. the date of each payment till the date of refund in terms of this order.

(iii)     In CC No.3543 of 2017, the opposite party, namely, Parsvnath Hessa Developers Ltd. shall refund the entire amount of Rs.2,10,32,198/- to the complainant, along with all inclusive (including compensation for the mental agony and harassment) compensation in the form of simple interest at the amount @ 10% per annum w.e.f. the date of each payment till the date of refund in terms of this order.  

(iv)      The opposite party namely Parsvnath Hessa Developers Pvt. Ltd. shall pay a sum of Rs.25,000/- as the cost of litigation in each complaint.

(v)     The payment in terms of this order shall be made within four months from today.