1.      Heard Mr. Sushil Kaushik, Advocate, for the complainants and Mr. Rajeev Agarwal, Advocate, for the opposite party.

2.      Jitendra Kumar and Neelam Kumari have filed above complaint for directing the opposite party to pay (i) delay compensation in the form of interest @12% per annum on their deposit from due date of possession till 06.03.2017; (ii) interest @24% per annum, compounded monthly on the amount of delayed compensation from 06.03.2017 till the date of its realization; (iii) Rs.500000/-, as compensation for mental agony, harassment and the litigation costs; and (v) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project of independent build-up floors, in the name of “Emerald Hill-Floors” at villages Nangli Umarpur, Badshahpur, Maidawas, Sector-65, Gurgaon, in the year 2009 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, Mr. Arun David booked a floor on 23.06.2009 and deposited booking amount. The opposite party allotted Unit No. EHF-350-I-SF-095, super area 1750 sq.ft., basic sale price of Rs.6508600/- and executed Buyer’s Agreement in his favour on 10.12.2009. Annexure-III of the agreement provides payment plan as “construction link payment plan”. As per demand of the opposite party, Mr. Arun David deposited Rs.6550262/- till September, 2013. With permission of the opposite party, the complainants purchased Unit No. EHF-350-I-SF-095, from Mr. Arun David on 15.01.2017 for a sale price of Rs.10850000/-. At that time, the opposite party assured the complainants that delay compensation would be paid on offer of possession as per agreement. Clause-13(a) of the agreement provides due date for possession as 27 months from the date of agreement with grace period of 3 months. Due date of possession expired in June, 2012. The opposite party offered possession, vide letter dated 20.02.2017, along with demand of Rs.944544/-. The complainants deposited the amount, completed formalities and took possession on 06.03.2017. Although possession was unreasonably delayed but the opposite party did not give any amount as delay compensation as per clause-15(a) of the agreement. Then this complaint was filed on 02.01.2019, alleging deficiency in service.

4.      The opposite party filed written reply on 09.04.2019, in which, booking of the floor on 23.06.2009, allotment of floor, execution of Buyer’s Agreement dated 10.12.2009 and deposits made by Mr. Arun David, have not been denied. The opposite party stated that the payment plan was “construction link payment plan”. As the construction was delayed as instalments were demanded/deposited with delay. The opposite party completed the construction of the floor and offered possession, vide letter dated 23.01.2017 to Mr. Arun David. The complainants purchased Unit No. EHF-350-I-SF-095, from Mr. Arun David on 15.01.2017. On the application of Mr. Arun David dated 27.01.2017, the opposite party endorsed the sale deed on 02.02.2017. Then a revised offer of possession letter dated 20.02.2017 was issued to the complainants. The opposite party executed final conveyance deed in favour of the complainants on 20.02.2017, which has been deposited with HDFC, from where, the complainants have taken loan for purchasing the floor. The complainants deposited balance amount and executed an Indemnity-cum-Undertaking on 24.02.2017 and took possession of the floor on 06.03.2017. The complainants never put any demand for delay compensation before the opposite party. The complaint is not maintainable and is liable to be dismissed.

5.      The complainants have filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Jitendra Kumar and documentary evidence. The opposite party has filed Affidavit of Evidence of Rajendra Prasad and documentary evidence. Both the parties have filed written synopsis.

6.      We have considered the arguments of the counsel for the parties and examined the record. The complainants purchased the floor from open market on 15.01.2017, from the original allottee. Their transfer has been endorsed by the opposite party on 02.02.2017. The opposite party offered possession, vide letter dated 20.02.2017. There is no delay in offer of possession. The complainants have concealed the material fact that thereafter, they had executed an undertaking on 24.02.2017 that they would not claim any compensation. The complainants have not challenge the undertaking on any ground of fraud or coercion rather concealed this fact. The complainants are transferees from original allottee and delay for the complainants has to be counted from the date of their transfer as held by Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (2020) 16 SCC 318 and Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, AIR 2021 SC 4229.

ORDER

ln view of aforesaid discussion complaint is dismissed.