1.      Heard Mr. Aditya Parolia, Advocate, for the complainant and Mr. Pragyan Pradeep Sharma, Advocate, for the opposite party. 

2.      Major Shiv Kumar Sharma has filed above complaint for directing the opposite party to (i) refund Rs.8578885.87/- 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; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M/s. BPTP 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 “Astaire Gardens”, at village Palra, Sector-70 & 70A, Gurgaon, in the year, 2012 and made wide publicity of its amenities and facilities. The OP advertised that the project would be in 100 acres of land, connected to NH-8 with a 24 metre wide approach road with facilities of ultra-luxurious club with gardens and all ultra-luxurious amenities, including 100% power back up, 24 X 7 security and like a self-contained township, Astaire Gardens will feature education centres, health care facilities and all modern amenities to ensure absolute comforts of the residents and 70% area of the township will have landscape green and open area as well as large central green lawns. Believing upon the representations of the OP, the complainant booked a flat and deposited Rs.1330000/- on 20.03.2012. The OP, vide Allotment Letter dated 27.03.2012 allotted Unit No.C-64-FF, area 1390 sq.ft., basic sale price of Rs.9614252.70. Payment plan was ‘construction link payment plan’. The OP executed Floor Buyer’s Agreement (FBA) on 26.07.2012. Clause-5.1 of the FBA provides 30 months period from the date of sanction of building plan or execution of Floor Buyer’s Agreement, whichever is later as ‘commitment period’ for handing over possession with grace period of 180 days. The complainant deposited Rs.1330000/- on 20.03.2012, Rs.1066825.77 on 01.06.2012, Rs.1090355.53 on 28.09.2012, Rs.1931310.09 on 15.11.2012, Rs.2474457/- on 01.03.2013, Rs.719621.54 on 21.10.2013, Rs.663910.75 on 19.11.2013 and Rs.87316.90 on 07.04.2017. Due date of possession including grace period expired in June, 2015. Although the OP realized Rs.9276478/- till November, 2013 but the construction was unreasonably delayed. For timely payment of instalment, the complainant took loan of Rs.3400000/- from Housing Development Finance Corporation Limited on 12.02.2013 and was paying its instalments. The OP, vide letter dated 25.09.2017 offered possession. Then the complainant visited the site and found that construction of the flat was still incomplete and the amenities i.e. club house with indoor heated pool, outdoor pool and kids pool were incomplete. On these allegations, this complaint was filed on 07.11.2017.       

4.      The opposite party filed its written reply on 22.02.2018, in which, booking of the flat, allotment of the flat, execution of FBA and deposits made by the complainant, have not been disputed. The OP stated that terms and conditions were disclosed at the time of booking and two copies of the FBA were sent to the complainant on 11.04.2012, who after reading and understanding, signed it on 26.07.2012. The complainant seeks to challenge the terms of FBA, which is not permitted after five year of its signing. Clause 5.1 of the FBA provides 30 months period from the date of sanction of building plan or execution of Floor Buyer’s Agreement, whichever is later with grace period of 180 days, as ‘commitment period’ for handing over possession was subject to timely payment of instalments and force majeure. The OP applied for sanction of building plan on 17.10.2012, which was sanctioned on 03.05.2013 as such the period of 36 months would complete on 02.05.2016. The OP gave discount of Rs.154912.62 on timely payment of the instalments to the complainant. The complainant delayed payment of instalment, payable till 27.10.2012 (paid on 15.11.2012), instalment, payable till 14.11.2012, 07.12.2012, 27.12.2012, 25.01.2013 (paid on 01.03.2013) and instalment, payable till July, 2013 (paid on 21.10.2013), for which, the OP issued reminders dated 05.11.2012, 19.12.2012, 02.08.2013, 02.09.2013 and 04.10.2013. Majority of the home buyers of the project committed defaults in payment of the instalments as such due to paucity of fund, the construction was delayed. Interest of the complainant is protected under clause-6 of the FBA by providing delay compensation. The OP completed construction and applied for issue of “occupation certificate”, which was issued on 19.09.2017. The OP, vide letter dated 25.09.2017, offered possession to the complainant. In final statement of the account, delay compensation of Rs.222400/- has been credited in the account of the complainant as per FBA. The OP also issued Reminder dated 22.11.2017, for taking possession. Allegations of the complainant that construction of the flat was still incomplete and the amenities i.e. club house with indoor heated pool, outdoor pool and kids pool were not incomplete, are incorrect. The construction of the flat was complete as per specification. The club building and its related facilities, like gymnasium, table tennis, pool table, cart room, home theatre room, massage room, restaurant, juice bar lounge, beautiful landscaped manicured gardens, seasonal flower beds, jogging tracks, golf putting greens, badminton court, tennis court, kids play area, all the promised amenities were complete and functional. The complainant has claimed 18% interest, which shows that he is an investor in real estate with speculation and not a consumer. The complaint is liable to be dismissed.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence of Major Shiv Kumar Sharma and documentary evidence. The opposite party filed Affidavit of Evidence. Affidavit of Admission & Denial of documents of Inderjeet and documentary evidence. The complaint has filed written synopsis.

