1.      Heard Mr. Sunil Kumar, Sr. Advocate, assisted by Mr. Santosh Mishra, Advocate, for the complainant and Mr. Sukumar Pattjoshi, Sr. Advocate, assisted by Mr. Rajeev Agarwal, Advocate, for the opposite parties.

2.      Ajit Jha has filed above complaint for directing the opposite parties to (i) refund entire amount deposited by him with interest @24% per annum from the date of respective deposit till the date of refund; (ii) pay lump sum compensation for mental agony and harassment; (iii) pay the 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 opposite party-1 was a joint venture of Emaar Properties, Dubai and MGF Land Limited, a company, registered under the Companies Act, 1956 and opposite parties-2 to 7 were its office bearers. The opposite parties were engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite parties launched a group housing project of the villas, in the name of “Marbella” at village Maidawas, Sector-65 & 66, Gurgaon, in the year 2011 and made wide publicity of its facilities and amenities, giving rosy pictures such as “Exclusive Ultra-chic, Impeccably planned, Luxurious, Lavish Secure, Every word defines Marbella, one kind gated residential development comprising exquisitely appointed villas”. Authorised representatives of the opposite parties approached the complainant during 2011 and reiterated their representations. The complainant, in his early 50s, dreamt of a home, where he would live with his parents and brothers and experience the joy of living together. The complainant inquired from Managing Director, Directors, Executives and other officials of opposite party-1, who informed that all necessary approvals had been obtained and possession would be delivered within 30 months from the ‘commencement of the construction’. The complainant is an ardent believer of ‘vaastu’ and told the directors and authorised representatives of opposite party-1 that two ‘vaastu’ orientations i.e. (i) east facing villa and (ii) master bed-room at south-west corner, were compulsorily required. The Manager (Sales) took a specific note of the requirement of the complainant and consulted with the designing team. After protracted discussions of several rounds, Mr. Amitabh Dhawan, Vice President (Sales) and Mr. Ajay Gupta, Head Design short listed Villa Nos.68 & 69, which were east facing and communicated to the authorised representative, vide email dated 07.11.2011. The complainant selected Villa No.69, in which, master bed-room was located at south-west corner as per design, filled up application form on 28.11.2011 and deposited booking amount of Rs.30/- lacs through cheque dated 25.11.2011. Opposite party-1 allotted Villa No.69, size 500 sq. yard, basic price Rs.76630000/-, vide letter dated 14.12.2011 and sent two copies of Buyer’s Agreement, which were signed by the complainant on 07.02.2012. Annexure-3 of the agreement provides payment plan as “construction link payment plan”, in which total consideration of Rs.81993822.54 was mentioned. For timely payment of the instalments, the complainant applied for home loan to ICICI Bank, which sanctioned a loan of Rs.55000000/- and the complainant signed loan agreement on 23.11.2011. Opposite party-1 realized the instalment “on start of site infrastructure development” on 21.04.2012. Clause-10(a) of the agreement provides for handing over possession within 30 months from ‘commencement of development work’ with grace period of 90 days. Due date of possession expired in January, 2015. As per demand, the complainant deposited Rs.3000000/- on 29.11.2011, Rs.2000000/- on 09.01.2012, Rs.1000000/- on 09.01.2012, Rs.2000000/- on 09.02.2012, Rs.3790483/- on 11.02.2012, Rs.225000/- on 18.02.2012, Rs.775000/- on 18.02.2012, Rs.1000000/- on 22.02.2012, Rs.5074242/- on 22.02.2012, Rs.5895242/- on 13.03.2012, Rs.1179000/- on 13.03.2012, Rs.7899786/- on 24.04.2012, Rs.5960358/- on 26.09.2013. Rs.5960358/- on 25.02.2014, Rs.12145437/- on 29.05.2014, Rs.5845094/- on 30.06.2014, Rs.115264/- on 30.06.2014, Rs.5960358/- on 31.07.2014, Rs.3973572/- on 31.12.2014, Rs.529743/- on 19.04.2017 (total Rs.74328937/-). The opposite parties realized Rs.4.57 crores till March, 2014. In first week of March, 2014, the complainant met with the authorised representative of the opposite parties to discuss some cost-neutral customization of the Villa and visited the site whereupon he discovered that the “vaastu” orientation of Villa-69 had been completely reversed inasmuch as master bed-room was not located at south-west corner. The complainant through emails dated 03.03.2014, 11.03.2014, 19.03.2014, 30.03.2014, 08.04.2014, 15.04.2014 and 15.05.2014 requested the opposite parties to correct the location of master bedroom from north-west to south-west corner till 20.09.2014. The opposite parties, however, did not respond. The complainant tried to approach the Managing Director on telephone, but he did not pick up the call. Since the emails of the complainant were not replied, as such, payment of instalment was delayed in March, 2014 onward and the opposite parties charged interest @24% per annum for the instalments paid on 31.03.2014, 30.04.2014 and 31.05.2014. The complainant gave a legal notice to the opposite parties on 02.06.2014 to rectify the design of Villa-69 as per norms of ‘vaastu’, which was replied by the opposite parties through notice dated 17.06.2014, in which, they have stated that sanctioned layout plan of the villa was shown to the complainant and he had agreed that it had satisfied the “vaastu” norms. Subsequently the villa was constructed and now it was not possible to make any change, as required. As per agreement, the complainant has given consent for any alteration in design for Villa. The complainant then talked to the Manager’s office who assured to solve “vaastu” orientation issue.  The complainant applied for home loan to PNB Housing Finance, and a loan of Rs.64800000/- was granted on 21.11.2014. Then the complainant foreclosed the loan account of ICICI bank. The possession was also delayed unreasonably due to which the complainant has been put to undue stress and harassment and the complainant had suffered severe anxiety and stress leading to depression. Due to which the complainant lost his opportunity for encashing first lot of company share worth Rs.5000000/-. The complainant was living in a rented accommodation since 14.11.2013 and duration of lease was expired on 14.11.2015. Then fresh lease was executed on 15.11.2015 for the period of 14.11.2017 on monthly rent of Rs.100088/- and Rs.105092/-. The complainant withdrew Provident Fund from Hindustan Coca-Cola in 2011-2012, from Diageo India Pvt. Ltd. in 2013, from Indorama Synthetics in 2015 and February, 2016, from SAB Miller India in April 2016. By a letter dated 21.10.2017, the complainant requested for urgent release of matured Provident Fund, Settlement money withdraw from Tata Steel for his 20 years of service including Provident Fund, privilege leave encashment. In order to pay interest on home loan the complainant withdrew from his Insurance Policies, details of which are mentioned below:-

