DR.INDER JIT SINGH, MEMBER

1.   The present Consumer Complaint (CC) has been filed by the Complainant against the opposite party as detailed above, inter aila praying for (i) refund of Rs.1,39,61,179/- paid by the complainant to the opposite party alongwith interest @18% p.a., (ii) Rs.10,00,000/- as compensation on account of mental agony and harassment and  (iii) to pay Rs.1,00,000/-  towards cost of proceedings etc. 

2.       Notice was issued to the opposite party on 10.07.2019 giving them 30 days’ time to file their written statement.

3.       It is averred/stated in the complaint that:-

i)        That the complainant booked a flat on 27.12.2012 in the residential Project launched by the OP in the name of “Imperial Gardens” in Sector-102, Gurgaon and was allotted flat No. Unit IG-05-0702, on the 7^th Floor with a Super Area 2000 sq.ft. A provisional allotment letter dated 27.02.2013 was issued.  Buyer’s agreement dated 05.04.2013 was entered between the parties.  The total consideration for the flat was Rs.1,46,546,77/-, out of which, the complainants paid Rs.1,39,61,179/-  till July 2019. The OP was liable to handover the possession of the unit within 42 months from the date of start of construction with a grace period of three months, i.e. by 16.08.2017.

ii)       After having paid almost 95% of the total cost of the flat, the OP failed to hand over the possession within the stipulated period.  The complainant took loan from HDFC Bank.  The Bank paid a sum of Rs.1,08,21,227/- to the OP on which interest has been paid by the complainant. The complainant sent a legal notice dated 07.06.2019 to the OP.

iii)      As the OP failed to deliver the possession, the complainant instituted appropriate proceedings before the RERA court, Haryana and as the Adjudication officer is not legally permitted to award compensation therefore, the complainant with liberty withdrawn the said complaint and filed complaint before this Commission.

4.       OP in their written statement/reply while admitting the basic facts regarding allocation of the unit, signing of the agreement, total consideration, amount paid by the complainant, committed date of possession, delay in possession etc., stated that :-

1. Complaint is not maintainable as the parties are bound by the agreed clauses of contract, the Complainant is not consumer having bought it for investment/commercial/speculative purposes, the complaint be dismissed on the ground of limitation, 

2. The possession was offered with a delay i.e. on 20.11.2019. The delay was on account of the reasons beyond the control of the OP i.e., delay and latches on part of the construction Contractor as also the delay in receipt of Occupancy Certificate which was issued by the competent authority after a delay of approximately after 8 months from its application. In case of delay, compensation is payable as per provisions of the Agreement.

5.       Evidence by way of affidavit was filed by the complainant on 07.07.2021 and affidavit of evidence was filed by the OP on 24.09.2021 broadly on the lines of averments made in the complaint.

6.       Heard counsels of both sides. The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-

7.       The objection that the Complaint is barred by limitation is also not accepted. The OPs have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for commercial/investment purpose is also rejected as no such evidence has been adduced by the OPs in this regard. The plea of OPs that delay was due to delay on the part of contractor and beyond his control is not valid as even after a gap of more than five years from the committed date given in the agreement, possession of flat has not been given.  The contention of the OPs that the parties are bound by the agreement is also not acceptable.

8.       In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. The complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present circumstances has a legitimate right to claim refund alongwith fair delay compensation/interest from the OP The plea of OP for entitlement of compensation to the complainant in accordance with provisions of the agreement is not valid.

9.       For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i)      The OP shall refund the entire principal amount of Rs.1,39,61,179/- (Rupees one crore thirty nine lakh sixty one thousand one hundred seventy nine only) to the complainant, alongwith compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

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

(iii)     The payment in terms of this order shall be paid within three months from today.

(iv)     In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.  The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

10.     The pending IAs, if any, also stand disposed off.