National Consumer Disputes Redressal
Dr. Viresh Arora vs Puri Construction Pvt. Ltd. & Anr. on 13 January, 2020
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1598 OF 2017 1. DR. VIRESH ARORA S/o. Shri Subhash Chander Midha, Presently Residing at: A1/244, Janakpuri, New Delhi - 110058 ...........Complainant(s) Versus 1. PURI CONSTRUCTION PVT. LTD. & ANR. Through its Managing Director, Regd. office at: 4-7B, Ground Floor, Tolstoy House, 15 & 17 Tolstoy Marg, New Delhi - 110001 2. Florentine Estates of India Limited Through its Managing Director, Regd. office at: 4-7B, Ground Floor, Tolstoy House, 15 & 17 Tolstoy Marg, New Delhi - 110001 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER
For the Complainant : Mr. Deepak Kr. Khushalani, Advocate For the Opp.Party : Mr. Pravin Bahadur, Advocate, Ms. Kanika, Advocate & Mr. Amit Agarwal, Advocate.
Dated : 13 Jan 2020 ORDER Per Mrs. M. Shreesha, Member
This Consumer Complaint is filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short "the Act") by the Complainant against the Opposite Parties seeking the following reliefs:-
"a) Direct the OPs to refund sum of ₹1,14,58,547/-(Rupees One Crore Fourteen Lakh Fifty Eight Thousand Five Hundred Forty Seven only) [being the sum of ₹75,53,217/- (Rupees Seventy Five Lakhs Fifty Three Thousand Two Hundred Seventeen only) deposited with OP-1 with interest @ 18% per annum calculated w.e.f. the respective dates when the complainant made such payment to OP No. 1 upto 10.03.2017] and further compensation thereafter till actual payment by OP No. 1; and
b) Direct the OP to pay interest on the above amounts @ 18% per annum for the period pendent lite and till the actual date of payment by the Opposite Party to the Complainant; and
c) Direct the opposite party to pay to the complainant amount of ₹10,00,000/- (Ten Lakhs only) towards compensation for harassment, mental pain and agony suffered and sustained by the complainant at the hands of the opposite party; and
d) Direct the opposite party to pay the costs of these proceedings to the complainant as considered fit by this Hon'ble Commission;
e) Pass any or further order(s) that this Hon'ble Commission may deem fit and proper in view of the facts and circumstances of the case."
2. The facts in brief are that the Opposite Parties were in the process of developing a residential Group Housing Colony at a land admeasuring approximately 15.337 acres under the name of "Emerald Bay" in Sector 104, village Dhanwapur, Tehsil & District, Gurgaon, Haryana. In the month of January, 2013, the Complainant was approached by the representative of the First Opposite Party (hereinafter referred as "the Developer") to invest in the Project being constructed by them. The Complainant was looking for buying a premium residential flat at Gurgaon for his residential needs and he was assured that all the project approvals/licences were being issued shortly by DGTCP and in the event of the Complainant booking a residential unit immediately, he would also have the benefit of a pre-launch price. He was shown a sample flat constructed at Puri Sales Gallery at Sector-111, Dwarka Expressway Gurgaon which was fully loaded with all high end specifications. Subsequently, Mr. Arjun Puri, Director of the Developer met the Complainant and assured him that they had obtained all the requisite approvals. On 15.01.2013, the representative of the Developer visited the residence of the Complainant and collected a cheque of ₹10 lakhs for purchase of a 2 BHK flat plus servant quarter on a consideration of ₹7250/- per sq. ft. It is averred that the Representative of the Developer asked the Complainant to choose any category of flat as per his requirement and made him sign the blank application form. On 14.02.2013, it was informed to the Complainant that he had been provisionally allotted a 3 BHK flat, requesting for his acceptance in writing. The Complainant immediately wrote back to the Developer that the Complainant booked only 2 BHK flat +servant quarter flat. However, the Developer again sent a letter dated 25.02.2013 informing him that he was provisionally allotted a 3 BHK flat. It was clearly stated in the said letter that in case the Complainant did not accept the proposal in writing the allotment would stand cancelled automatically and the money deposited would be refunded by the Developer. The Complainant telephonically approached Mr. Martin Rui, representative of the Developer and told him that he was willing to purchase only a 2 BHK plus servant quarter flat. However, he was informed that a 2 BHK would then be