4.      As per demand the complainant paid Rs.529743/- on 19.04.2017 as Haryana VAT. The delivery of possession was unreasonably delayed.  The complainant made representation dated 04.05.2017. The opposite parties instead of replying the letter of the complainant issued demand letter dated 05.05.2017. The opposite parties through email dated 29.05.2017 invited objection/suggestion in revision of lay out plan.  The complainant vide letter dated 26.06.2017 objected for revision of layout plan. The complainant again wrote reminder dated 21.10.2017 for possession. The complainant has to pay EMI on the loan and for paying it, the complainant had to sell his shares in February, 2018. The opposite parties, through letter dated 17.01.2018, offered possession of the Villa raising additional demand of Rs.1.5 crores. The complainant through letter dated 17.01.2018 made inquiries. The complainant again wrote an email dated 31.01.2018 in respect of “occupation certificate”. On visiting the site, it was revealed that opposite parties were trying to hoodwink the complainant, the competent authorities and the legal mechanism. The Villa itself was incomplete with kitchen flooring, lighting lawns etc. incomplete and the workers were still camping there in adjacent Villas on the front side and back side are still under construction. Right next to the Villa, a massive junk yard of roads, pipes, wire etc. were there as it was some months back typical of midstream construction site. The debris of construction materials including bricks, stones pipes, sand etc. at regular gaps all over the campus. On enquiry from the engineers, supervisors and workers, it was informed that the completion of whole campus will take longer time. In other half of 110 acres of the project land, no development work was even initiated. At the access through auxiliary entrance to the campus, large tin sheds erected, construction work all around Villa-69 itself was going on. The amenities and facilities as represented in brochure were completely lacking. Then this complaint was filed on 07.02.2018.

