1. The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-

1. To refund the entire principal amount of Rs.92,79,977/- deposited by the complainants along with interest @24% per annum from the respective date of payment.
2. Grant compensation amounting to Rs.2,00,000/- on account of mental agony, deficiency in service and harassment.

3. Grant compensation for litigation expenses amounting to Rs.2,00,000/-.

2. Notice was issued to the OP.  Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table- A.

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

1. The Complainants entered into a Buyer's Agreement with the Opposite Party on 29.05.2013, complainants were allotted the flat bearing Unit No. GGN-16-0401 at 4th floor in tower/Building no. 16 having a Super Area of 153.29 sq. mtrs. (1650 sq. ft.) (approx.) in the project named "Gurgaon Greens", Sector-102, Gurgaon, Haryana.  Total consideration of Flat is Rs.1,16,78,900/-.

2. In accordance with Clause 14(a) of the Agreement, the Opposite Party was required to offer the possession of the Flat to the Complainants within a period of 36 months from the date of start of construction. Further, the Opposite Party was entitled to a grace period of 5 months for obtaining the completion certificate/ occupation certificate. However, till date no possession has been offered to the Complainants even though the due date for offering the possession of the Flat was 29.10.2016, which clearly establishes the deficiency in service on the part of the Opposite Party within the meaning of Section 2(g) of the Act.

3. The complainants have paid all the dues in respect of the Flat to the Opposite Party in a timely manner as per the demands raised by the Opposite Party with reference to the Payment Plan provided in the Annexure-III of the Buyer’s Agreement.  

4. The complainants have taken a home loan amounting to Rs.75,00,000/- at floating rate of interest from the State Bank of India towards the purchase of the Flat and are regularly paying EMI of Rs.86,002/-.  Complainants are suffering from extreme financial burden on account of delay in offering possession of flat.

5. With no alternative in sight, the complainants served a Legal Notice dated 09.05.2017 to the Opposite Party demanding termination of the Buyer’s Agreement and a refund of the amount paid so far along with an interest @24% per annum from the respective date of payment.  

6. Opposite Party addressed an email dated 22.05.2017 to the complainants stating that they anticipate to initiate the offering of the possession of the Flat in August 2018 which clearly establishes a delay of 22 months.  Further, it is stated by the opposite party in the abovementioned email that if the complainants seek cancellation of the aforesaid unit, an approximate 15% of the total sales consideration (i.e. Earnest Money) will be forfeited alongwith other charges, such as delayed payment charges, brokerages, and the balance shall be refundable after the necessary adjustments.

4. The OP in their written statement/reply stated that: -

1. Clause 14 merely provides that, subject to terms of this clause, and subject to the Complainants not being in default of any provisions of this Agreement, the Opposite Party proposes to hand over the possession of the Apartment to the Complainants within a period of 36 months from the date of start of construction with 5 months as grace period. Clause 14 also contemplates delay in delivery of possession for any Force Majeure event, as provided under clause 31, or for any other reason beyond the control of the Opposite Party. Clause 16 further provides that the Opposite Party shall be liable to pay a penalty at the rate of Rs. 7.50/- per sq feet per month for any such delay, subject to the Complainants making timely payments and complying with all the terms and conditions of the Buyer's Agreement dated 29.05.2013.

2. Complainants have defaulted in making timely payments as per the Construction Linked Payment Plan opted by them and Rs. 52,463/- has been levied as delayed payment charge on the Complainants.

3. Time for Delivery of Possession is not the essence of the contract. 

5. Complainants in their rejoinder stated that: -

Complainants had booked the Flat for the residential purpose of their family.  Relying on judgments of this Commission in Kavita Ahuja Vs. Shipra Estates Ltd., CC 137 of 2010 decided on 12.02.2015, the complainants stated that they fulfil the definition of consumers under the Act.  Complainants also reiterated that they had made timely payments.  They stated that the Statement of Accounts as on 11.03.2017, issued by the OP shows that nothing is due from the Complainants and rather Rs.30,955/- have been excess collected by the OP. The complainants have taken Home Loan from the State Bank of India and the complainants only are responsible for repayment of the loan.  The State Bank of India has nothing to do with the present complaint.

6. Heard counsels of both sides. 

7.  The committed date of possession as per BBA, with grace period was 29.10.2016.  OC was obtained by OP on 05.09.2018 and possession was offered on 10.05.2019. 2½ years delay is admitted by the OP.  During the arguments OP stated that if refund is ordered, a reasonable interest only may be granted.  Complainants sought refund after the committed date, but before the offer of possession.  Complainants further stated that after seeking refund, they did not make any further payments.  Complainants relied on certain judgments of the Hon’ble Supreme Court as well as of this Commission. 

8. The contention of OP that this Commission lacks territorial jurisdiction is not valid, the Commission has the nationwide jurisdiction. The contention that complainants are not the consumers as they have purchased the unit for commercial purpose is also rejected as no such evidence has been adduced by the OP in this regard. It has been observed by this Commission in various cases (Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. The contention of the OP that the parties are bound by the agreement is also not acceptable. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan  (2019) 5 SCC 725, Hon’ble Supreme Court also observed that “a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”

9. In the instant case, there is a delay of 2½ years in handing over the possession of flat by the OP. No valid grounds for delay have been given by the OP. The complainants cannot be made to wait for an indefinite time and suffer financially. Hence, the complainants in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.

10. 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.92,79,977/- (Rupees ninety two lakh seventy nine thousand nine hundred seventy seven 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(s) 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)  The complainants have taken loan from Bank(s)/other financial institution(s). If 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 complainants.  The complainant(s) 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.

11. The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.