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

One Smt. Meera Mehra and her husband Mr. Raj Kumar Mehra booked a residential apartment with the opposite party, namely, Parsvnath Developers Ltd., in a project namely ‘Parsvnath Exotica’ which the opposite party was to develop in Sector 53 of Gurgaon. Flat No. 501  in Tower No.B-5  of the aforesaid project was allotted to them for a basic sale price of Rs.2,03,40,000/-. The aforesaid allotment was purchased by the complainant Dr. Mohit Khirbat from Smt.  Meera Mehra and Mr. Raj Kumar Mehra on 13.5.2011. The aforesaid transaction was endorsed by the OP, namely, Parsvnath Developers Ltd. by transferring the allotment to the complainant on 20.5.2011.

2.      As per the agreement executed between the original allottees and the developer, the possession of the flat was to be delivered within 36 months of the commencement of the construction of the block in which the flat was located with a grace period of 6 months. Though the date on which construction of Tower No.B-5 commenced is not disclosed in the written version filed by the OP, the Statement of Account filed by the complainant today in the Court would show that the possession was to be delivered by 31.8.2013. This would be so because the OP itself gave rebate on account of delay possession compensation to the complainant for the period from September 2013 to December 2017. The grievance of the complainant is that the possession of the flat has not been delivered to them despite a sum of Rs.2,04,35,714/- having already been paid to the opposite party by October 2013. The OP had offered possession for the purpose of carrying fit outs to the complainant which was not acceptable to him, since he wanted legal possession of the flat, complete in all respects, after the requisite Occupancy Certificate in respect of the flat had been obtained. Therefore, the complainant is before this Commission seeking possession of the flat, complete in all respects along with compensation etc.

3.      The complaint has  been resisted by the OP which has admitted the allotment made to the predecessor in interest of the complainant as well as the endorsement of the transfer in favour of the complainant. It is alleged that the construction of the apartment was delayed on account of the reasons beyond the control of the opposite party. The said reasons according to the learned counsel for the OP were (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 in 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 – Mallika Raghavan Vs. Parsvnath Developers Ltd. decided on 19.4.2018. The decision of this Commission in   Mallika 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.” 

5.      I specifically asked the learned counsel for the opposite party as to whether they are in a position to give legal possession of the allotted flat to the complainant. The learned counsel submits that they are yet to receive the requisite Occupancy Certificate though they have already applied for the same. He further states that since the issuance of the Occupancy Certificate is not in their hands, they are not a position to commit any particular 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 allotment was purchased by the complainant on 13.5.2011, more than 4 years after booking by their predecessors in interest. They knew at that time that the possession cannot be delivered to them, within the time-limit stipulated in the Agreement with their predecessors in interest. Therefore, they should be awarded compensation by this Commission w.e.f. 3½ years of the purchase by them, though they should also get the rebate at the rate already granted by the opposite party, from the date committed for the delivery of possession, till the date from which they get compensation under the order of this Commission.

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

(i)      The opposite party shall complete the construction of the flat allotted to the complainant in all respects, obtain the requisite Occupancy Certificate from the concerned authorities at its own cost and responsibility and thereafter offer possession of the allotted flat to the complainant  on or before 31.03.2019.

(ii)      The opposite party shall pay in all inclusive compensation (including compensation for the mental agony and harassment) in the form of simple interest @ 8% per annum to the complainant with effect from 13.112014, i.e., 3 years and 6 months from the date of purchase by the complainant,  till the date on which possession in terms of this order is actually offered to the complainant after completing the construction of the flat in all respects and obtaining the requisite Occupancy Certificate.

(iii)     The OP shall also pay / credit rebate for the period from 1.9.2013 to 12.11.2014 at the rate at which the  said rebate was credited in the account of the complainant.

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

(v)     Before offering possession of the flat to the complainant in terms of this order, the opposite party shall give an inspection of the flat with liberty to take measurements along with his architect and for the excess area, if any, the complainant will be charged at the original allotment price. The price of the excess area, if any, shall be adjusted out of the compensation payable to the complainant in terms of this order but the opposite party shall be entitled to demand the balance amount, if any, after such adjustment.

(vi)     The increase if any in the stamp duty after 12.11.2014 shall be borne by the opposite party.

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