5.  The opposite parties filed its written reply on 16.08.2018 and stated that in the provisional allotment letter, it has been mentioned that please further note that since ‘super area’, ‘building plans’, ‘floor plans’ and specification in the project are tentative as on the date of issuance of the allotment letter. The opposite parties have not given any assurance to the complainant that the Villa would be constructed on “vaastu” norms.  Clause 8 (g) of the Buyer’s Agreement is also in the same terms as in the allotment letter. The complainant has agreed that the company shall have right to effect and carry out such additions and alterations, deletion and modifications in the layout plans and building plans at its sole option and discretion. The complainant after reading and understanding the terms of the agreement signed the agreement. Now, after offer of possession on 17.01.2018, he cannot be permitted to raise any objection to the terms and conditions of the allotment letter as well as agreement.  The complainant booked the Villa through M/s. I Realtors. Any communication between the complainant and M/s. I Realtors prior to the booking of the Villa is not known to the opposite parties.  The claim of interest @24% is highly excessive and contrary of Section 74 of the Indian Contract Act, 1872. Clause 10 of the Buyer’s Agreement has to be read along with Clause 16 and 26 of the Agreement under which the delivery of possession was subject to timely payment of instalment and force majeure events. The complainant was defaulter and made payment of various instalments with delay. The completion of the Villa depended upon the payment of the instalment.  As the complainant has defaulted in payment of instalment, the construction has proceeded with slow step. Opposite party-1 has initiated the process demerger pursuant to a scheme of arrangement under Section 391-394 of Companies Act, 1956. Opposite party-1 was under leadership of EMAAR Company.  Opposite party-1 deployed about 15000 labours on the project sites across the country. Due to the above reasons, the delay in completion of Villa had occurred. Interest of the complainant has been secured under Clause 12 of the Buyer’s Agreement by providing compensation for delayed period. At the time of offer of possession, the delay compensation of Rs.1486961/- was credited to the account of the complainant. The complainant has raised the issue of “vaastu” norms through email dated 03.03.2014. The opposite parties through email dated 11.04.2014 informed the complainant that location could not be changed at that stage. Thereafter, the complainant did not raise issue of “vaastu” and continued on paying the instalments. Letter dated 29.05.2017 was issued for revising the lay out plan as suggested by the competent authority. The opposite parties denied receiving of letter dated 21.10.2017 sent by the complainant and that the fact that construction of Villa was incomplete on the date of offer of possession. Instead of paying the balance amount and taking possession, this complaint has been filed on false allegation and is liable to be dismissed.

6.      The complainant filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of the documents of Ajit Jha and documentary evidence. The opposite parties have filed Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Rajendra Prasad and documentary evidence. Both the parties have filed their written synopsis.

7.      We have considered the arguments of the counsel for the parties and examined the record. The first issue raised by the complainant is that he was primarily concerned with the “vaastu” orientation of the Villa. Before booking the Villa, he had made a specific query in this respect. Ms. Anjali Monga informed the concern of the complainant to Deputy General Manager Design and Development through email dated 07.11.2011 who supplied the tentative layout plan of Villa-68 and Villa-69. Layout plan of Villa No.69 was satisfying the norms of ‘vaastu’. As such the complainant booked Villa-69. The representatives of opposite party-1 made a commitment for constructing Villa-69 on “vaastu” norms. This fact has been denied by the opposite parties. According to the opposite parties, the complainant booked Villa through a real estate broker, namely M/s. I Realtors. Any communication by M/s. I Realtors to the complainant was not in the knowledge of the opposite parties.  The email dated 07.11.2011 was from one section to other section of opposite parties. Tentatively lay out plan of Villa-68 and Villa-69 was required, which was supplied from the Designing Department and after examining the layout plan the complainant has booked the Villa. Booking application, allotment letter and the agreement contained a clause that ‘super area’, ‘building plan’, ‘floor plan’ and specification in the project were tentative liable to be changed, therefore, the allotment for the Villa-69 was not a proof that the villa was on “vaastu” norms. A perusal of the record, shows objection to the “vaastu” norms has been raised by the complainant to the opposite parties for the first time through email dated 03.03.2014 and the opposite parties through email dated 11.04.2014, declined to change the location of Villa-69. Thereafter the complainant remained silent and deposited the instalments. In the reminder letter dated 21.10.2017, no issue of “vaastu” norms has been raised by the complainant rather the complainant has demanded various papers i.e. approved building plan of Villa-69, date of completion of IDC work and EDC work, date of installation of power backup system and date of start of club and other amenities etc. and date of handing over possession of Villa. Thus, at this stage, the complainant cannot be permitted to raise the ground that Villa-69 was not constructed according to the “vaastu” norms, as this issue could be raised within two years from the letter dated 11.04.2014.

