JUSTICE V.K.JAIN, (ORAL)

1.      I have heard the learned counsel for the parties.

2.      The complainants who are father and daughter booked a residential unit with the opposite party in a project, namely, ‘Upcountry’ which the OP was to develop in Sector 17A of Yamuna Expressway Industrial Development Area. Vide allotment letter dated 13.12.2013, Villa No.R023S600038/Villa # 038 in Tower S6 was allotted to them for a consideration of Rs.10286185/-.

3.      The following was the payment plan stipulated in the allotment letter:-

4.      The possession of the unit was to be delivered to the complainants in August, 2014, though a grace period of six months was available to the opposite party  in the event of unforeseen circumstances. Vide letter dated 7.9.2015, the OP informed the complainants that the villa allotted to them was at pre-possession  stage and some formalities were required to be fulfilled before actual possession was offered to them. They were informed that the possession will be formally offered to them after completion of the prepossession formalities. A sum of Rs.6892020/- was demanded from the complainants,  which was later revised to Rs.824153/-. A document dated 15.3.2016 showing handing/taking over the physical possession of the villa was executed between the parties. It is, however, an admitted position that neither the requisite Occupancy Certificate in respect of the allotted villa had been obtained by the opposite party by that date nor the physical possession of the villa was actually delivered to the complainants. The said handing/taking over the document appears to have been executed only with a view to enable the complainants to obtain benefit of capital gain tax.

5.      Since the physical possession of the villa has not been handed over to the complainants, they are before this Commission seeking possession of the allotted villa with compensation. They are also seeking refund of the amount of Rs.7,91,875/-  paid by them to the OP towards PLC, firefighting and removal of defects of the villa alongwith interest and compensation.

6.      The complaint has been resisted by the OP on several grounds. However, the learned counsel for both the parties state on instructions that they are ready to the OP being directed to offer possession of the villa along with compensation in terms of the order of this Commission dated 14.3.2017 passed in C.C. No.1009 of 2016 - Kamal Kishore & Anr. Vs. M/s Supertech Ltd.

7.      The learned counsel for the complainants also states that since the OP has not offered possession of the villa subject matter of the decision of this Commission in Kamal Kishore & Anr. (supra) even on expiry of two years from the date of the order despite only six months having been given for this purpose, they also request that the entire principal amount paid by them to the OP be refunded to them along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date of refund, in the event the OP is not able to deliver possession of the villa after obtaining the requisite Occupancy Certificate within six months from today. The prayer in my view is justified considering that the possession in terms of the order dated 14.3.2017, has not been delivered till today.

8.      The complaint is therefore, disposed of with the following directions:-

(i)      The opposite  party shall offer possession of villa in question to the complainants within six months from today, after completing its construction in all respects as per the contractual obligation of the parties and obtaining the requisite occupancy certificate;

(ii)      The OP shall pay compensation calculated @ 9% per annum of the amount paid by the complainant, w.e.f. 01.03.2015 till the date on which the possession in terms of this order is offered;

(iii)     The OP while offering possession shall be entitled to recover charges in terms of the view taken in Kamal Kishore & Anr. (supra);

(iv)    The compensation payable to the complainants in terms of this order shall be adjusted out of the charges, if any, which remain payable to the OP in terms of decision of this Commission in Kamal Kishore & Anr. (supra) and the balance compensation if any, shall be paid at the time of offering possession in terms of this order.

 (v)     The OP shall also pay a sum of Rs.25,000/- as cost of litigation to the complainants.

 (vi)   If the OP is unable to obtain the requisite occupancy certificate in respect of the allotted villa and offer possession of the said villa to the complainants in terms of this order, it shall refund the entire amount received by it from the complainants to them along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date of refund.