available @ ₹8250/- per sq. ft. instead of ₹7250/- per sq. ft. as offered earlier. On 11.03.2013, the Complainant received a scanned copy of application form which was filled by Mr. Martin Rui. He was shocked to find that the said Mr. Martin Rui had written 3 BHK flat despite the fact that the Complainant had ticked on the category of "2 BHK+Servant Quarter flat". Complainant informed the Developer that he had filled the application form for "2 BHK + Servant Quarter" at inaugural/-pre-launch price of ₹7250/- per sq. ft. and had opted for payment schedule of "2 BHK flat". He categorically mentioned that in case the said Unit was not available with the Developer his deposited money would be refunded to him. However, despite that on 12.03.2013, the Developer informed him that a 3 BHK flat was finally allotted to him. They also sent a demand letter demanding payment of ₹17,57,375/- towards second instalment to be paid by 11.04.2013. The Complainant again approached the office of the Developer and again clarified that he had booked 2 BHK +servant quarter. On 17.04.2013, the Developer again sent a reminder demanding payment of ₹17,57,375/- towards second instalment as per 3 BHK payment schedule even though the "provisional allotment" of 3 BHK was never accepted by him and the same was informed in writing about the same. He expressed his unwillingness to pay the said instalment. On 27.04.2013, a 2 BHK flat bearing Unit No. B3-2803 was offered, instead of the earlier allotted unit No. A-3-1302. It was the last remained flat with increased amount of payments schedule including three Preferential Location Charges. The Complainant was not ready to accept the same and sought refund of his money. On 28.04.2013 he again received a call from the office of the Developer and was offered another option for purchase of a 2 BHK flat (Unit No. B3-1101) with 2 Preferential Location Charges. The Complainant was left with no option and was forced to agree as he was threatened that the entire money paid by him would be forfeited in the event of his not agreeing to the said offer. However, vide mail dated 17.07.2013 he was again threatened that he would have to agree for a 3 PLC unit or otherwise the allotment would be cancelled and his entire amount would be forfeited. Left with no other option he agreed for the same but only as per 2 BHK payment schedule.
3. It is stated that the allotment letter of the new unit i.e. B-1101 was received on 19.07.2013 by the Complainant along with payment schedule for a 2 BHK flat with first 3 installments as ₹10 lakhs, ₹17 lakhs and ₹18 lakhs respectively which was actually as per the payment schedule of a 3 BHK flat. the Developer asked him to pay ₹35 lakhs immediately as instalment which was not acceptable and was requested to send a payment schedule plan as per 2 BHK flat as agreed earlier. On 26.07.2013, the Developer mailed a statement of account demanding payment of ₹19 lakhs instead of ₹35 lakhs which was in accordance with 2 BHK payment plan along with interest. Complainant objected to the unilateral demand for interest and refused to pay any interest as the delay in sending the payment schedule as per 2 BHK flat was due to the default on the part of the Developer. On 02.08.2013 the Developer again approached him and agreed that he may deposit ₹6 lakhs immediately and ₹10 lakhs within a month as per 2 BHK payment plan. Complainant agreed to pay the sum of ₹19 lakhs in 3 installments of ₹6 lakhs, ₹10 lakhs and ₹3 lakhs respectively within 3 weeks on the condition that the Developer may disclose the service tax paid by them or otherwise refund the money deposited by him. However, despite repeated requests, the Developer did not furnish the proof of the amount of Service Tax against the flat and asked for a payment of ₹19,07,553/- as per 2 BHK payment plan along with the interest of ₹93,608/-. The Complainant again objected for levy of interest on the ground that the delay occurred on the part of the Developer. However, he was informed that he would have to pay interest otherwise his allotment would be cancelled and his deposited amount would be forfeited. On 26.08.2013 the Developer replied through email demanding payment of ₹19 lakhs and that they would consider the waiver of interest. On 26.09.2013 a cheque of ₹19 lakhs was sent to the Developer only on a clear understanding with the Developer that no interest would be levied on him and that Complainant would have to pay only as per agreed 2 BHK payment schedule. On 25.11.2013 Complainant received a Builder Buyer Agreement describing first three