IMPORTANT POINT
Builder is bound to refund money with interest in case of failure to deliver possession of flat.

V.K. Jain, Presiding Member—The complainants who are husband and wife, booked a residential flat with the OP in a project namely Anthea Floors which the said OP was to develop in Gurgaon. Flat No. 0010 in Block F of the aforesaid project was allotted to them vide allotment letter dated 02.08.2011, for a total consideration of Rs.1,86,35,339/-. The parties then entered into a Buyers Agreement on 18.10.2011, incorporating their respective obligations. As per clause 4(a)(i) of the Buyers Agreement, the possession was to be delivered within 36 months of signing of the Buyers Agreement i.e. on or before 18.10.2014. The grievance of the complainants is that despite they having paid as much as Rs.1853108/-, the OP has failed to even offer possession of the flat to them. The complainants are therefore, before this Commission seeking refund of the amount paid by them alongwith interest @ 18% per annum and compensation for mental agony etc. quantified at Rs.12 lacs.

2. The complaint was resisted by the OP primarily on the ground that they had submitted a revised lay-out plan on 19.09.2011 which was not approved. It is also alleged that the Haryana Government was illegally demanding EDC for approval of the revised lay-out plan and the said demand has been challenged before Punjab & Haryana High Court which has stayed the said demand.

It is also alleged in para 9 of the written version filed by the OP that in terms of clause 4(e) of the Buyers Agreement, the complainants are entitled to refund alongwith interest @ 12% per annum whereas they are claiming interest @ 18% per annum.

3. The first question which arises for consideration in this case is as to whether the possession of the flat allotted to the complainants could not be delivered for the reasons beyond the control of the OP. Admittedly, the revised lay-out plan to Haryana Government was submitted by the OP after the booking had already been made by the complainants on the basis of the approval available at the time of the said booking. The revised lay-out plan came to be submitted on 19.09.2011 whereas the booking by the complainant was made on 02.08.2011. In the Buyers Agreement executed on 18.10.2011, the OP inter-alia stated that they proposed to develop a Colony known as Wildflower Country in Sector-70, Gurgaon comprising of Plots, Villas, Floors, Group Housing, Commercial Complexes etc. in accordance with the licenses granted by the Director General, Town and Country Planning, Haryana from time to time. The aforesaid statement contained in the Buyers Agreement implied that the OP did possess the requisite license from the Director General, Town and Country Planning, Haryana.

4. The OP itself has alleged in para 7 of the written version that the project Anthea Floors was a part of the license no. 66 of 2011 dated 21.07.2011 and the lay-out plan for the said project was approved by the competent authority on 21.07.2011.

Despite the OP having already submitted a revised plan on 19.09.2011, the said fact was not disclosed in the Buyers Agreement dated 18.10.2011. Moreover, had the OP not sought to revise the lay-out plan, there would have been no necessity of going back to the Town and Country Planning Department for a revised approval. Therefore, it was on account of the decision taken by the OP to revise the lay-out plan for the project could not take off on account of EDC having been demanded by Haryana Government. Hence, it cannot be said that the possession of the flat could not be offered to the complainants on account of reasons beyond the control of the OP. In any case, the OP could have first deposited the EDC demand by Haryana Government and then challenged the demand, instead of challenging the demand at the very threshold. Had such course of action been adopted, it would have been possible for the OP to complete the development of the project.

5. Clause 4(e) of the Buyers Agreement reads as under:

4.e Inability to offer floor:

That if for any reason whatsoever,