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

1. Handover the possession of the apartment, complete in all respects, as per the buyers agreement and execute all the necessary and required documents in respect of the said apartment in favour of the complainant OR in the alternative provide ready to move in house/apartment/plot to the complainant which is of identical size and in similar locality OR in alternative pay a sum calculated as per square area multiplied by ₹8200/- per sq.ft. being the available market rate of the similar unit to enable the complainant to purchase another house on their own.

2. Pay a compensation for the period of delay in the form of interest @ 18% per annum to the complainant from the committed date of possession till the actual possession of the apartment.

3. Grant immunity to the complainant from payment of any charges incurred due to any escalation in cost including enhanced service tax or stamp duty/registration charges.

4. Pay a sum of ₹1,00,000/- towards mental agony and harassment caused to them.

5. Pay a sum of ₹75,000/- towards the cost of litigation.

2. Notice was issued to the OPs.  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 flat allotted to the Complainant/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table- A.

3. Brief facts of the case, as emerged from the pleadings of the parties and other case records are that: -

1. The deceased complainant purchased a unit number MA1- 201 in Park Prime Mansions, Sector 66, Gurugram, Haryana, measuring 2764 sq.ft. from original allottee Mr. Suresh Kumar Dagar and the said unit was endorsed in his favour and he stepped into the shoes of the original allottee as per Flat Buyer’s Agreement. Late Sh. Hari Ram Sharma filed the present complaint on 8th December 2016 seeking reliefs as stated above. Sh. Hari Ram Sharma expired on 6th may 2019 and as per order dated 15th March 2022, his widow, Ms Manju Sharma, was substituted as the complainant in place of Sh. Hari Ram Sharma.

2. As per the agreement signed with the original allottee, the possession of the said unit was to be handed over within 36 months from the date of the application. The building plans of the said project have been approved and sanctioned by DTCP on 8th December 2008. The possession of the unit has not been delivered yet.

3. Although in the complaint the complainant has prayed for possession as stated above and the same was retreated in the written arguments filed on 26th June 2019,  during the hearing on 15 December 2022, in view of delay in possession, the complainant prayed for refund of the entire money. 

4. Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

5.  It was argued by the complainant that some of the clauses in the buyers agreement that the complainant (original allottee) were made to sign were/are one sided. The complainant has paid the entire sum demanded by the OPs towards the unit but OP has not fulfilled his promise to handover the possession of the flat within the stipulated time, which amounts to deficiency in service on the part of the OP. The last instalment raised by the OP was in 2013. Due to recent amendment in the service tax laws there has been increase in the tax rate which will increase the cost of the unit.

6. During the hearing on 15th December 2022, the OP orally stated that they have already obtained the occupancy occupation certificate (OC) in 2020 and possession of the said unit was offered to the complainant in 2020. However, till the date of the hearing on 15th December 2020, copy of the OC or the offer of possession was not placed on record due to which the complainant requested for refund of the entire money paid by them. It is only after the judgment was reserved after heating the parties on the 15th December 2022 that on 21st December 2022 while filing the written arguments by the OP, that a copy of the OC dated 14th February 2020 and the offer of possession dated 6th March 2020 has been placed on record.

7. In the written submissions dated 21st December 2022 OP has stated that they have completed the construction of Tower A (with 2 wings MA1 and MA2) and Tower B (with 2 wings MA3 and MA4) and have received the occupation certificate on 14th February 2020 for Towers A and B. Proposed timeline for possession of the project was 36 months from the date of sanction of building plans or execution of the agreement whichever is later, along with a grace period of 180 days. The project was delayed due to reasons beyond the control of the OPs. The delay in grant of OC was occasioned on account of non-issuance of fire NOC by Director General Fire Services Haryana. The OPs after grant of OC on 14th February 2020 have issued the offer of possession on 6th March 2020 for the unit in question. The complainant will be compensated by payment of delay penalty as per agreement. Relying on the judgements of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd. vs Abhishek Khanna and & Anr. (2021) 3 SCC 241, the OPs stated that if possession has been offered after obtaining occupancy certificate the buyers are obligated to take possession. It has also been stated that the complainant on various occasions have defaulted in payment.

