1.      Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. Pragyan Pradip Sharma, Advocate, for the opposite parties.

2.      Anupma Rastogi and Yatinder Pratap Singh have filed above complaint, for directing the opposite parties to (i) handover possession of the Unit allotted to them, complete in all respect with promised amenities and facilities and execute conveyance deed, within six months from filing of the complaint; (ii) in case, the opposite parties failed to deliver possession within six months, pay Rs.6000/- per day as compensation; (iii) pay delay compensation, in the form of interest @18% per annum on their deposit from the promised date of possession till handing over possession of the unit and common amenities and facilities; (iv) provide adequate car parking space to them and refund the amount collected in the head of car parking with interest @18% per annum; (v) provide an independent architect report in respect of ‘carpet area’ and ‘super area’; or in alternative (vi) refund Rs.11774458/- with interest @18% per annum, from the date of respective deposit till the date of refund; (vii) pay Rs.1000000/-, as compensation for mental agony and harassment; (viii) pay Rs.100000/-, as litigation costs; and (ix) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that M/s. BPTP Limited and Countywide Promoters Private Limited (the opposite parties) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite parties launched a group housing project, in the name of “Astaire Gardens” at village Palra, Sector-70-A, Gurgaon, in the year, 2012 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite parties, the complainants booked a flat and deposited booking amount of Rs.721630/- on 17.05.2012. The opposite parties issued Allotment Letter dated 25.05.2012 allotting Unit No.C-71-GF, built-up area 2512 sq.ft., total cost of Rs.12619588/- and executed Floor Buyer’s Agreement on 28.11.2012, in favour of the complainants. Annexure to the allotment letter contained payment plan as “construction link payment plan”. Clause-24 of the allotment letter provides 30 months period from the date of execution of the agreement with grace period of 180 days for delivery of possession. In order to make timely payment of the instalments, the complainants took a loan of Rs.7500000/- from Indiabulls on 21.11.2012, which was transferred to ICICI Bank on 22.12.2014. As per demand, the complainants deposited Rs.1641824/- on 01.08.2012, Rs.1345644/- on 25.10.2012, Rs.1406745.26 on 01.11.2012, Rs.2602543/- on 03.12.2012, Rs.15946.34 on 14.12.2012, Rs.886776/- on 26.12.2012, Rs.235725/- on 26.12.2012, Rs.220575/- on 07.01.2013, Rs.835309/- on 11.01.2013, Rs.180450/- on 21.01.2013, Rs.683120/- on 29.01.2013, Rs.185000/- on 09.12.2013, Rs.692053/- on 20.12.2013, Rs.108185/- on 03.04.2017, Rs.106745/- on 13.04.2017, Rs.539270/- on 01.07.2017, Rs.500000/- 01.07.2017. On above deposits, the opposite parties gave Rs.319304.88 as timely payment rebate. The opposite parties offered possession, vide letter dated 08.11.2017 and raised demand of Rs.3148157.61 + security of Rs.53369.96 for VAT, to be deposited till 08.12.2017. The opposite parties gave an email dated 09.11.2017 that in case payment is made on time then timely payment discount of Rs.105889.71 would be given. The complainants visited the site and found various deficiencies in construction, which was communicated through email dated 12.11.2017. The opposite parties issued payment reminder dated 22.11.2017. Then this complaint was filed on 07.12.2017, alleging deficiency in service.        

4.      The opposite parties have filed its written reply on 15.02.2018, in which, booking of the flat, allotment of the flat, execution of agreement and the deposits made by the complainants, have not been disputed. The opposite parties stated that clause-5.1 of the agreement provides 36 months period from the date of sanction of the building plan or execution of Floor Buyer’s Agreement, whichever is later as ‘commitment period’ for delivery of possession, subject to force majeure and fulfilling the obligations of the buyer with a grace period of 180 days. The opposite parties applied for sanction of building plan on 18.06.2012, which was sanctioned on 03.05.2013. The period of 36 months was completed on 02.05.2016 and grace period was completed on 02.11.2016. The opposite parties completed construction, obtained ‘occupation certificate’ on 19.09.2017 and offered possession on 08.11.2017. In final statement of account, delay compensation of Rs.401920/- was credited as per agreement. The complainants earlier made timely payment for which Rs.319304.88 was given as ‘timely payment discount’. The complainants paid instalment payable on 16.06.2017 on 01.07.2017 and did not pay final demand dated 08.11.2017, inspite of reminders dated 22.11.2017 and 04.01.2018. The opposite parties always updated the buyers about the construction status along with demand letters. In the allotment letter, the Terms and Conditions have been given as such it cannot be said that agreement was one sided. The complaint has been filed for possession, after offer of possession. It has been denied that the construction was incomplete. Entire construction is complete and club related facilities are functional. The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. The complaint has no merit and liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavits of Evidence of Anupma Rastogi and Yatinder Pratap Singh and documentary evidence. The opposite parties filed Affidavit of Evidence of Inderjeet Singh and documentary evidence. Both the parties have filed their written synopsis. The opposite parties filed photographs of entire project on 22.12.2022.   

