1.      Heard Mr. Sudhir Sharma, Advocate, for the complainant and Ms. Nidhi Tewari, Advocate, for the opposite parties.  

2.      Rakesh Kumar has filed the above complaint for directing the opposite parties to (i) refund the amount deposited by the complainant with interest @18% per annum, from the date of deposit till the date of payment; (ii) award Rs.10000000/-, as compensation for unfair trade practice, (iii) award Rs.500000/-, as litigation cost; and (iv) any other relief which is deemed fit and proper in the facts of the case. 

3.      The complainant stated that M/s BPTP Ltd. and M/s Countrywide Promoters Private Limited (opposite parties) were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite parties launched a group housing project in the name of “Terra”, at Sector 37-D, at Gurgaon in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainant booked a flat on 23.08.2012 and deposited the booking amount. The opposite parties issued allotment letter dated 07.12.2012, allotting Unit no. T24-1004, admeasuring 1691 sq. ft., total consideration of Rs.10462642/-.  Thereafter, the opposite parties executed Flat Buyers’ Agreement on 15.01.2013 in favour of the complainant. In clause 1.6 of Flat Buyers’ Agreement, commitment period for offer of possession has been mentioned as 42 months from the date of sanction of the building plan or execution of the Flat Buyers’ Agreement, whichever is later. Since the date of sanction of the building plan has not come, date of Flat Buyers’ Agreement was the later date and due date of possession expired on 14.07.2016. The complainant has taken loan and as per demand of the opposite parties paid Rs.7777825/- till the year 2015.  The complainant wrote an e-mail dated 14.08.2015 enquiring about the progress but no satisfactory reply has been given by the opposite party. The opposite parties through email dated 12.09.2016, raised a demand of Rs.2096344.80, although payment plan was subvention plan and balance amount was payable at the time of handing over of possession. Therefore, this complaint was filed on 17.01.2017. 

4.      The opposite party has filed its written reply and contested the matter. In the written reply, allotment of the flat, execution of agreement in favour of the complainant as well as deposits made by the complainant, have not been disputed. The opposite party however, took plea that due to force majeure circumstances, the construction could not be completed within time and now the construction is near completion. Therefore, the complaint is not maintainable. 

5.      The complainant filed Rejoinder reply, Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Mr. Rakesh Kumar. The opposite parties filed Affidavit of Evidence of Mr. Dhruv Narain Chaudhary. Along with Affidavit of Evidence of Mr. Dhruv Narain Chaudhary, which was filed on 23.12.2019, also “occupation certificate” in respect of the building in question, has not been filed. 

6.      The counsel for the opposite parties states that the building was completed in the year 2021 and after obtaining “occupation certificate”, possession was offered to all the home buyers. This Commission, by judgment dated 04.01.2023, passed in CC/3023/2017 and other connected matters, disposed of the complaints, giving liberty to the complainants either to take refund or to take possession. Since the opposite parties have already offered possession, therefore, they have moved Review Application nos.18 to 32 of 2023 for reviewing the order and deleting the option of refund. As the review application is still pending before the Bench concerned, therefore, hearing may be postponed till the disposal of the review application. 

7.      We have considered arguments of the counsel for the parties and examined the record. At present, there is order of the Bench concerned giving liberty to either take refund or to take possession. There is no justification to postpone the hearing only on this ground pendency of review applications. In the present complaint, the complainant does not want to take possession of the flat after such a delay, therefore, waiting for disposal review application is not required. 

8.      Admittedly, the agreement was executed between the parties on 15.01.2013 and due date for possession expired on 14.07.2016. Under the subvention payment plan, the entire amount as per plan, has been paid but the opposite parties have failed to offer possession within the reasonable period even after expiry of the due date. The complainant cannot be made to wait for unlimited period for possession of his flat.

9.      The counsel for the complainant submits that as the opposite parties are charging interest on delayed payment @18% per annum, therefore, they are liable to pay interest @ 18% per annum on the refund.  We are not able to accept this argument in view of judgment of Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor 2022 Live Law (SC) 352, in which it has been held that in the cases of refund, interest @9% per annum is just compensation, which amounts to restitutory and compensatory both.

ORDER

In the result, the complaint is partly allowed with cost of Rs.50000/-. The opposite parties are directed to refund the entire amount deposited by the complainant along with interest @9% per annum, from the date of respective deposit till the date of refund, within a period of two months from today. Cost imposed by this Commission vide order dated 03.12.2019, shall also be paid along with the above payment. It shall be open for the opposite party to satisfy the bank loan first and refund balance amount to the complainant.