instalment as ₹10 lakhs, ₹17 lakhs and ₹18 lakhs respectively as per 3 BHK flat payment plan, despite the Developer repeatedly agreeing on mails dated 26.07.2013, 06.08.2013 and 29.09.2013 to charge demands only for 2 BHK. Complainant again wrote to the Developer thereby again clarifying that he has agreed to pay future instalments and had paid ₹19 lakhs as per 2 BHK payment plan with the agreement/consent of the Developer as recorded in their multiple e-mails. the Developer despite having agreed and received ₹19 lakhs as per 2 BHK payment plan, demanded another sum of ₹17 lakhs. On 02.12.2013 the Complainant requested them to send a fresh Builder Buyer Agreement for a 2 BHK flat as per Payment Plan applicable for 2 BHK unit. As he did not receive any reply from the Developer he refused to agree on the annexed payment plan as contained in the Builder Buyer Agreement. He cancelled the payment plan and made endorsement on the same that the said payment plan was not acceptable to him and signed it. In January, 2015 Complainant visited the office of the Developer in order to execute the fresh Builder Buyer Agreement for the new allotted 2 BHK flat (B3-1103). However, he was informed that the new agreement stands already executed. When he demanded copy of the same, he was shocked to find that the Developer committed forgery in the old agreement by tearing the Payment Plan Annexure where endorsement of "Not Acceptable" was written by the Complainant and instead affixed new payment plan annexure and re-pasted over it again. The Complainant categorically told the officials of the Developer including the Managing Director that the Buyer Agreement is clearly forged and that he would lodge an FIR against the Developer. On hearing this, the officials of the Developer tried to persuade the Complainant and agreed to settle all his claims. He succumbed to pressure as he was in India for a brief visit only.
4. It is stated that the License No. 68 dated Z1/06/2012 issued by the DTCP, Haryana to Second Opposite Party (hereinafter referred to as "Florentine Estates") and Step Realty Pvt. Ltd. and the same was valid upto 20.06.2016. Since no information was being provided by the Opposite Parties to the Complainant regarding the approvals/permissions granted for development of the said project, the Complainant filed an RTI application dated 23.07 2016 (which was received in the office of the DICP. Haryana on 29.07 2016) seeking details regarding the License No. 68 of 2012 issued by the DTCP to Florentine Estates. In its reply dated 16.08.2016 to the said RTI application, the office of the DTCP has informed to the complainant that License No. 68 of 2012 has been issued in favour of Florentine Estates. It has been further informed that no permission has been granted to Florentine Estates to enter into any Collaboration Agreement with the Developer and they do not have legal authority to enter into any collaboration agreement with each other for development of a residential project with respect to the licence No. 68 of 2012 dated 21.06.2012 issued by DTCP to Florentine Estates. It is averred that the Developer has no legal authority to enter into any sale agreement with intending buyers in the said project and to receive consideration from prospecting buyers. However, in spite of the fact that the Developer has no legal authority and/or permission to deal with the said project, they issued various newspaper advertisements in leading newspapers representing that they are developing a residential project named as "EMERALD BAY" at Sector 104, in Gurgaon, Haryana. It was represented on the part of the OPs that they have the legal authority/requisite approvals from DTCP to develop high end Apartment/Villa etc. in the said project. It was further represented on the part of OPs that the said project would have ultra luxury facilities and amenities having the best infrastructure facilities in Gurgaon and the said project is a hallmark of luxury. It is averred that the Developer was not entitled to receive the money since the license for the project has been issued to M/S FLORENTINE ESTATES and in favour of STEP Realty and hence the Developer has no authority to develop, construct and market the said project in the name of EMERALD BAY. Hence, acceptance of money from public at large for selling the flats is nothing but cheating and blatant violation of provisions of Haryana Development & Regulation of Urban Areas Act, 1975 and Rules made thereunder and the said act of the Developer is, therefore illegal, unlawful and amounts to unfair trade practice.
