1.      Heard Mr. Pawan Kumar Ray, Advocate, for the complainants and Mr. Rajeev Agarwal, Advocate, for the opposite parties.

2.      Sudhanshu Shekhar Priyadarshi and Smt. Anuradha Singh Priyadarshi have filed above complaint for directing the opposite party to (i) refund Rs.32587956/- with interest @18% per annum from the date of respective deposit till its realization; (ii) pay Rs.900000/-, as compensation for mental agony and harassment; (iii) pay Rs.3000000/-, as compensation for incurring additional financial expenses such as delayed interest, GST and rent; (iv) pay Rs.500000/- as the litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that the opposite parties were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite parties launched a group housing project, in the name of “The Palm Drive” at village Badshahpur, Golf Course Extension Road, Sectors-66, Gurgaon, in the year 2007 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainants booked a Premium Villa on 24.12.2007 and deposited booking amount of Rs.3000000/-. The opposite parties, vide allotment letter dated 23.01.2008, allotted Premium Villa No.111, admeasuring 4100 sq.ft., basic sale consideration of Rs.28003900/-. Subsequently, the opposite parties revised layout plan and allotted Villa No.6, which was not accepted by the complainants. Then the opposite parties allotted Villa No.3, built up area 5250 sq.ft. total consideration of Rs.35716780/-. The opposite party executed Buyer’s Agreement in favour of the complainants on 04.03.2009. Annexure-II of the agreement provides payment plan, under which 95% of consideration was payable in ten instalments within 24 months from the date of booking and 5% was payable on offer of possession. Clause-14(a) of the agreement provides due date for possession as December, 2010 with grace period of 90 days. Even after collecting substantial amount from the complainants, the opposite parties could not start construction till November, 2013. The opposite parties, therefore, converted payment plan as “construction link payment plan” in October, 2013. As per demand, the complainants deposited total Rs32587956/- till 01.08.2017. Due date of possession expired in March, 2011. The complainants booked the villa for the reason as the aged father of complainant-1 was suffering with ill-health and the complainants decided to live with him for his look after. The complainants did not have any residence in India as such they took an accommodation in Mumbai on the rent of Rs.500000/- per months for looking after his ill father, in 2013. Due to inordinate delay, the father of complainant-1 passed away and he could not see his own residence and also purpose of the complainants for purchasing villa was frustrated. Then complainants through and email dated 07.09.2017, requested the CEO of opposite party-1 to refund their money with interest but he did not respond. The complainants sent another email dated 18.09.2017 to Deputy Manager of opposite party for refund of their money with interest. The complainants then gave a legal notice dated 27.09.2017, for refund of his money with interest to opposite party-1. The opposite parties offered possession vide letter dated 15.03.2018, with demand of Rs.6332898/-. In final statement of account, the opposite party did not give any delay compensation rather charged interest of Rs.215896/-, for delay in payment of instalment. The complainants held a meeting with the opposite party, in which, they agreed to correct the statement of account. But opposite party-1, through email dated 27.12.2018, informed that in case, the complainants take possession then they will present the issue for payment of delay compensation to the management. Opposite party-1 again, vide email dated 11.01.2019, demanded Rs.7668212/- and asked to take possession “as is where is” basis. The complainants again through email dated 12.01.2019, requested for refund of their money with interest. Then opposite party-1, through email dated 15.01.2019, replied that lump sum amount of Rs.4.10 crores would be refunded in 4 equal quarterly instalments. Then this complaint was filed on 22.02.2019, alleging deficiency in service.