6.      The counsel for the complainants relied upon the judgment of this Commission, passed in CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, dated 18.06.2020, arising out of same project, in which, direction for refund of entire amount with interest @10% per annum was issued due to inordinate delay in offer of possession. This judgment was affirmed with slight modification of interest in Civil Appeal No.1001-1002 of 2021, by judgment of Supreme Court dated 12.04.2021. He further relied upon judgment of Supreme Court in Ireo Private Limited Vs. Aloke Anand, 2022 SCC OnLine SC 106. The counsel for the opposite parties relied upon the judgment of a three member Bench of Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, in which, it has been held that if after obtaining ‘occupation certificate’ possession was offered then the buyer is obligated to take possession.    

7.      We have considered the arguments of the parties and examined the record. In CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, due date of possession was considered as 30 months from the date of agreement as per Clause-24 of the allotment letter, which is quoted below:-

“(24) The company shall make all efforts to handover possession of the Floor/Villa within 30 months from the date of execution of Floor/Villa Buyer’s Agreement, subject to certain limitations as may be provided in Buyer’s Agreement and timely compliance of the provisions of Buyer’s Agreement by the applicant. The applicant agrees and understands that the company shall be entitled to a grace period of 180 days over and above the period more particularly specified here-in-above, for finishing work and applying and obtaining necessary approvals in respect of the project.”  

8.      Clause-24 of the allotment letter was subject to limitation as may be provided in the Buyer’s Agreement. Clause-5.1 of Buyer’s Agreement provides 36 months period from the date of sanctioning of the building plan or execution of Floor Buyer’s Agreement, whichever is later as ‘commitment period’ for delivery of possession subject to force majeure and fulfilling the obligations of the buyer with a grace period of 180 days. Building plan was sanctioned on 03.05.2013. The period of 36 months was completed on 02.05.2016 and grace period was completed on 02.11.2016. The opposite parties obtained ‘occupation certificate’ on 19.09.2017 and offered possession on 08.11.2017. There was no unreasonable delay in offer of possession. We respectfully disagree with the judgment in CC/3580/2017, Sanjay Rastogi Vs. M/s. BPTP, inasmuch the term “subject to limitation as may be provided in the Buyer’s Agreement” of the allotment letter was escaped from notice, in that judgment. The Buyer’s Agreement provides 36 months period from the date of sanctioning of the building plan. There is no reason to ignore the contract between the parties.  

9.      Supreme Court in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that if after obtaining ‘occupation certificate’ possession was offered then the buyer is contractually obligated to take possession. Till offer of possession, the complainants never asked for refund of their money. In fact the complaint was filed for possession. Clause-5.3 of the agreement provides that under no circumstances, the purchaser shall seek and be entitled to the possession and registration of the conveyance deed of the floor in his favour prior to making payment as demanded and completion of all formalities within the period as mentioned in the notice of possession. In letter for possession dated 08.11.2017, the complainants were required to make payment and complete documentations till 08.12.2017 and thereafter possession would be handed over within 60 days. It is normal practice among the builder is that they used to do final finishing work after payment of last instalment. Deficiency in construction as pointed out in email dated 12.11.2017 were of the nature of finishing work. As such on this ground, final payment could not be withheld.    

10.    In case, after offer of possession, the complainants deny to take possession, then their allotment is liable to be cancelled and earnest money is liable to be forfeited under clause-7 of the agreement. Under clause-2.6 of the agreement ‘earnest money’ is 25% of total sale consideration. However, Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs.EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”.        

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The complainants are given liberty to give their option for taking possession or refund within one month from the date of this judgment. If the complainants opt for possession, the opposite parties shall issue a fresh statement of account, charging interest @9% per annum on balance amount after 09.12.2017 and give one month time for deposit of balance amount and completion of documentations. On deposit of balance amount and completion of documentation, the opposite parties shall handover possession of the flat, complete in all respect as per specification, without any delay.

If the complainants opt for refund, then the opposite parties shall refund entire amount deposited by the complainants with interest @9% per annum from date of respective deposit till the date of refund, after forfeiting of 10% of basic sale consideration, within a period of two months from the date of this judgement. It shall be open to the opposite parties to satisfy the loan of the bank and refund balance amount to the complainants.