1.      Heard Mr. Mayank Mikhail Mukherjee, Advocate, for the complainants and Mr. Prabhakar Tiwari, Advocate, for opposite party.

2.      Above complaint has been filed, for directing the opposite party to (i) refund  Rs.19832568.21 with interest @24% per annum from the date of respective deposit till the date of payment to the complainants, (ii) pay Rs.175768.93, the amount of interest paid by the complainants to Indiabulls Housing Finance, on the loan taken by them, (iii) pay Rs.50/- lacs, as compensation for mental agony and harassment, (iv), (v) pay the costs of litigation; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that M/s. Parsvnath Hessa Developers Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite party launched a group housing project in the name of “Parsvnath Exotica”, at village Wazirabad, Sector-53, Gurgaon, and made wide publicity. Anil Bedi and his wife Mrs. Sarita Bedi booked a 3BR flat on 09.10.2010 and deposited booking amount. The opposite party allotted Flat No.C-4-103 and executed Flat Buyer Agreement dated 10.12.2010 in their favour of Flat No.C-4-103, admeasuring 2645 sq.ft. at the rate of Rs.7200/- per sq.ft., basic price of Rs.19044000/- + Rs.400000/- for one covered Car Parking spaces, in “Parsvnath Exotica”. Anil Bedi and Mrs. Sarita Bedi opted for “Construction Linked Payment Plan”, and as per demand, deposited Rs.750000/- on 09.10.2010, Rs.1235208/- on 13.12.2010, Rs.1000000/- 11.01.2011, Rs.5822332/- on 01.04.2011, Rs.500000/- on 22.07.2011, Rs.500000/- on 26.07.2011, Rs.500000/- on 26.07.2011, Rs.2200000/- 18.08.2011, Rs.706877/- on 13.09.2011 and Rs.271311/- on 22.09.2011. Anil Bedi and Mrs. Sarita Bedi transferred above Flat No.C-4-103 to the complainants on 04.09.2011.The opposite party gave approval for transfer on 14.09.2011 and endorsed the names of the complainants on 08.10.2011. The complainants paid Rs.1933438/- on 04.10.2011, Rs.20000/- on 04.10.2011, Rs.956719/- on 05.12.2011, Rs.20000/- on 05.12.2011, Rs.956720/- on 03.02.2012, Rs.20000/- on 03.02.2012, Rs.15000/- on 06.04.2012, Rs.961719/- on 06.04.2012, Rs.971623/- on 05.06.2012, Rs.10000/- on 05.06.2012, Rs.30000/- on 01.07.2012 and Rs.951622.21 on 26.07.2012 (total amount of Rs.19832568.21). The complainants took loan of Rs.4034000/- from Indiabulls Housing Finance Limited for payment to the opposite party, which was fully refunded by the complainants on 19.03.2012. As per clause-10(a) of the agreement, the construction of the flat had to be completed within 36 months from the date of commencement of the construction with grace period of six months. The period of 42 months expired in June, 2014. But the possession was unreasonably delayed. The opposite party offered fit-out possession vide letter dated 27.02.2017. The complainants vide email dated 10.03.2017, refused to take fit-out possession. The complainants received a letter dated 20.06.2017, along with an order of Civil Judge (Senior Division), Gurgaon dated 20.06.2017, passed in Civil Suit (Commercial) No.402 of 2017, by which the opposite party was restrained from transferring Flat No.C-4-103, along with some other flats in “Parsvnath Exotica”, as these flats were already booked to Delhi Iron & Steel Co. (P) Ltd., prior to booking to Anil Bedi and Mrs. Sarita Bedi. Then the complaint was filed on 18.07.2017, alleging unfair trade practice and deficiency in service.