5. It is further averred that Section 2(d) of the Haryana (Development & Regulation of Urban Areas) Act, 1975 (hereinafter referred to as the Haryana Act of 1975) defines the term "colonizer" to mean an individual, company or association, body of individuals, whether incorporated or not owning land for converting it into a colony and to whom a license has been granted under this Act. Thus, the term as defined, requires that a colonizer must necessarily hold the land in its ownership to apply and get a license. In the present case, undeniably, till the filing of the Complaint, the Developer is neither owner of any part of the land comprised of Emerald Bay" project nor any license has been granted by the DTCP, Haryana in its name. Therefore, the Developer meets none of the essential conditions of a "Colonizer" as prescribed under Section 24 of the Haryana Act of 1975. It is further submitted that only in order to make illegal and unjust benefit the Opposite Parties herein have devised a novelty to circumvent the law in the manner that the license No.68 of 2012 which has been granted by the DTCP, Haryana in favour of Florentine Estates and others have unilaterally without any prior permission or approval from DTCP, Haryana have transformed the whole project to the Developer to act as the "Coloniser" without any authority of law. Vide Memo No. PF-51A/2015/2708 dated 18.02.2015, DTCP Haryana has laid down policy parameters for allowing change in beneficial interest viz. change in Developer, assignment of joint development rights and/or marketing rights etc. in a license granted under Haryana Development & Regulation of Urban Areas Act, 1975. Rule 17 of the said Rules of 1976 made under the said Act, as it was then stood, prohibited transfer of licence without prior approval of the DTCP. Even the beneficial interest could not be done without such prior approval. The DTCP, Haryana in response to RTI application vide its reply dated 16.08.2006 has also informed to the Complainant that no permission was granted to Florentine Estates to enter into Collaboration Agreement with the Developer in respect of the said licence. It was stated that as per the said of license issued by the DTCP, Haryana, the License No. 68 dated 2106/2012 was valid upto 20.06.2016 and the same has expired long back. It is stated that the acts and omissions committed by the Opposite Parties fall within the definition of unfair trade practice. Hence the present Complaint.
6. Both the Developer and Florentine Estates filed their joint Written Version taking the preliminary objection that under the terms and conditions agreed between the parties the matter has to be settled through Arbitration; it is stated that there is no unfair trade practice on their part; the disposal of present Complaint needs detailed and elaborate evidence and thus could be adjudicated only by a Civil court; the Complainant is a pure investor and is not covered within the definition of "consumer"; no cause of action arose in favour of the Complainant as no wrong has been committed by them and Complainant is estopped from filing the present Complaint due to his own act and conduct as he was in absolute knowledge of all the facts relating to the Licence No. 68 of 2012 and Florentine Estates being party to the Buyers Agreement. On merits all the allegations regarding unfair practices, deficient/negligence and unlawful acts against them have been denied; it is stated that the Complainant belongs to educated elite strata of society and he booked the subject unit after going through all the contents of the application form; Complainant be directed to furnish the copy of his latest passport to ascertain whether he is an Indian citizen or not; the Complainant is a pure investor as he has also invested in the projects of M/s Vatika Ltd. and M/s Ireo Ltd.; it is denied that any meeting was ever held by the Complainant with Mr. Arjun Puri; Complainant never met the representatives of the Developer rather he booked the subject unit through a broker i.e. Portfolio Realty Management Services; it is stated that the booking amount for a 2 BHK unit was ₹5 lakhs and for a 3 BHK unit was ₹10 lakhs and the Complainant had provided a cheque of ₹10 lakhs and a 3-BHK unit was allocated to him; the specifications elaborated in paragraph 4 of the Complainant was denied; the Complainant signed the Agreement after going through all the contents including the consideration amount; it is denied that the process of booking was completed within 3 days; as the Complainant provided a cheque of ₹10 lakhs a 3 BHK unit was allocated to him as per terms and conditions, however the Complainant had changed his mind regarding the unit subsequently due to huge demand in 2 BHK category; they offered him refund of the deposited amount but Complainant out of his own volition and to earn huge profits, on a smaller unit whose demand was huge, kept on pressing the Developer for allotment of a smaller unit; demand letter was issued to the Complainant as per the payment schedule agreed, accepted and opted by the Complainant; agreeing to the demand of the Complainant, they offered another unit, however, on his request again another unit was offered to him which was accepted by him; that fresh unit allotted to the Complainant was as per liking of the Complainant; the allegation regarding forfeiture of amount was denied; Complainant was asked to deposit the amounts of instalments as applicable to a 2 BHK unit which he had agreed to pay in two instalments; it is stated that they waived off the interest and demanded only principal amount from the Complainant; as the Complainant needed time to make payments, he kept on raising baseless issues with them; the perusal of all the e-mails exchanged between them and the Complainant would reveal only one factor that the Complainant is a very clever person and purely an investor and was just gaining time to earn huge profits on the booking amount which he could not earn and hence he raised frivolous issues; they never pressurized or forced the Complainant; all the demands were raised as per the agreed payment plans; the details of the Licence were mentioned in the Application Form as well as in the Buyers Agreement which were duly accepted and executed by the Complainant after going through the same carefully; both the Developer and Florentine Estates jointly entered into Buyers Agreement with the Complainant; Florentine Estates is an associate company of the Developer and adequate arrangements exist between them for the development of the project; all the requisite information had been submitted with the concerned authorities; all these facts were in the absolute knowledge of the Complainant as well as in the public domain; that the licence was in the name of Florentine Estates was in the absolute knowledge of the Complainant; the Opposite Parties got the Licence renewed till 20.06.2018; the Complainant was not misled; the Opposite Parties have already invested a sum of money in the development of the subject property; they have completed the project and would be delivering possession after receipt of Occupation Certificate in the next 6-9 months and therefore the Complainant is not entitled for any relief.
