Heard learned counsel for the complainant. None appears for the opposite parties no. 1 and 2. The complaint was admitted and notices were issued calling upon the opposite parties to answer this complaint. The complainant has come up with a request that as per the Builder Buyer Agreement dated 27.04.2013 the complainant was entitled to possession of the premises within 36 months as per clause 32 of the agreement but neither possession was offered nor any other intimation was given. The opposite parties no. 1 and 2 entered appearance and filed their written statement on 18.07.2017 which is on record. From the order sheet, it is evident that no one has been appearing on behalf of the opposite parties no. 1 and 2 since 2022 even though they have filed their written statement. It is in these circumstances that orders were passed on 12.01.2024 to proceed ex-parte against the opposite parties no. 1 and 2. The same is extracted hereunder: “The Complaint was admitted on 06.06.2017 and notices were issued. The Opposite Party No.1&2 filed their reply as recorded in the order dated 28.11.2017. The Complainant made a submission which is recorded in the order dated 11.07.2018 that they do not wish to proceed against the Opposite Party No.3&4, who were deleted from the array of parties. Thereafter, directions were issued for filing of rejoinder affidavit and evidence on 26.11.2018 and the case was adjourned. On 09.07.2019 again opportunity was granted to the Opposite Parties also to file evidence by way of affidavit. It appears that after the pandemic set in, the Opposite Party did not respond as no evidence by way of affidavit was filed by them. Vide order dated 26.04.2022, again an opportunity was granted and a direction was issued to file written synopsis as well. The order sheet from 29.09.2022 onwards indicates that no one is appearing on behalf of the Opposite Party No.1&2 except one Mr. Mahesh Behari Chibber, who appeared on 02.01.2023 and sought discharge as Counsel on behalf of the said Opposite Parties. The Application No. 11789 of 2022 to that effect was allowed, and a letter was issued to the Opposite parties along with a copy of the said order for information. No Counsel was engaged by the Opposite party No.1&2 nor anyone has put in appearance, inspite of the fact that the case was listed on 16.02.2023, 29.03.2023 and 04.04.2023. Even though directions had been issued giving an opportunity to the Parties to complete their pleadings, there was nobody appearing on behalf of the opposite Parties. The case could not be taken up on 26.10.2023, when two Counsels did appear namely Mr. Sagar Saxena and Ms. Mumtaz Ahmad, whose names are shown in the order sheet dated 26.10.2023. The Vakalatnama has also been filed as reported by the office on 11.01.2024. The Complainant has filed an affidavit by way of evidence on 25.08.2022 itself. Learned Counsel for the Complainant states that he does not propose to file any rejoinder. In the wake of the aforesaid facts today, when the matter has been called out no one is appears on behalf of the Opposite party No.1&2. It is therefore directed that the complaint shall proceed ex-parte against the Opposite Party No.1&2. List for final disposal on 29.05.2024.” The opposite parties no. 3 and 4 had already been deleted earlier. The contention raised by Mr. Madhurendra Kumar, learned counsel for the complainant, is that in the absence of any offer of possession and the admitted fact that the complainant has paid a sum of Rs.57,10,081/- to the opposite parties, the complainant has come up for refund coupled with other ancillary benefits of damages and costs, as such the complaint deserves to be allowed. Even though the opposite parties no. 1 and 2 have been proceeded ex-parte, yet their written statement which was accepted on record recites in paragraph 5(c) as follows: “(c) Mr. Sanjiv Gupta, son of Shri R.N. Gupta had booked apartment No. K-601 in Ess Vee Apartments (Phase-II) with O.P No.1. Vide separate applications, both dated 27.04.2013, Mr. Sanjiv Gupta and the complainant sought permission from O.P No.1 to transfer the said apartment in favour of the complainant. Accordingly, Apartment Buyers Agreement dated 27.04.2013 was executed between the Complainant and O.P. No.1 by which the complainant booked apartment No.K-601 in Ess Vee Apartments (Phase-II) having super area of 1725 sq. ft. at a total agreed price of Rs.67,70,000/- on construction linked instalment payment plan. As per terms and conditions mentioned in the price list attached with the Application Form for allotment of a residential apartment in Ess Vee Apartments (Group Housing Project) in Sector-20, Panchkula, the Complainant was required to make the payment of instalments as per the following schedule. CONSTRUCTION LINKED INSTALLMENTS PAYMEMNT PLAN | Application money at the time of booking | 10% | Within 30 days from booking | 15% | Within 15 days from the date of start of construction of tower of booked apartment | 10% | Casting of stilt floor roof slab of tower of booked apartment | 10% | Casting of first floor roof slab of tower of booked apartment | 10% + PLC + additional car parking slot, if any | Casting of third floor roof slab of tower of booked apartment | 5% | Casting of fifth floor roof slab of tower of booked apartment | 5% | Casting of seventh floor roof slab of tower of booked apartment | 5% | Casting of final roof slab of tower of booked apartment | 5% | Completion of brick work of booked apartment | 5% | Completion of internal plaster of booked apartment | 5% | Completion of flooring of booked apartment | 5% | Start of internal painting/Polishing of booked apartment | 5% | At the time of offer of possession | 5% |