4.      The opposite party filed its written reply on 13.11.2017 and contested the case. The material facts relating to the project, allotment of the flat to Anil Bedi and Mrs. Sarita Bedi and thereafter to the complainants and deposits made by them, have not been disputed. The builder stated that Real Estate sector was facing problems like(i) Lack of adequate sources of finance,(ii) Shortage of labours (iii) Rising of the costs of materials and labour, (iv) Obtaining various approvals from Government departments, (v) Global slowdown of economy since 2008, which seriously affected foreign investment in real estate sector and (vi) Default in payment of instalment by various allottees. The owners of the land obtained licences from Director, Town & Country Planning Haryana, for development of group housing project. Through various development agreements with the owners of the land, M/s. Parsvnath Developers Limited acquired development right. The builder submitted Layout Plan of the project for approval, which was approved on 10.04.2009 then construction was started. Out of 18 multi-storeyed residential towers (excluding EWS towers), 11 towers have been completed and physical possession over more than 450 flats have been given. Remaining 5 towers (B-1, C-4, D-4, D-5 and D-6) were completed and the builders have applied for issue of “Occupation Certificate” and offered fit-out possession to the complainants vide letter dated 27.02.2017. But the complainants did not take possession. Due to force majeure reasons the construction could not be completed. Under the agreement, the allottees are entitled for delayed compensation at the time of offer of possession. The builder gave special rebate of Rs.625000/- to the complainants in the letter dated 27.02.2017. Delhi Iron & Steel Co. (P) Ltd. has filed Civil Suit (Commercial) No.402 of 2017, on false allegations. The builder was contesting that suit. The complainants purchased the flat from open market and the builder has not committed any unfair trade practice.          

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence of Amitabha Chatterjee and documentary evidence. The opposite party filed Affidavit of Evidence of Madan Dogra and documentary evidence.

6.      I have considered the arguments of the parties and examined the record. The opposite party allotted Flat No.C-4-103, to Anil Bedi and Mrs. Sarita Bedi on 09.10.2010 and executed Flat Buyer Agreement dated 10.12.2010 in their favour of Flat No.C-4-103, admeasuring 2645 sq.ft. at the rate of Rs.7200/- per sq.ft., basic price of Rs.19044000/- + Rs.400000/- for one covered Car Parking spaces, in “Parsvnath Exotica”. Anil Bedi and Mrs. Sarita Bedi transferred the above flat to the complainants with the permission of the opposite party on 04.09.2011. Anil Bedi, Mrs. Sarita Bedi and the complainants deposited Rs.19832569/- till 26.07.2012. As per clause-10(a) of this agreement, the construction of the flat has to be completed within 36 months of commencement of construction with grace period of six months, which period expired till December, 2013. Even if this period of 42 months is counted from the date of allotment, then also it expired in June, 2014. The opposite party realized more than the basic price till 26.07.2012, from the complainants but neither construction was completed nor possession was offered on due date. As such there was deficiency in service on the part of the opposite parties. In the meantime, Civil Judge (Senior Division), Gurgaon, vide order dated 20.06.2017, passed in Civil Suit (Commercial) No.402 of 2017, restrained the opposite party from transferring Flat No.C-4-103, along with some other flats in “Parsvnath Exotica”. This order has not been vacated or set aside till today. Selling the flats, which have been already sold, to new persons is unfair trade practice.

7.      Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.

8.      Supreme Court in Experion Developers (P) Ltd. Vs. Sushama Ashok Shiroor, 2022 SCC OnLine 416, held that in the matter of refund, award of interest @9% per annum, from the date of respective deposit will appropriate restitutory and compensatory compensation. In Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, held that in the matter of contractual obligation, there is no scope for compensation for mental agony and harassment. In DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, II (2019) CPJ 117 (SC) held when interest is awarded as compensation then awarding additional compensation was not justified.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed with exemplary cost of Rs.2/- lakhs. The opposite party is directed to refund entire amount deposited by the complainants including the amount deposited by Anil Bedi and Mrs. Sarita Bedi with interest @9% per annum, from the date of respective deposits till the date of payment, within a period of two months.