7. The Complainant in support of his case marked the copy of cheque dated 15.01.2013 for ₹10,00,000/-as Annexure C/1; copy of the letter dated 25.02.2013 issued by the Developer as Annexure C/2; copy of the emails dated 09.03.2013, 11.03.2013 and 13.03.2013 as Annexure C/3 collectively; copy of the letter dated 12.03.2013 issued by the Developer as Annexure C/4; copy of the e-mail dated 27.04.2013 and others exchanged between the Developer and reply sent by the Complainant as Annexure C/5 collectively; copy of demand note dated 01.05.2013 sent by the Developer as Annexure C/6; copy of the allotment letter for Unit No. B3-1101 dated 13.07.2013 as B3-1101 dated 13.07.2013 as Annexure C/7; copy of the e-mails exchanged between the Developer and Complainant on 19.07.2013 as Annexure C/8 collectively; copy of the e-mail dated 02.08.2013 sent by the Developer as Annexure C/9; copy of e-mail dated 16.08.13 and 26.09.13 as Annexure C/10; copy of the e-mails dated 23.08.2013, 24.08.2013 and 26.08.2013 exchanged between the Developer and Complainant as Annexure C/11 collectively; copy of the Builder Buyer's Agreement as Annexure C/12; copy of the relevant portion of the list of licenses issued by DTCP downloaded by DTCP, Haryana website as annexure C/13; copy of the RTI application dated. 23.07.2016 and DTCP reply dated 16.08.16 as Annexure C/14 collectively; copy of Memo. No. PF-51A/2015/2708 dated 18.02.15 issued by DTCP, Haryana as Annexure C/15 and copy of the receipts of payments made by Complainant to the Developer as C/16 collectively.
8. Opposite Parties in support of their case proved the following documents:- copy of Board Resolution dated 02.05.2014; copy of Board Resolution of Florentine Estate; copy of letter dated 11.04.2017 issued by DGTCP as Annexure R-1 and copies of photographs showing the status of the project as Annexure R-2.
9. We have heard the Learned Counsel for the parties and perused the material on record.
10. Admitted facts are that the Complainant Paid an amount of ₹75,53,217/- in total for a 2 BHK Flat No. B3-1103 in the project 'Emrald Bay' at Sector 104, Gurgaon, Haryana. Learned Counsel appearing for the Complainant vehemently contended that though the initial booking in the pre-launch period was for a 2 BHK and a cheque dated 15.01.2013 was also accepted by the agent of the Developer towards 2 BHK, the conditional offer of allotment was sent to the Complainant on 02.02.2013 for a 3 BHK, which offer was declined by the Complainant. It was submitted that after series of communication vide emails for a period of three months, the Developer demanded an amount of ₹35,00,000/- pending towards 3 BHK allotment, it was once again declined by the Complainant and he sought for refund of the money paid. It is the Complainant's case that the Developer had unilaterally converted the allotment of 2 BHK to 3 BHK thereby changing the payment plan and amounts after having received ₹29,00,000/- towards second instalment, which amounts to unfair trade practice. The second installment of ₹29,00,000/- was paid on an assurance given to the Complainant vide email that penalty and delayed period charges would not be demanded.
