1.      Heard Mr. Vipin Kumar Yadav, Advocate, for the complainant and Mr. Pratap Shankar, Advocate, for the opposite party.

2.      Parvesh Malhotra has filed above complaint for directing the opposite party to (i) refund Rs.57459805/- with interest @24% compounded monthly from the date of respective deposit till its realization; (ii) pay Rs.5000000/-, as compensation for mental agony and harassment; (iii) pay Rs.200000/- as the litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainant stated that the opposite party was a company, 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 party launched a group housing project, in the name of “Marbella” at village Maidawas, Sectors-65 & 66, Gurgaon, in the year 2011 and made wide publicity of its facilities and amenities. The complainant booked Villa No. MAR-MD-014, admeasuring 350 sq.yds, built up area of 6520 sq.ft., total consideration of Rs.57459805/- on 07.10.2011 and deposited booking amount of Rs.3000000/-. As per demand of the opposite party, the complainant deposited Rs.5240490.84/- on 18.11.2011. The opposite party executed Buyer’s Agreement in favour of the complainant on 18.11.2011. Annexure-3 of the agreement provides payment plan as “construction link payment plan”. Clause-10(a) provides 30 months period from ‘commencement of development work’ with grace period of 3 months, as due date of possession. The complainant deposited Rs4945545/- on 26.11.2011, Rs4945545/- on 27.12.2011 and Rs.5521243/- on 07.04.2012, which was for the instalment of “On start of site infrastructure development”. The complainant deposited all the instalments on time and total Rs.54447634/- was deposited till 05.09.2016. The period of 33 months expired on 06.01.2015. The complainant used to inquire about expected date of possession from the office of the opposite party. Then the opposite party used to give some tentative date. The complainant visited the site and found that the Villa was far away from completion. The complainant gave a legal notice dated 17.11.2017, for refund of his money with interest. In spite of service of the legal notice, the opposite party did not respond. Then this complaint was filed on 17.12.2017, alleging deficiency in service.

4.      The opposite party filed written reply on 12.12.2018, in which, booking of the Villa on 07.10.2011, execution of Buyer’s Agreement dated 18.11.2011 and deposits made by the complainant, have not been denied. The opposite party 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-26 of the agreement. The opposite party completed construction of the Villa allotted to the complainant and obtained “occupation certificate”. Thereafter, the opposite party offered possession to the complainant vide letter dated 15.01.2018. As per agreement between the parties, the opposite party has completed construction of the Villa and obtained “occupation certificate”. At this stage, the complainant is under obligation to take possession after depositing balance amount. Preliminary issues that the complaint is time barred, the complainant is not a consumer and exorbitant claim has been made, are also taken. There was no deficiency in service.

5.      The complainant has filed Rejoinder Reply, Affidavit of Evidence, of Parvesh Malhotra 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.      We have considered the arguments of the counsel for the parties and examined the record. Clause-10(a) of the agreement provides 30 months period from ‘commencement of development work’ with grace period of 3 months, as due date of possession. The opposite party realized the instalment of “On start of site infrastructure development” on 07.04.2012. The period of 33 months expired in 06.01.2015. A perusal of statement of account of the complainant as maintained by the opposite party shows that the complainant deposited all the instalments on time and total Rs.54447634/- was deposited till 05.09.2016. Instalment dated 05.09.2016 was related to “on laying of internal marble flooring”. The opposite party offered possession to the complainant vide letter dated 15.01.2018. Thus there was more than three years delay. 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.

7.      The opposite party stated that the project consisting of Villa was started in October, 2013. However, many buyers have committed default in timely payment of instalments. As such due to paucity of the fund, the work proceeded slowly. No evidence in this respect has been filed. As such, allegations in this respect are not liable to be accepted. On the other hand, the opposite party realized instalment of “On start of site infrastructure development” on 07.04.2012. The Villa booked by the complainant was an independent builing. If the opposite party realized the instalments of different level of construction, then there could be no excuse for saying that the construction was delayed due to paucity of fund or the contractor had delayed the construction of the project.

8.      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. In Abhishek Khanna’s case due date of possession was 27.11.2018 and possession was offered on 28.06.2019 as such, there was no unreasonable delay. In the present case, delay is more than three years.        

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.