PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER

1.      Heard Ms. Priya, Advocate, for the complainants and Mr. Manish Misra, Advocate, for the opposite parties.

2.      Mr. Sachin Kinra and Mrs. Monika Kinra have filed above complaint, for directing the opposite parties to (i) refund Rs.2256183/- 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.150000/-, as litigation costs; (iv) any other relief which is deemed fit and proper in the facts of the case.

3.      The complainants stated that M/s. BPTP Limited and Countywide Promoters Private Limited (the OPs) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The OPs launched a group housing project, in the name of “Astaire Gardens” at village Palra, Sector-70-A, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. The advertisement mentioned that the project will be a luxurious township over 100 acres of land and 70% of the township will have landscaped green and open areas as well as large central green lawns, the facilities of an ultra-luxurious club and other amenities including 100% power back up, 24X7 security and connected to NH-8 with a 24 meter wide approach road. The project will feature educational centres, health care facilities and all modern amenities to ensure absolute comfort for its residents. Believing upon the representations of the OPs, the complainants booked a flat and deposited the booking amount of Rs.500000/- on 25.09.2014. The OPs vide Allotment Letter dated 20.10.2014, allotted Unit No.C-186-SF, admeasuring 1390 sq.ft., cost of Rs.907099500/- and executed Floor Buyer’s Agreement on 22.12.2014, in their favour. Annexure-C of the agreement contained payment plan under which 40% BSP + 100% development charge and recreational facilities registration charge were payable within 180 days of booking and balance amount was payable on offer of possession. The complainants deposited Rs.1174671/- on 11.11.2014 and Rs.581512/- on 24.12.2014. The complainants applied for home loan from HDFC Bank, who sanctioned loan of Rs.6855371/- but due non-compliance of rules and regulations of HDFC Bank by the OPs, disbursement of loan was withheld. Clause-2.2 of the agreement provides 18 months from the date of execution of the agreement as ‘commitment period’ for offer of possession and clause-2.18 provides 180 days as ‘grace period’. Due date of possession including grace period expired in December, 2016. The OPs, vide letter dated 28.09.2017, offered possession and raised demand of Rs.9742029.83 to be deposited till 28.10.2017. In the final demand super area has been increased from 1390 sq.ft to 1448 sq.ft. Although there was delay in offer of possession but no compensation was paid. From the photographs of the site as uploaded on the website of the OPs, it was apparent that the construction was not complete and the amenities such as club house with indoor heated pool, outdoor pool and kids pool were still not constructed at the time of offer of possession. The OPs were deceitful, fraudulent and malicious in their approach from very beginning inasmuch as they gave toll promises but without completing the promised amenities and facilities, letter dated 28.09.2017 was issued to extract money which amounts to unfair trade practice. The agreement was one sided and contained arbitrary clauses and terms and conditions are onerous. The complainants invested their life time saving in the hope of home but it has been frustrated. Then this complaint was filed on 19.12.2017, alleging deficiency in service.        

4.      The opposite parties filed its written reply on 02.07.2020, 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 OPs stated that clause-5.1, read with Clause-2.2 and Clause-2.18 of the agreement provides 36 months period from the date of execution of the agreement, as ‘commitment period’ for delivery of possession, subject to force majeure and fulfilling the obligations of the buyer. The period of 36 months was completed in December, 2016. The OPs completed construction, obtained ‘occupation certificate’ on 19.09.2017 and offered possession on 28.09.2017 and gave reminder vide letter dated 09.04.2018. The complainants booked the unit through “Pioneer Medialine Services Pvt. Ltd.” a real estate broker and were given an inaugural discount of Rs.319652/-. HDFC bank required for deposit of 25% of the cost of the flat for disbursement of loan. 20% of the deposit made by the complainants was ‘earnest money’ as such the OPs through email dated 30.12.2014, asked the complainant to complete payment of 25% but they did not make any payment. The complainants did not make payment as per payment plant, for which, the OPs gave email dated 20.02.2015. In spite of final demand, the complainants failed to deposit balance amount as such allotment was cancelled vide letter dated 16.06.2015. On the request of the complainants, the OPs through email dated 14.02.2017, revoked the cancellation of the booking but even then balance payment was not made. It has been denied that the construction was incomplete on the date of issue of offer of possession letter. Entire construction is complete and club related facilities are functional. Large number of the allottees got the sale deed executed and took possession The agreement provides for arbitration in case of any dispute and the complaint is not maintainable. The complainants owned their house i.e. House No. C-1/23, West Enclave, Pitampura, Delhi and are real estate investors, as prices have gone down therefore they are not taking possession and want refund of their money with exorbitant interest @18% per annum. The complaint is liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavits of Evidence of Sachin Kinra and Mrs. Monika Kinra and documentary evidence. The OPs filed Affidavit of Evidence of Inderjeet Singh and documentary evidence. Both the parties have filed written synopsis.   

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, modifying interest @9% p.a. 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, the date of agreement was 25.10.2012, as such this judgment has no application as in present case, the agreement was executed on 22.12.2014. Clause-5.1, read with Clause-2.2 and Clause-2.18 of the agreement provides 36 months period from the date of execution of the agreement, as ‘commitment period’ for delivery of possession, subject to force majeure and fulfilling the obligations of the buyer. The period of 36 months was completed in December, 2016. The OPs completed construction, obtained ‘occupation certificate’ on 19.09.2017 and offered possession on 28.09.2017. Prior to offer of possession, the complainants never opted for refund of their money.  

8.      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 complainant never asked for refund of his money. So far as objection to the increase in super area is concerned, there is 2.73% increase in area. In clause-2.13 and clause-3.4 of the agreement, the complainant has agreed to make payment of increased area.    

9.      So far as the allegation that due to non-cooperation with the terms and condition of HDFC Bank, loan was not disbursed to the complainant is concerned, Annexure-C of the agreement contained payment plan under which 40% BSP + 100% development charge and recreational facilities registration charge were payable within 180 days of booking and balance amount was payable on offer of possession. The complainant made total payment of Rs.2256183/- till 24.12.2014. HDFC bank required for deposit of 25% of the cost of the flat for disbursement of loan. 20% of the deposit made by the complainants was ‘earnest money’ as such the OPs through email dated 30.12.2014, asked the complainant to complete payment of 25% but they did not make any payment. The complainants did not make payment as per payment plant, for which, the OPs gave email dated 20.02.2015. The complainants were defaulter from very beginning.

10.    In case, after offer of possession, the complainants deny to take possession, then his allotment is liable to be cancelled and earnest money is liable to be forfeited under clause-8 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 Kailash Nath Associates Vs. Delhi Transport Authority, (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 opposite parties are directed 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.