11. A perusal of the material on record, evidences that even after receipt of ₹29,00,000/- towards second installment, the Complainant received another notice demanding an amount of ₹17,00,000/-, in addition to the interest on delayed payment, which was due and payable for the earlier 3 BHK allotment. It is not in dispute that the Developer thereafter rectified the amount and asked the Complainant to pay ₹19,00,000/- towards third installment due and payable for 2 BHK and assured him that no further amount shall be demanded. It is seen from the record that after making the payment of ₹58,00,000/- in total, the Developer still demanded a balance of ₹17,00,000/- in addition to the interest as the accounting system was computerized and the Complainant had to make the payments as per 3 BHK plans and it was assured that later on the instalments would be lesser proportionately, which the Complainant declined. The new payment plan was annexed with the Builder Buyer Agreement dated December, 2013, which was not acceptable to the Complainant and therefore he had reverted to the Developer and sought for a meeting as he wanted the requisite change be made in the Builder Buyer Agreement, it is evident from the exhibits that between March 2014 and September 2014 no demands were made by the Developer. Subsequently, in the month of September 2014, there were three demands made for ₹14,00,000/-, ₹13,00,000/- and ₹12,00,000/- approximately demanding that the amounts to be paid immediately failing which the Complainant would be charged penal interest. Learned Counsel appearing for the Complainant argued that the statement also showed penalty interest and pending amount due for 3 BHK, which the Developer have clarified in March 2014, saying that the penalty was pending and all dues were clear.
12. Learned Counsel appearing for the Developer argued that the only grievance raised in the Complaint with respect to regarding the allotment of 3 BHK instead of 2 BHK, which is devoid of merit and a stale argument as interest waiver was given to the Complainant and in January, 2015 as special concession on the request of the Complainant himself his construction linked plan was converted to a 50:50 payment plan and therefore his grievance in addition to allotment of 3 BHK was barred by limitation.
13. From the exhibits marked and the photos filed by the Complainant, it is evident that the Complainant had initially booked for 2 BHK but the payments were demanded for 3 BHK as the Provisional Allotment Letter was given for 3 BHK and despite repeated protests and a series of emails, which was not denied by the Developer, the requisite correction with respect to payment plan was never made and this act of the Developer amounts to deficiency of service.
14. Now we address ourselves to the contention of the Complainant that the Developer had violated Clause 5 of the Building Plan Approvals and has collected the amounts and booked the units before the grant of Building Plan Approvals. It is argued that housing license No. 68 of 2012 under Section 3 of Haryana Development & Regulation of Urban Areas Act, 1975 (hereinafter referred to as "Haryana Act No. 8 of 1975") for the said project has been granted to Florentine Estates on 21.06.2012. It is the case of the Complainant based on the information received under RTI, that there is no registered Collaboration Agreement on record, which is supposed to be executed before concerned Sub Registrar between the Developer and the license holder/ land owning company in terms of the policy vide Memo No. PF-51A/2015/2708 dated 18.02.2015 and issued from the office of Director General Town & Country Planning, Chandigarh (DGTCP). Learned Counsel appearing for the Complainant further submitted that the Developer does not have copy of the approval/ permission granted by the DGTCP Chandigarh; that here is no document on record, which shows that any amount is paid or deposited towards administrative charges in compliance of Clause No. 3 of the aforenoted policy Memo; that there is no document on record to establish whether any approval was granted by DGTCP to the second Opposite Party for creating third party rights in favour of the Developer against housing license No. 68 of 2012 and therefore the Builder Buyer Agreement ought to have been executed by both the Opposite Parties, whereas, it was negligently executed by the Developer.
15. Learned Counsel appearing for the Opposite Parties vehemently contended that the Complainant was very much in the knowledge that the license issued to second Opposite Party was renewed by the same authority and that Occupation Certificate was also issued by the concerned authority, pursuant to which both the Opposite Parties have already offered possession to all the allottees and executed numerous conveyance deeds. He vehemently argued that the Complainant's prayer of the refund of the amount paid stood negated as the licenses were renewed, Occupation Certificate was obtained, possession was offered and conveyance deeds were executed with other allottees.
16. It is the case of the Opposite Parties that the refund was not sought on the ground of change of payment plan or the allotment of 3 BHK instead of 2 BHK, but it was sought on the ground that the license, which was issued in favour of second Opposite Party has lapsed and that there was no license in favour of first Opposite Party and hence first Opposite Party could not have sold the flats in contravention to provisions of Haryana Act No. 8 of 1975.
