1.      Heard Ms. Sweta Rani, Advocate, for the complainants, Mr. Pravin Bahadur, Advocate, for the opposite parties.

2.      Tejinder Singh Atwal and Tejinder Kaur Atwal have filed above complaint for directing opposite parties (i) to offer possession of the flat allotted to them complete in all respect including occupation and completion certificate; (ii) to pay interest @18% p.a. compounded quarterly on the deposit of the complainants from due date of possession till the date of offer of possession; (iii) to pay Rs.2000000/- as compensation for mental agony and harassment; (iv) to refund Rs.186835/- along with interest @18% p.a. from 29.02.2016 till its realization (excess amount realised in head of VAT); (v) to pay Rs.200000/- as cost of litigation; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that Varali Properties Limited (opposite party-1) and Athena Infrastructure Ltd. were companies registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. Athena Infrastructure Ltd. was owner of land at village Pawala Khusrupur, Sector-110, District Gurgaon and obtained licence for its development as township. By way of collaboration agreement between them, earlier Athena Infrastructure Ltd. had taken the work of development of the project in the name of “Indiabulls Enigma”. Opposite party-1 and Athena Infrastructure Ltd launched a project “Indiabulls Enigma” in the year 2012 and made wide publicity of its amenities and facilities.  One Vipul Bansal (predecessor in interest of the complainants) booked a flat and deposited the booking amount of Rs.500000/- on 22.02.2012.  Thereafter, he again deposited the booking amount of Rs.644570/- on 18.04.2012 and Rs.173715/- on 13.06.2012. Athena Infrastructure Ltd. allotted him Unit No.D142, super area 3400 sq.ft., BSP Rs.16880000/- and executed Flat Buyer’s Agreement in favour of Vipul Bansal on 05.07.2012. The complainants purchased Unit No.142 from Vipul Bansal on 14.06.2012 and from14.06.2012 the complainants were depositing the instalments of the consideration. From 2013, Varali Properties Limited (opposite party-1) undertook development, construction and sale of the unit of the said project, who executed a fresh Flat Buyer Agreement in favour of the complainants on 07.08.2013.  Annexue-1 of this agreement, contained payment plan as “construction linked payment plan”. Clause 21 of the agreement provides two years period for completion of the construction from the date of execution of Flat Buyers Agreement with grace period of six months. As per demand of the opposite parties the complainants as well as Vipul Bansal made the following payments:-

4.      Although Rs.18208443/- was realised till 26.05.2016, out of BSP  Rs.16880000/- and due date of possession including the grace period expired on 07.02.2016, but the opposite parties did not offer the possession on the due date. Opposite paty-1 raised a demand of Rs.464200/- vide e-mail dated 28.01.2016 in the name of Haryana VAT and also gave a warning in case the amount was not deposited within 30 days, then penal interest of Rs.24% p.a. would be charged.  The complainants deposited the aforesaid amount under protest. The opposite parties informed that contingent VAT has been revised from 2.75% to 1.5% by Haryana Government. On receiving this information,  the complainants requested to refund excessive amount Rs.186835/- vide e-mail dated 01.03.2017. However, the opposite parties did not refund that amount. The opposite parties vide e-mail dated 09.10.2018 informed that they have obtained “occupation certificate”. The complainants vide e-mail dated 11.10.2018 inquired from the opposite parties about the date of offer of possession, but the complainants did not get any information. The due date of possession has already expired on 07.02.2018, therefore, this complaint has been filed for above relieves on 26.10.2018.

5.      The opposite parties filed its written reply on 04.11.2019 in which the material fact i.e. allotment application moved by Vipul Bansal and deposits made by him and allotment of Flat No.D142, super area 3400 sq.ft. to Vipul Bansal and transferred of said unit to the complainants on 14.06.2012. The development work was undertaken by Varali Properties Ltd. in the year 2013 who executed Flat Buyers’ Agreement dated 07.08.2013 in favour of the complainants and deposits made by the complainants have not been disputed. The opposite parties stated that the construction was completed and the opposite parties have applied for issue of occupation certificate. The opposite party vide letter dated 31.10.2019 offered possession to the complainants. Along with letter dated 31.10.2019, the final statement of account has been supplied to the complainants in which delayed compensation of Rs.254942/- has been adjusted and Rs.1259264/- which was balance amount has been demanded. The complainants however, did not turn up for settlement of the account nor took possession. There was no deficiency in service on the part of the opposite parties. The preliminary objections that (i) the complainants are not consumer, (ii) the dispute between the parties is in respect of interpretation of terms of the contract and this Commission has no jurisdiction to change the terms of the contract and (iii) after enactment of Real Estate (Regulation and Development) Act 2016 Haryana Government has notified RERA authority, the complainants may be relegated to go before the RERA Authority for redressing their grievance, have also been raised.

6.      The complainants filed Rejoinder-reply and Affidavit of Evidence of Smt.Tejinder Kaur Atwal and Affidavit of Evidence of Tejinder Singh Atwal. The opposite parties have filed Affidavit of Evidence of Sushil Singh and later on the opposite parties filed copy of conveyance deed dated 05.04.2022 executed between the parties in respect of Unit No.D142, “Indiabulls Enigma” and it has been informed that after execution of conveyance deed the complainants have taken possession on 26.05.2022. Both the parties have filed their short synopsis of arguments.

7.      We have considered the arguments of counsel for the parties and examined the record. The counsel for the opposite parties states that after execution of conveyance deed dated 04.05.2022 and taking possession on 26.05.2022 no dispute remains pending between the parties. The complaint is liable to be dismissed.

8.      A perusal of conveyance deed dated 04.05.2022 as well as possession letter dated 26.05.2022 do not indicate that the complainants have withdrawn their claims in the complaint. Only relief of possession has become infructuous. So far as relief for delayed compensation as well as refund of Rs.186835/- realised in excess of Haryana VAT are still there.

9.      As per Clause 21 of the Flat Buyers’ Agreement dated 07.08.2013, due date of possession was 07.02.2016 and possession was offered on 31.10.2019.  As such there was a delay in offering of possession. Supreme Court in Wg. Camdr. Arifur Rahman Khan Vs. DLF Southern Theme Pvt. Ltd. (2020) 16 SCC 512, held that the home buyers are entitled delayed possession in the form of interest @6% per annum on their deposits for the delayed period, therefore the complainants are entitled for delayed compensation in the form of interest @6% p.a. on their deposits from 07.02.2016 till 30.10.2019. 

10.    The complainants have stated through demand dated 28.01.2016, the opposite parties realised Rs.464200/- in the name of Haryana contingencies VAT. Later on contingent VAT has been revised from 2.75% to 1.5%, therefore, Rs.186835/- has been realised from the complainants in excess. The complainants asked on 01.03.2017 to return the above amount, but the opposite parties did not respond. The opposite parties have not challenged this allegation; therefore, the opposite party-1 is liable to refund the above amount.

ORDER

          The complaint is partly allowed.  Opposite party-1 is directed to pay delayed compensation in the form of interest @6% p.a. on the deposits of the complainants from 07.02.2016 till 30.10.2019 and thereafter, opposite party-1 will pay interest @9% per annum from November, 2019 on the above amount till the date of payment of this amount. Opposite party-1 will refund Rs.186835/- with interest @ 9% p.a. from 29.02.2016 till the date of payment. These directions will be complied with within a period of two months from the date of this judgment.