8.      The counsel for the opposite parties relying upon the judgment of Supreme Court in Ireo Grace Realtech Private Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, submitted that after issue of “Occupation Certificate” possession has been offered to the buyer then he is contractually obligated to take possession. In the present case, the “Occupation Certificate” was obtained on 18.11.2017 and possession was offered on 17.01.2018, therefore, the complainant was contractually obligated to take possession.

       Club and related amenities may be deficiency in service but on that ground, possession could not be avoided.

9.      If after offer of possession the complainant wants to wriggle out from the contract then as per Cluae-1.8 (c) of the Agreement, the ‘earnest money’ is liable to be forfeited. In Clause 11 of the Booking Application Form 15% of total consideration has been provided as earnest money. 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”.

10.    It was vehemently argued by the counsel for the complainant that as the builder had charged interest @24% per annum on delayed payment of instalments on 31.03.2014, 30.04.2014 and 31.05.2014, as such, the builder is liable to pay interest at the same rate.  He also relied upon the report of Select Committee on the Real Estate (Regulation and Development) Bill, in which, it has been mentioned that Committee holds that on default, the interest rate payable by the promoters as well as allottee shall be same even eventuality of default by either of them.  He submitted that in view of this report, in Section (2)(za) of the Real Estate (Regulation and Development) Act 2016, the interest has been defined, in which, also it has been mentioned that the rate of interest chargeable from the allottee by the promoters in case of default, shall be equal to the rate of interest which the promoters shall be liable to pay the allottee, in case of default. He relied upon the judgment of Supreme Court in Civil Appeal No.4913 of 2015, M/s. Ashoka Investment Co. Vs. United Towers India (Pvt.) Ltd. (decided on 11.10.2022) in which interest @18% has been awarded in the case of refund.

In this case, the complainant himself is committing breach of contract. A reasonable compensation is payable for breach of contract under Section 73 of the Contract Act, 1872.. A larger Bench of Supreme Court in Experion Developers Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that in case of refund, interest @9% per annum is just compensation, which amounts to restitutory and compensatory both. In view of larger Bench judgment of Supreme Court interest cannot be awarded more than 9% per annum.

11.    The complainant has filed EA/68/2022 for enforcement of order dated 14.08.2018 by which the parties were directed to maintain status quo in respect of Villa and final demand. Now, the complaint is being decided finally.  EA has become infructuous.

ORDER

          In the result the complaint is partly allowed. The complainant is given liberty to give his option within one month, either for taking possession or for refund. In case the complainant opts for possession, then he shall pay the amount demanded by the opposite parties along with statement of account as supplied on 17.01.2018 with interest @9% per annum from 18.01.2018 till the date of deposit, within a period of six weeks thereafter and the opposite parties shall deliver possession of the Villa in dispute within another period of six weeks, complete in all respect and execute conveyance deed in his favour. If the complainant opts for refund of his money, then the opposite parties shall refund it with interest @9% per annum from the date of deposit till the date of refund after deducting earnest money equal to 10% of basic sale price within a period of two months from the date of option.

          EA/68/2022 is dismissed as infructuous.