It is submitted that up to March 31, 2017, the complainant has paid a sum of Rs.57,10,081/-, leaving a pending credit balance payment of Rs.1,54,318/-. Out of the aforesaid amount, a sum of Rs.1,66,706/- has been deposited as service tax being statutory dues. A copy of the Statement of Account is attached herewith and marked as Annexure D-2.” It may be pointed out that the premises had been originally booked in the name of Mr. Sanjiv Gupta who applied for transfer on 27.04.2013 after having settled the property with the complainant. The said transfer request by the seller is at page 56 of the paper-book and the request made by the complainant of the same date is at page 59. On receipt of these application forms, the builders/opposite parties no. 1 and 2 accepted and endorsed the same on the same date by the letter dated 27.04.2013 which is at page 62. Pursuant to the aforesaid transfer, a fresh apartment buyers agreement was entered into between the complainant and the opposite parties no. 1 and 2 which is at page 63. Clause 32 of the agreement is extracted hereunder: “32. That the Promoter / Developer / Company based on its present plans and estimates and subject to all just exceptions, contemplates to complete construction of the said building / apartment within a period of 36 months from the date of commencement of construction unless there shall be delay or failure due to reasons mentioned in the present agreement or due to failure of Apartment Allottee(s) to timely pay the price of the said apartment along with other charges and dues in accordance with the schedule of payments as agreed upon between Promoter / Developer / Company and Apartment Allottee from time to time and / or any failure on the part of the Apartment Allottee to abide by all or any of the terms and conditions of this agreement. In case of any delay on the part of Promoter / Developer / Company to complete the construction within said time period, which is attributable directly due to the fault of the Promoter / Developer / Company, the Promoter / Developer / Company shall pay a penalty @ Rs.7/- per sq. ft. per month, for the delayed period.” The premises was to be delivered within 36 months but from the reply in the written statement in paragraph 5(e) it is evident that the constructions were not complete in time. This admission on the part of the opposite parties no. 1 and 2 therefore leaves no room for doubt when the constructions were not complete, there was no occasion to offer possession or delivery thereof and hence the complainant was fully justified in instituting this complaint in 2017 seeking refund. The payment made by the complainant is admitted in paragraph 5(c) of the written version as extracted hereinabove. The undisputed position therefore is that neither any offer of possession was made nor the constructions could be completed within time and consequently the complainant was entitled for refund. Learned counsel submits that the refund should be permitted with the rate of interest which the opposite parties no. 1 and 2 claim to realize in terms of clauses 10 and 13 of the agreement which is 18%. In the wake of the aforesaid facts which remain undisputed and since the matter has proceeded ex-parte against the opposite parties no. 1 and 2, there hardly remains any choice except to allow the complaint for the deficiencies referred to hereinabove. The non-delivery of possession is therefore writ large on the facts of this case and the amount of money paid having been retained without rendering any service is also evident. Consequently, the complaint deserves to be allowed. Accordingly, the complaint is allowed with a direction to the opposite parties no.1 and 2 to pay the entire deposited amount of Rs.57,10,081/- with interest thereon within three months from today. Coming to the rate of interest as claimed, keeping in view the various judgments of the Apex Court that have been rendered from time to time, it would be appropriate to allow the rate of interest as awarded by the Apex Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Anr. 2021 SCC OnLine SC 14 @ 9% per annum. Accordingly, the amount to be refunded by the opposite parties no.1 and 2 shall carry interest @ 9% per annum with effect from the date of each of the deposits as made by the complainant. In the event of default of not making the payment within three months, the rate of interest shall stand enhanced to 12%. Litigation costs of Rs.50,000/- shall also be paid to the complainant. The complaint stands allowed on the above terms. | 
