IMPORTANT POINT
Denial of possession despite payment is deficiency in service.

V.K. Jain, Presiding Member—The complainant booked a residential flat with the opposite party in a project, namely, “Exotica” which the opposite party was developing in Ghaziabad, UP. A flat bearing No.C-1-301, admeasuring about 2160 sq.ft. in the aforesaid project was allotted and the parties entered into a flat buyers agreement dated 12.7.2008 which incorporated their respective obligations. In terms of clause 10(a) of the buyers agreement, the construction was likely to be completed within 36 months from the commencement of the particular tower in which the flat was to be located, on receipt of sanction of building plans/revised building plans and approvals of the concerned authorities. Since the construction of the flat allotted to the complainant was delayed, he entered into a Memorandum of Understanding on 20.4.2012 with Parsvnath Buildwell Pvt. Ltd., which is a Special Purpose Vehicle stated to have been created for speeding up the development of the aforesaid project. Under the said MOU, the complainant agreed to accept interest @ 9% p.a. starting from 1.5.2012. The interest for the period from 16.5.2011 to 30.4.2012 was paid to him by way of a chque. Since the completion of the flat allotted to the complainant is nowhere in sight, he is before this Commission seeking refund of the amount of Rs.5282550/- paid by him to the opposite party along with compensation, etc.

2. The complaint was resisted by the opposite party which has admitted the allotment made to the complainant as well as the execution of the buyers agreement with him. It is alleged in the written version filed by the opposite party that on 28.10.2004, they had entered into a development agreement with a company, namely, M/s Devidayal Aluminum Industries Pvt. Ltd. and .some other land owners where under the land owners were entitled to 23% of the sale proceeds whereas the remaining sale proceeds were to be retained by the opposite party for the purpose of construction and development. It is further alleged that on 17.3.2007, the building plans and site plans were approved by Ghaziabad Development Authority and on 28.12.2010 the OP set up Parsvnath Buildwell Pvt. Ltd. a Special Purpose Vehicle to speed up the construction and development activities. It is further alleged that thereafter the opposite party along with M/s Devidayal Aluminum Industries Pvt. Ltd. entered into an Assignment of Development Rights Agreement dated 28.12.2010. It is also alleged that pursuant to GDA enhancing the floor area in all the projects, revised building plans were submitted by the opposite party so as to avail the revised FAR of 250 but the said revised building plan is still under consideration of GDA. Thus in nutshell, it is an admitted position that the construction of the flat allotted to the complainant is not likely to be completed in near future since even the revised plans submitted by the opposite party are yet to be approved. Since the opposite party has failed to perform its contractual obligation of delivering the possession of the flat allotted to the complainant, he cannot be compelled to wait indefinitely till the revised layout plan if at all, is approved by GDA and thereafter construction of the flat allotted to the complainant is completed. The complainant in such circumstances is entitled to obtain refund of the amount paid by him along with appropriate compensation. Moreover, the delay in completion of the project, in my opinion, has happened on account of the desire of the opposite party to avail a higher FAR by submitted revised layout plans which are yet to be approved. Had the opposite party not sought to avail the increased FAR, and restricted to the FAR permitted at the time of sanction of the building plans, the construction could probably have been completed by now.

3. The next question which arises for our consideration is as to what should be the quantum of compensation to be awarded to the complainant. No evidence has been led by t