1.      Heard Mr. Joel, Advocate, for the complainants, Mr. Aditya Narain, Advocate for opposite party-1, Mr. Pragalbh Bhardwaj, Advocate for opposite party-3 and Mr. Sanjay Kumar, Advocate for opposite party-4. Opposite party-2 was proceeded ex-parte, vide order dated 17.05.2018.

2.      Rana Vikram Anand and Divya Anand have filed above complaint, for directing the opposite parties to (a) pay damages to the tune of Rs.8 lacs for mental agony and deficiency in the quality of the flat and specifications thereof; (b) deliver possession of the flat ; (c) pay an amount of Rs.14115858/- as compensation for delay in handing over the possession of the flat; (d) refund the amount of Rs.6 lacs charged for car parking (e) pay an amount of Rs.11 lacs on account of appreciation in the price of the land; (f) reimburse an amount of Rs.24 lacs paid by the complainants towards rent @ Rs.30000/- per month from March, 2011; and (g) any other orders which may be deemed fit and proper in the interest of justice.

3.      The complainants stated that they are husband and wife. Opposite party-1 is a public limited company. Opposite party-2 is an associate company of opposite party-1 and owner of part of the land of the project. Similarly, opposite party-3 is also owner of portion of the project land. They booked an apartment with opposite party-1 by depositing an amount of Rs.10 lacs, vide application dated 12.10.2007. Under Clause 21 of the application form it is mentioned that possession of the flat would be handed over within 36 months with a grace period of 12 months. They were allotted flat No. G-706 measuring 4600 sq. ft. in Premier Terraces at Palm Drive, EMAAR MGF Land Ltd., Sector-66, Gurgaon, Haryana, vide allotment letter dated 12.10.2007. The complainants were also charged Rs.6 lacs towards two car parking slots. Builder buyer agreement was executed between the parties on 12.02.2008 and consideration of the flat was fixed at Rs.10736675/-, which was to be paid as per construction linked plan. The complainants took a housing loan from the opposite party-4 Bank for which a tripartite agreement was executed on 02.01.2008. The complainants made the payments as per schedule for which opposite party-1 also granted a rebate of 5% of the total sale consideration which was to be adjusted in the final payment. Opposite party-1 failed to complete the construction and handover the possession despite expiry of the stipulated period. The complainants made various communications with the opposite parties but of no avail. The complainants paid a total amount of Rs.9987160/- but they have not received the possession of the flat. Then the complainants filed the instant complaint on 24.01.2018.

4.      The opposite party-1 contested the complaint by filing the written statement on 26.04.2018. As per agreement possession was to be handed over by December, 2010, subject to force majeure. The complainants defaulted in making the timely payments on more than one occasion and Rs.82721/- were also charged from the complainants for default in the payment. Opposite party-1 has offered the possession vide letter dated 06.03.2018 after obtaining completion certificate and completing all amenities as per agreement. The petitioners were asked to make balance payment of Rs.2951509/- by 23.03.2018 and take possession of the flat. Rebate of 5% was available to all those customers who have made timely payments as per schedule. The complainants being defaulters are not entitled for any rebate. Opposite party-1 is not liable to pay any compensation to the complainants and the complaint deserves to be dismissed.

5.      Opposite party-3 filed its separate reply stating that under clauses 5 & 6 of the agreement dated 18.03.2006, the entire responsibility of construction and development of the project was of opposite party-1 and not opposite party-3. All considerations have been received by opposite party-1 and not by opposite party-3.  Opposite party-3 is owner of part of the land on which the project has been developed. Opposite party-3 is only a confirming party to the agreement and not even a party to the tripartite agreement. As no cause of action has arisen against opposite party-3 there is no question of any deficiency in service on its part. The opposite party-3 has no role to play regarding construction of the flat. The complaint qua opposite party-3 is liable to be dismissed.

6.      Opposite party-4 filed its written reply on 16.04.2018 stating that the complainants approached it for availing the housing loan facility. Earlier the complainants had taken housing loan from ICICI Bank and after closure of the loan the title documents were submitted by the complainants with OP-4 and a loan of Rs.7940000/- was sanctioned to the complainants on 31.05.2012 which was payable in 229 monthly instalments of Rs.80624/-. An amount of Rs.1207837/- is still payable by the complainants. The complainants have not sought any relief against OP-4 and the dispute is between the complainants and opposite parties-1 to 3. Therefore, the complaint qua OP-4 is liable to be dismissed.

7.      The complainants did not file the rejoinder. However, the complainants filed Affidavit of Evidence of Rana Vikram Anand. Opposite party-1 filed Affidavit of Evidence of Shipra Saboo. Opposite party-3 filed Affidavit of Evidence of Pradeep Garg. Counsel for the complainants also filed the written arguments.   

8.      We have considered the arguments of the counsel for the parties and examined the record.

9.      Regarding liability of the opposite parties, the agreement to sale was signed between the complainants and opposite party-1. Allotment was also made by opposite party-1 and the complainants have made the payments to opposite party-1. Even offer of possession has also been issued by opposite party-1. All these facts have not been disputed by opposite party-1. Therefore, opposite party-1 is the main contesting party. Regarding delay in delivery of possession, opposite party-1 admitted in the written statement that the possession was to be handed over in December, 2010. However, after obtaining the completion certificate, OP-1 issued offer of possession on 06.03.2018. Admittedly, there is a delay of more than seven years in offer of possession. Opposite party-1 took plea of force majeure but has not adduced any evidence to prove that the construction was ever stopped by any force majeure reason. So far as delay in payment of two instalments is concerned, OP-1 has already charged penal interest for delay and it cannot be taken as force majeure. The complainants alleged that the opposite parties were not entitled to charge additional amount of Rs.6/- lacs for car parking. Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that if the builder is providing covered parking space then it is entitled to charge for it. Therefore, the complainants is not entitled for refund of Rs.6 lacs paid for car parking. Regarding damages of Rs.8/- lacs for mental agony; and Rs.24/- lacs paid towards rent,  Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318 held that the compensation cannot be awarded in multiple heads. In regard to deficiency in the construction quality of the flat, the complainants have not produced any evidence nor has he filed any application for appointment of an expert. Therefore, the allegation of deficiency in construction quality of the flat, is rejected. The complainants are entitled for delay compensation in the form of interest @ 6% p.a. on the amount deposited by him, from the due date of possession till the offer of possession in view of the judgment of Supreme Court in Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Pvt. Ltd. Vs. Capital Greens Flat Buyers Association, (2021) 5 SCC 537.

O R D E R

          In view of above discussions, the complaint qua opposite parties-2 to 4 is dismissed. Complaint against opposite party-1 is partly allowed. The opposite party-1 is directed to pay delay compensation in the form of interest @6% per annum on the deposit of the complainants from the due date of possession till the offer of possession i.e. from 01.01.2011 till 06.03.2018. After adjusting delay compensation, if any amount remained to be paid by the complainants, opposite party-1 will charge interest @9% per annum on it. After settlement of account within a period of one month, opposite party-1 will hand over the possession of the flat and execute conveyance deed in favour of the complainants without any further delay.