1.      Heard Mr. Sukumar Pattjoshi, Senior Advocate, assisted by Mr. Somesh Kumar Dubey, Advocate, for the complainants and Mr. Prabhakar Tiwari, Advocate, for the opposite party. 

2.      Nagen Chandra Patnaik and Mrs. Vidhyut Patnaik have filed above complaint for directing Parsvnath Hessa Developers Private Ltd. (the developer) (i) to deliver possession of the flat, complete in all respect, at the earliest, (ii) to grant compensation in the shape of interest @24% per annum from 15.02.2014, i.e. promised date of possession including grace period, (iii) to grant compensation of Rs.1000000/-, for mental agony and harassment, (iv) to grant Rs.500000/- as the cost of litigation and (v) any other relief which is deemed fit and proper, in the facts and circumstances. 

3.      The facts, as stated in the complaint and emerged from the documents attached with it, are that the opposite party (the developer) was a company, incorporated under the Companies Act, 1956 and engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2009, the developer launched a project of group housing in the name of “Parsvnath  Exotica” at village Wazirabad, Sector-54, district Gurgaon, Haryana. M/s. Gunjan Infrastructure Pvt. Ltd. (the predecessors-in-interest of the complainants) booked a 4BR flat, in this project and was allotted Flat No.-B-6-201, area 3390 sq.ft. and two car parking space, basic price Rs.24408000/- on 15.10.2010. The developer executed Flat Buyer Agreement dated 14.02.2011 in its favour. M/s. Gunjan Infrastructure Pvt. Ltd. opted for “Construction Linked Payment Plan” and till 20.01.2012 paid Rs.8333089/- to the developer. M/s. Gunjan Infrastructure Pvt. Ltd. transferred aforesaid flat to the complainants vide agreement dated 20.01.2012, for total sale consideration of Rs.27454000/- with prior permission of the developer. The complainants paid Rs.9901089/- to M/s. Gunjan Infrastructure Pvt. Ltd. and had to pay Rs.17552911/- to the developer i.e. as per “Construction Linked Payment Plan”. The developer mutated the names of the complainants over flat No.-B-6-201, in their record on 15.03.2012. The complainants deposited about 85% of total sale consideration till 2013 and total Rs.26703815.51/- till 03.03.2017 (including the money deposited by M/s. Gunjan Infrastructure Pvt. Ltd.), as per ledger of the developer. Under Clause-10(a) of Flat Buyer Agreement dated 14.02.2011, possession has to be delivered within 36 months from the commencement of the construction with grace period of six months, which period expired in March, 2015. However, the developer stopped construction in 2013. The complainants met with the Director of the opposite party in March, 2016, and then he informed that the construction would be resumed within a short time and completed till June, 2016. The complainants wrote an email dated 06.10.2016, inquiring expected date of possession. The developer did not give any reply. The complainants visited site and found that the developer had opened its office in the flat allotted to them. This complaint was filed on 05.05.2017, alleging deficiency in service by the developer.  

4.      The opposite party filed its written reply on 19.09.2017, in which the material facts as stated in the complaint have not been denied. The developer stated that the complainants were investors and subsequent purchasers, as such, they were not a consumer and the complaint on their behalf was not maintainable. The developer entered into an agreement with M/s. Puri Construction Ltd. on 09.12.2009, for development of the project “Parsvnath Exotica”. Thereafter, the construction of the project was started. M/s. Gunjan Infrastructure Pvt. Ltd. never adhered to the payment plan and had committed defaults in payment of instalments. Various reminders were issued to him for deposit of the amount of instalments. Various other allottees were defaulters, as such, the construction has been delayed. Out of 18 multi-storied towers, constructions of 11 towers were completed and possession over more than 450 flats were given. The developer was making all efforts to complete construction as early as possible. The complaint has been filed with intension of unjust enrichment.    

5.      The complainants filed their Rejoinder reply on 24.10.2018, in which, the facts stated in the complaint are reiterated and Affidavit of Evidence of Nagen Chandra Patnaik, on 24.10.2018. The opposite party filed Affidavit of Evidence of Madan Dongra, on 25.01.2019. Both the parties filed their short synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, 2021 SCC OnLine SC 479, held that a subsequent purchaser steps in the shoes of original allottee, with same right and obligation. As such preliminary objection raised by the developer is not sustainable.

7.      The complainants deposited about 85% of total sale consideration till 2013 and total Rs.26703815.51/- till 03.03.2017 (including the money deposited by M/s. Gunjan Infrastructure Pvt. Ltd.), as per ledger of the developer. Under Clause-10(a) of Flat Buyer Agreement dated 14.02.2011, possession had to be delivered within 36 months from the commencement of the construction with grace period of six months, which period expired in March, 2015. It may be mentioned that Aman Chawla and others, allottees of Flat No.-B-6-202, in this project, filed Consumer Case No.2355 of 2017, for similar relief, which was allowed by this Commission vide judgment dated 21.11.2019. The developer has challenged the order of this Commission, in Civil Appeal No.6664 of 2019, in which, Supreme Court, by an interim order has directed to hand over possession over the flat, complete in all respect. The developer, in its written arguments, has stated that Supreme Court, in Contempt Petition No.642 of 2020, filed by Rohit Agrawal, another allottee in this project, has granted time till 21.01.2022, for completion of the project and delivery of possession. 

8.      So far as the compensation for delayed possession is concerned, this Commission in Consumer Case No.2355 of 2017, Aman Chawla Vs. Parsvnath Hessa Developers Pvt. Ltd. (decided on 21.11.2019), directed for payment of interest @8% per annum on the deposit of allottees. However, Supreme Court in Wg. Cdr. Arifur Rehman Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512, has ruled for the compensation for delayed possession as the interest @6% per annum of the deposit of allottees. In this case, the period of three years six months will be counted from 20.01.2012, when the complainants entered into agreement with M/s. Gunjan Infrastructure Pvt. Ltd., in respect of the flat.

ORDER

  In view of the aforesaid discussions, the complaint is allowed. The opposite party is directed to hand over possession of Flat No.-B-6-201, in “Parsvnath  Exotica”, complete in all respect, within period of two months, after taking balance sale consideration, in accordance with Flat Buyer Agreement dated 14.02.2011 as modified by agreement dated 20.01.2012. The developer shall give the compensation for delayed possession as  interest @6% per annum to the complainants on their deposit from due date of possession till the date of offer of possession. The builder shall issue possession letter and statement of accounts within one month, giving at least six weeks’ time to the complainants to deposit balance amount if any. On deposit of balance amount, the developer shall hand over possession and execute conveyance deed to the complainant forthwith.