17. We find force in the contention of the learned Counsel appearing for the Opposite Parties that since the Occupation Certificate dated 21.11.2018 has already been issued by the concerned authority, the license was issued to the second Opposite Party has been renewed and numerous conveyance deeds have already been executed, the question of adjudicating on approvals and licences at this stage, does not arise. Now, we address ourselves to the contention of the Complainant that there was a delay in the handing over of possession of the unit.
18. A perusal of the Builder Buyer Agreement dated 28.12.2013, shows that the promised date of delivery of possession was 48 months from that date, which expires on 27.12.2017 and the additional grace period ended on 27.06.2018, the date on which there was no Occupation Certificate . It is seen from the record that batch of similar matters i.e. Consumer Complaint Nos. 3236 to 3239 of 2017 in Harish Chawla Vs. Puri Construction Private Limited & Anr. filed by the Complainants against the same Opposite Parties with respect to the same project was allowed in part directing for refund of the amount with 12% interest. The Hon'ble Supreme Court in Civil Appeal Nos. 4472-4475 of 2019, Puri Constructions Pvt. Ltd. & Anr. Vs. Harish Chawla Etc. preferred by the Opposite Parties has confirmed the order of this Commission but modified the rate of interest from 12% to 8% giving a period of 8 weeks from the date of order i.e. 07.05.2019 to the Opposite Parties to pay the amounts. As these matters have attained finality, on a pointed query from the Bench, learned Counsel appearing for the Opposite Parties submitted that they had preferred a clarification before the Hon'ble Supreme Court vide M.A. Dairy No. 23229 of 2019 in Civil Appeal No. 4472 of 2019 seeking the direction that the judgement in Harish Chawla (Supra) not to be treated as a binding precedent and be confined to the peculiar facts of that case. Learned Counsel appearing for the Opposite Party also argued that there was a delay of only 7 months and that the date of offer of possession is 23.01.2019, whereas the promised date of delivery as per Clause 11 of the Builder Buyer Agreement ended on 28.06.2018. He also submitted that this delay of 7 months should not strictly be construed as delay as force majeure conditions namely, orders passed by the National Green Tribunal, demonetisation etc. have led to this delay and hence the reasonable delay of 7 months in offering possession cannot be attributed to the Opposite Parties as they have diligently completed the construction.
19. The Hon'ble Supreme Court in Miscellaneous Application Nos. 1310-1313 of 2019 in Civil Appeal No. 4472-4475 of 2019 has observed as under:
"The order dated 7 May 2019 has been passed in the facts which were presented before this Court in CA Nos 4472-4475 of 2019. Hence, this does not amount to the expression of any finding on law or facts with regard to any other disputes pending before any other fora and which were not the subject matter of the above appeals."
20. In the aforenoted order the Hon'ble Supreme Court has noted that the order passed on 07.05.2019 does not amount to the expression of any finding of law or facts which is not the subject matter of above Appeals. In Harish Chawla (Supra) the period of delay was 15 to 18 months and the delay in the present case is approximately 7 months. This Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], which has since attained finality has observed that any delay beyond the promised date of the delivery Complainant can seek refund of the amount paid, however with respect to the peculiar facts and circumstances of this case, we are of the considered view that if the Complainant is interested in taking possession and the Opposite Parties waive of the interest and penalty amounts which have been charged since the record shows that there was an error in demanding payments of 3 BHK, when the correspondence communication shows that the Developer agreed that the payment plan towards 2 BHK, but have consistently and continuously demanded amounts towards 3 BHK without making the necessary correction, the delay cannot be safely attributed to the Complainant. Keeping in view the dates and communication involved in this case, viewed from any angle, it cannot be stated that the grievance in relation to 3 BHK is barred by limitation. There was no negligence on behalf of the Complainant in payment of the amounts therefore if the Complainant is interested in taking possession of the Apartment despite the admittedly delay the Developer can offer the same waiving all the interest and penalty amounts. In the alternative at the Complainant's discretion, the Opposite Parties shall refund the amounts deposited by the Complainant with interest @ 8% p.a. from the respective dates of deposit till the date of realisation, the interest rate which has been as modified by the Hon'ble Supreme Court in Civil Appeal Nos. 4472-4475 of 2019, together with costs of ₹25,000/-. Time for compliance four weeks from the date of receipt of a copy of this order failing which, the amount shall attract interest @ 10% p.a. for the same period.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER