1.      Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Praveen Bahadur, Advocate, for the opposite party. 

2.      Sandeep Goyal and Reena Ramchandra Telang have filed above complaint for directing the opposite party to (i) handover possession of Unit A-192, complete in all respect and with all promised amenities within six months from the date of filing of the complaint and pay delay compensation in the form of interest @12% per annum on their deposit from due date of possession till handing over possession, or in alternative  refund Rs.25782224/- with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.100000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that M/s. Athena Infrastructure Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The OP launched a group housing project in the name of “Indiabulls Enigma”, at village Pawala Khusrupur, Sector-110, Gurgaon, in the year, 2012 and made wide publicity of its amenities and facilities. The OP advertised that the project would be a residential revelation with acres of themed landscapes sprawling around the buildings creating a natural green buffer and sound barrier with thoughtfully conceived play areas at strategic locations throughout the property grounds. The project offered refreshing cross-ventilation and large ribbons of pure, natural sunlight. The project was to consist of luxurious apartments, penthouses and duplexes boasting of eco-friendly architecture with a full feature club, jogging tracks, tennis courts, kid play area, ample security including CCTV cameras, sensor boards and automated barriers with ample green spaces including themes landscaped garden, vast green spaces and water bodies. The project also boasted of liberal use of exotic imported marbles, teakwood frames, dazzling sculptures, artefacts, chandeliers’ and advanced mechanical and electrical systems in every home at the project. Believing upon the representations of the OP, the complainants booked Unit No.A-192, saleable are 3400 sq.ft., a 4BHK + SQ and deposited Rs.500000/- on 06.12.2012. Clause-21 of booking application provided that the OP shall endeavour to complete the construction within 3 years from the date of the agreement. The OP issued Allotment Letter dated 29.12.2012 of Unit No.A-192, area 3400 sq.ft. The complainants opted for subvention scheme and took loan of Rs.21513328/- from Indiabulls Housing Finance Limited, which was directly disbursed to the OP on 26.03.2013. The OP executed Flat Buyer’s Agreement (FBA) on 03.07.2014. Clause-21 of the FBA provides 36 months period for handing over possession with grace period of six months. When the complainants inquired about change of due date of possession, the OP vide email dated 05.07.2014, informed that possession would be handed over by end of 2015. The complainants paid total Rs.25782224/- by 08.03.2016. The OP, vide letter dated 07.06.2018, offered possession with demand of Rs.2516545/-. The OP, vide letter dated 02.08.2018, revised the demand for Rs.2350770/-. Then the complainants visited the site and found that construction of the flat was still incomplete and it was not in habitable condition. The complainants brought in notice of the OP about the deficiencies in construction. In spite of repeated follow up, the OP has not made good the deficiencies in construction. Then, this complaint was filed on 22.04.2019 alleging deficiency in service on the part of the OP.       

4.      The opposite party filed its written reply on 02.09.2019, in which, booking of the flat, allotment of the flat, execution of FBA and deposits made by the complainants, have not been disputed. The OP stated that the complainants booked the flat through a broker namely Favista Real Estate Pvt. Ltd. The OP completed the construction and applied for issue of “occupation certificate” on 21.11.2017, which was issued on 06.04.2018. Thereafter, the OP, vide letter dated 07.06.2018, offered possession to the complainants. The construction was completed within time allowed in the FBA and no delay compensation was payable. Instead of depositing balance amount and taking possession, the complainants filed this complaint. The complainants paid total Rs.4286896/-, while under tripartite agreement in subvention scheme, Indiabulls Housing Finance Limited advanced Rs.21513328/- on 26.03.2013. The OP paid Pre-EMI of total Rs.13043446/- till August, 2018. The complainants did not implead Indiabulls Housing Finance Limited in the complaint. Refund can be made to the complainants only after cancellation of the FBA and satisfaction of the loan of Indiabulls Housing Finance Limited, in whose favour, the flat has been mortgaged. The construction of the flat was complete as per specification. The complainants have claimed 18% interest, which shows that they are investors in real estate with speculation and not consumers. Haryana Real Estate Regulatory Authority (HRERA) has been notified under Real Estate (Development and Regulation) Act, 2016, which is a special enactment on the subject as such the complainants be relegated to go before HRERA. The complaint is liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavits of Evidence of Sandeep Goyal, Reena Ramchandra Telang and documentary evidence. The opposite party filed Affidavit of Evidence of Sushil Singh and documentary evidence. Both the parties have filed written synopsis.

6.      We have considered the arguments of the parties and examined the record. Clause-21 of booking application dated 06.12.2012 provides that the OP shall endeavour to complete the construction within 3 years from the date of the agreement. However, the OP unreasonably delayed execution of FBA, which was executed on 03.07.2014. Clause-21 of the FBA provides 36 months period for handing over possession with grace period of six months. This grace period of six months was unilaterally added. By that time, substantial amount was paid as such the complainants had no option but to sign it. The OP offered possession vide letter dated 07.06.2018 and modified the demand on 02.08.2018. Thus there was about 7 months delay in offer of possession as per FBA.      

7.      The complainants, however, did not make delay in offer of possession as an issue. The complainants stated that even on the date of offer of possession, construction of the flat was incomplete and in joint inspection 97 deficiencies in construction were noticed. Although 95% of basic sale price was paid but the OP did not care to remove the deficiencies in construction. The OP relied upon the judgment of Supreme Court in Ireo Grace Realtech Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241 and held submitted that if after obtaining “occupation certificate”, possession is offered then the home buyer is obligated to take possession under the agreement. The complainant relied upon judgment of this Commission in CC/3580/2017 Sanjay Rastogi Vs. M/s. BPTP Limited (decided on 18.06.2020) as affirmed by Supreme Court in Civil Appeal Nos. 1001-1002 of 2021 M/s. BPTP Limited Vs. Sanjay Rastogi (decided on 12.04.2021) and Ireao Private Limited Vs. Aloke Anand, 2022 SCC OnLine SC 106 and submitted that possession had to offered, after completion of the construction as per specification. As 97 deficiencies were noticed during joint inspection as such offer of possession was not in accordance with the FBA.     

8.      Due to delay and not offering possession after completing the construction as per specification, the complainants are entitled to claim refund. The counsel for the OP submitted that main relief in the complaint is for possession. However, as four years have expired after filing of the complaint and the OP failed to remove deficiencies in construction, as such, the counsel for the complainants pressed the alternative relief of refund as claimed. Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, in which, it has been held that alternative remedy can be pressed at the time of hearing.

9.      Admittedly the complainant opted for subvention plan, under which Indiabulls Housing Finance Limited advanced Rs.21513328/- on 26.03.2013 after execution of tripartite agreement and the complainants paid total Rs.4286896/-. The flat in dispute is mortgaged with Indiabulls Housing Finance Limited as such in order to get the mortgage redeemed, the debt of Indiabulls Housing Finance Limited has to be satisfied. The OP has paid Pre-EMI to Indiabulls Housing Finance Limited as such the OP is entitled to adjust this money as the complainants had not paid any interest on this amount during till August, 2018.   

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainants including money advanced by Indiabulls Housing Finance Limited with interest @9% per annum from the date of respective deposit till the date of refund, after adjusting Pre-EMI amount paid by the opposite party, within a period of two months from the date of this judgment. It shall be open to the opposite party to satisfy the loan of Indiabulls Housing Finance Limited, first and pay balance amount to the complainants.