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

A company namely M/s. Gunjan Infrastructure Private Limited booked a residential flat with the opposite party in a project namely Parsvnath Exotica, which the opposite party was to develop in Sector-53 of Gurugram.  Flat No.B-6-202 in Tower-B-6 of the above referred project was allotted to the aforesaid company which then executed a flat buyer agreement dated 14.02.2011 with the opposite party namely M/s. Parsvnath Hessa Developers Pvt. Ltd.  The said allotment was sold by M/s. Gunjan Infrastructure Private Limited to Mrs. Noour Bhatia and Mr. Rakesh Bhatia.  The allotment was later purchased by the complainants from Mrs. Noour Bhatia and Mr. Rakesh Bhatia.  The allotment was endorsed in favour of the complainants on 20.02.2012.  As per clause-10(a) of the agreement executed between the original allottee and the opposite party, the construction was to be completed within 36 months of commencement of the particular block in which the flat was located or 24 months from the date of booking whichever was later.  The grace period of six months was also provided to the developer.  It was admitted before this Commission on 30.07.2018 in Consumer Complaint No.828/2017—Gp. Capt. Suman Chopra Vs. Parsvnath Developers Pvt. Ltd.—that the construction of Tower B-6 had commenced on 14.06.2010.  The grievance of the complainant is that the possession of the flat has not been offered to them despite they having already paid 95% of the sale price amounting to Rs.2,39,49,871/- to the opposite party.  The complainants are, therefore, before this Commission seeking possession of the flat complete in all respects alongwith the compensation.

2. The complaint has been resisted by the opposite party which has admitted the initial allotment as well as the subsequent transfer of the said allotment.  The payment received in respect of the allotted flat has also not been disputed. 

3.      The complaint according to both the counsel has been resisted on the grounds which this Commission has already rejected in several other Consumer Complaints.  A reference in this regard can be made to decision of this Commission in Consumer Complaint No.127/2017 – 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.” 

4. On being enquired, the learned counsel for the opposite party states that the construction of this flat is not complete as yet and therefore they are not in a position to commit to any particular time frame for completion, obtaining the occupancy certificate and then delivering possession to the complainant. 

5. In my view, the opposite party cannot be allowed to take an indefinite time to perform its contractual obligation of completing the construction and obtaining the occupancy certificate.  The opposite party must complete the construction and obtain the requisite occupancy certificate at its own responsibility in a time bound manner. 

6.      My attention has been drawn to para 19 (vi) of the decision of the Hon’ble Supreme Court dated 10.5.2019 in Civil Appeal No. 4910-4941/2019, DLF Homes Panchkula (Pvt.) Ltd. Vs. D.S. Dhanda & Connected matters, where the Hon’ble Supreme Court, awarded interest in the following terms:

          “19 (vi)       In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years form the agreement or from the date of transfer, whichever is later.”     

7.      In view of the above decision, the complainant should get interest with effect from 3 ½ years from 20.2.2012 i.e. with effect from 20.8.2015, the maximum time for the completion of the construction in this case being 3 ½ years.  They should however continue to retain the rebate, if any, already credited by the OP in their account for the period prior to 20.8.2015.

8. 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 31.03.2020.

(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 20.08.2015, i.e., 3 years and 6 months from the date of purchase by the complainants,  till the date on which possession in terms of this order is actually offered to the complainants after completing the construction of the flat in all respects and obtaining the requisite Occupancy Certificate.

(iii)     The OP shall not withdraw the rebate, if any, already credited in the account of the complainants.

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

 (v)     The increase if any in the stamp duty after 20.08.2015 shall be borne by the opposite party.

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

(vii)    If the order passed by this Commission in Mallika Raghavan (supra) is set aside or modified by the Hon’ble Supreme Court, the order so passed by the Hon’ble Supreme Court will also apply to this case.