4.      The opposite parties filed written reply on 02.09.2019, in which, booking of the Villa on 24.12.2007, allotment of villa on 23.01.2008, execution of Buyer’s Agreement dated 04.03.2009 and deposits made by the complainants, have not been denied. The opposite parties stated that the project consisting of Villa was started in October, 2013. However, many buyers have committed default in timely payment of instalments. Due to paucity of the fund, the work proceeded slowly. The opposite party engaged M/s. IL & FS Engineering & Construction Limited as contractor for construction of the project, who had also created trouble and his contract had to be terminated and new contractor was engaged. Due to force majeure reasons, the construction was delayed. The opposite party was entitled for extension of period for completion under clause-31 of the agreement. Due to delay payment plan was changed as “construction link payment plan”. The complainants did not have any issue till August, 2017 and deposited instalment. The complainants, through legal notice dated 27.09.2017, sought for refund of his amount with interest @24% per annum on flimsy grounds. The opposite party-1 completed construction of the Villa and offered possession, vide letter dated 15.03.2018. The opposite party issued reminders dated 17.12.2018, 02.01.2019 and 17.01.2019. At this stage, the complainants raised issues of “Early Payment Rebate” and “Delay Compensation”. Opposite party-1, through email dated 27.12.2018, requested the complainants to take possession and their demand for delay compensation would be presented before the management for consideration. Opposite party-1, through email dated 15.01.2019, also offered for a lump sum amount of Rs.4.10 crores in 4 equal quarterly instalments. The complainants, through email dated 31.01.2019, informed that in case, delay compensation of Rs.40/- lakhs is given, then they would take possession. Opposite party-1 again, through email dated 19.02.2019, requested to take possession and settle other demands amicably. But instead of having any talks for settlement, this complaint was filed on 22.02.2019. Preliminary issues that the complainants are investor for speculative motive and not consumers and exorbitant claim has been made, are also taken.

5.      The complainants has filed Rejoinder Reply, Affidavit of Evidence, of Sudhanshu Sekhar Priyadarshi, Mrs. Anuradha Singh Priyadarshi and documentary evidence. The opposite party has filed Affidavit of Evidence of Rajendra Prasad and documentary evidence. Both the parties have filed written synopsis.

6.      The counsel for the opposite party, relying upon the judgment of Supreme Court in Ireo Grace Realtech Private Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, submitted that if after obtaining “occupation certificate” possession was offered then the buyer is under contractual obligation to take possession. He submitted that various communication between the parties, subsequent to the offer of possession vide letter dated 15.03.2018, show that there was no issue of delay between the parties. Relying upon the judgment of this Commission in CC/438/2019 Ramesh Malhotra Vs. MGF Land Limited (decided on 29.01.2020), he submitted that 42 months delay was not unreasonable. The complaint, filed raising issue of delay is liable to be dismissed.

7.      We have considered the arguments of the counsel for the parties and examined the record. Clause-14(a) of the agreement provides due date for possession as December, 2010 with grace period of 90 days. However, the construction was started in November, 2013 and payment plan was changed in October, 2013, as mentioned in statement of account. Along with offer of possession letter dated 15.03.2018, the opposite party-1 raised demand of Rs.8767970/-. Although the complainants, through legal notice dated 27.09.2017, sought for refund of his amount with interest @24% per annum but on offer of possession, the complainants made demand of “Early Payment Rebate” and “Delay Compensation”. Opposite party-1 again, vide email dated 21.12.2018, demanded Rs.9198593/-. Opposite party-1, vide email dated 27.12.2018, informed that in case, the complainants take possession then they will present their demand for delay compensation before the management. Opposite party-1 again, vide email dated 11.01.2019, demanded Rs.7668212/- and asked to take possession “as is where is” basis. In email dated 12.01.2019, opposite party-1 admitted that the complainants were entitled for Early Payment Rebate of Rs.1629085/- but stated that it has been already been adjusted. Clause-16 of the agreement provides for delay compensation. A perusal of statement of account shows that opposite party-1 had realised instalment of “casting roof of terrace” in February, 2014. There was delay of about 4 years in offer of possession. But instead of repeated request, the opposite parties did not correct final statement of account by giving Early Payment Rebate and delay compensation, till filing of the complaint rather offered to take refund of Rs.4.10 crores as full and final settlement. In such circumstances, the complainants are justified in seeking refund with interest. 

ORDER

ln view of aforesaid discussion complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant, with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.