8.  The contention that complainant(s) is/are not a consumer as he/they has/have purchased the unit for commercial purpose is rejected as no such evidence has been adduced by the OP(s) in this regard. It has been observed by the Commission in various cases 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. The plea of OP(s) that delay was due to force majeure/ circumstances beyond their control is not valid as even after a gap of more than eight years from the committed date given in the FBA, possession of flat has not been given.  There is no documentary evidence to support the contention of the Opposite Parties that the reasons pleaded by them, can be construed as ‘Force Majeure. The contention of the OP(s) that the parties are bound by the agreement is also not acceptable. Plea of the OP(s) for Arbitration as per conditions in the Agreement is also not accepted as the remedies under the Consumer Protection Act are in addition to the remedies available under special statue.

9.  In the complaint as well as written submissions dated 26th June 2019, the complainant has prayed for the possession of the unit in question. However, during the hearing on 15th December 2022, in view of OC still not having been placed on record, the complainant sought refund. It is only subsequent to the hearing on 15th December 2022, when the judgment was reserved that along with their written submissions the OP has placed on record a copy of the OC and offer of possession. Further, in the instant case, there is an inordinate delay in completion of the project and handing over the possession of flat by the OP(s). Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan And Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 and in Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241 held that failure of the developer to comply with contractual obligation to provide the flats within contractually stipulated period would amount to deficiency in service.  In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan (2019) 5 SCC 725, Hon’ble Supreme Court held that flat purchaser could not be compelled to take possession of the flat when it was offered almost 2 years after the grace period under the agreement expired. Hence, the complainant(s) in the present circumstances cannot be made to wait for an indefinite time and suffer financially and have a legitimate right to choose whether to take possession or seek refund along with fair delay compensation/interest from the OP(s). The plea of OP(s) for entitlement of compensation to the complainant in accordance with provisions of the agreement is not valid.

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(s) shall furnish a copy of the OC dated 14.02.2020 to the complainant within 15 days of this order and hand over the actual physical possession of the unit in question to the complainant(s), complete in all respects as per specifications and alongwith all the facilities/amenities as promised in the brochure/agreement within two months of date of this order subject to the complainant paying the balance amount as per agreement, if any, (without any penalties or interest) within 45 days of this order.OP(s) shall also arrange joint inspection of the unit with the complainant(s)/their representative within 15 days of this order to satisfy them about the completeness of the unit as per the specifications and alongwith amenities/facilities as per brochure/agreement. If any deficiencies are noticed as a result of such joint inspection, the same shall be got rectified within 15 days of date of such joint inspection.

(ii) OP(s) shall also be liable to pay delay compensation in the form of simple interest @6% from 26.04.2014 (Committed date of possession) to the date of actual physical possession.

(iii) In case the complainant (s) do not wish to seek possession of the flat in question and want refund of their money, they shall make a specific request to the OPs, in writing, in this regard, within 30 days of date of this order.In such a situation, the OP(s) shall refund the entire principal amount of Rs.1,31,33,433/- (Rupees one crore thirty one lakh thirty three thousand four hundred thirty three only) (without imposition of any penalties/forfeiture of earnest money etc.) along with simple interest @ 9% p.a., within 30 days of receipt of such request. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.

(iv) The OP(s) shall pay a sum of Rs.50,000/- as cost of litigation to the  complainant. 

                   (v) The liability of the OP(s) shall be joint as well as several.

(vi) The payments in terms of this order shall be paid within three months from today.

(vii) In case the complainant(s) has/have taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount (in case complainant opts for refund as per para 10 (iii) above) will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP(s) 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 Complaint, if any, also stand disposed off.