6.      We have considered the arguments of the parties and examined the record. The complaint has been filed on the allegations that due date of possession including grace period expired in June, 2015 and possession was offered vide letter dated 25.09.2017. Then the complainant visited the site and found that construction of the flat was still incomplete and the amenities i.e. club house with indoor heated pool, outdoor pool and kids pool were incomplete. According to the OP, Clause 5.1 of the FBA provides 30 months period from the date of sanction of building plan or execution of Floor Buyer’s Agreement, whichever is later with grace period of 180 days, as ‘commitment period’ for handing over possession was subject to timely payment of instalments and force majeure. The OP applied for sanction of building plan on 17.10.2012, which was sanctioned on 03.05.2013 as such the period of 36 months would complete on 02.05.2016. This Commission, in CC/3616/2017 Anupma Rastogi Vs. M/s. BPTP Limited (decided on 12.06.2023), arising out of same project “Astaire Gardens” held that 36 months would be counted from date of sanction of building plan.      

7.      The complaint has been filed after offer of possession, as such, delay in offer of possession was not in issue. If the delay was a ground for claiming refund, then the complainant may not have waited till offer of possession. The complainant stated that even on the date of offer of possession, construction of the flat was incomplete and the amenities i.e. club house with indoor heated pool, outdoor pool and kids pool were incomplete. This allegation has been denied by the OP, who has stated that the construction of the flat was complete as per specification. The club building and its related facilities, like gymnasium, table tennis, pool table, cart room, home theatre room, massage room, restaurant, juice bar lounge, beautiful landscaped manicured gardens, seasonal flower beds, jogging tracks, golf putting greens, badminton court, tennis court, kids play area, all the promised amenities were complete and functional. Both the parties have filed photographs. Issue of “occupation certificate” is prima facie proof of completion of construction. The complainant has not filed any application for local inspection as such the photographs attached by the OP are not liable to be disbelieved. Supreme Court in Ireo Grace Realtech Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held 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). In this case, three Judges Bench decision in Ireo Grace Realtech Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, was not considered. So far as Ireao Private Limited Vs. Aloke Anand, 2022 SCC OnLine SC 106 is concerned, in this case, in spite of interim order for handing over possession, the opposite party could not deliver possession. As such these cases are not applicable.     

8.      In case, after offer of possession, the complainant denies to take possession then he is committing breach of the agreement and his earnest money is liable to be forfeited. Under clause-2.6 of the FBA, ‘earnest money’ is 25% of total consideration. However, Supreme Court in Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405, Maula Bux Vs. Union of India, (1969) 2 SCC 554 and Kailash Nath Associate Vs. Delhi Development Authority, (2015) 4 SCC 136, held that forfeiture of earnest money for 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 will remain with the opposite party 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 Mr. Saurav Sanyal Vs. M/s. Ireao 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 party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, after forfeiting 10% of basic sale price, 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 the complainant, first and pay balance amount to him.