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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Rajvir Singh Rana and Anr. – Complainants
versus
Pioneer Urban Land & Infrastructure Ltd. – Opp. Party
Consumer Case No.1805 of 2018
Decided on 24.7.2019
For the Complainants:Mr. Aditya Parolia and Mr. Nithin Chandran, Advocates
For the Opp. Party:Ms. Gayatri Gulati, Ms. Sneh Dhillon and Mr. T.V.S. Raghavendra Sreyas, Advocates
IMPORTANT POINT
The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.
Headnote:
Consumer Protection Act, 1986—Section 19—Complainants booked a high end residential flat - parties executed Apartment Buyers Agreement - possession was not offered—Deficiency - complainants approached NCDRC seeking refund of the amount of Rs.4,43,08,486/- complaint opposed by the opposite party - complainants entitled to refund of the amount paid by them alongwith compensation—Appeal Allowed. (Paras 2, 7, 8 and 9)
Result: Appeal allowed.
ORDER
V.K. Jain, Presiding Member
The complainants who are residents of Gurgaon booked a high end residential flat with the OP in a project namely ‘Araya’ which the OP was to develop in Sector-62 of Gurgaon. The booking was made on 27.03.2012. Unit No.A-601 in Tower-A of the aforesaid project was allotted to the complainants for a consideration of Rs.4,75,27,981/-. The parties then executed an Apartment Buyers Agreement dated 25.05.2012, incorporating their respective obligations. As per clause 11.2 of the said agreement, the developer was to make all efforts to apply for the Occupancy Certificate within 39 months from the date of excavation, thought it was also entitled to a grace period of 180 days, after expiry of the said 39 months period. The grace period was available for applying and obtaining the requisite Occupancy Certificate. Admittedly, the excavation started on 04.06.2012. The construction therefore, ought to have been completed and the developer ought to have applied for the Occupancy Certificate on or before 04.09.2015. The possession was not offered to them, the complainants approached this Commission seeking refund of the amount of Rs.4,43,08,486/- which they have already paid to the opposite party.
2. The complaint is stated to have been opposed by the opposite party primarily on the grounds which this Commission has already rejected in some other consumer complaints including Consumer Complaint No.238 of 2017 – Geetu Gidwani Verma & Anr. Vs. Pioneer Urban Land & Infrastructure Ltd. and Consumer Complaint No.239 of 2017 – Govindan Raghavan & Anr. Vs. Pioneer Urban Land & Infrastructure Ltd. decided on 23.10.2018. It is also alleged in the written version that the complainants seem to be speculator they being residents of Magnolia in Gurgaon. This is also the case of the opposite party that the Occupancy Certificate in respect of the tower in which the allotted flat is located was obtained by them on 23.7.2018 and thereafter the possession of the allotted flat was offered to the complainants vide letter dated 28.8.2018.
3. The OP preferred appeals against the above-referred decision of this Commission being Civil Appeal No.12238 of 2018 and Civil Appeal No.1677 of 2019. The said appeals were dismissed by the Hon’ble Supreme Court vide a common dated 2.4.2019. To the extent it is relevant, the order reads as under:-
“3.1. ……As per Clause 11.2 of the Agreement, the Appellant – Builder was to make all efforts to apply for the Occupancy Certificate within 39 months from the date of excavation, with a grace period of 180 days.
3.2. The excavation of the project commenced on 04.06.2012. As per Clause 11.2 of the Agreement, the Builder was required to apply for the Occupancy Certificate by 04.09.2015, or within a further grace period of 6 months i.e. by 04.03.2016, and offer possession of the flat to the Respondent – Flat Purchaser. The Appellant – Builder however failed to apply for the Occupancy Certificate as per the stipulations in the Agreement.
3.5. During the pendency of the proceedings before the National Commission, the Appellant – Builder obtained the Occupancy Certificate on 23.07.2018, and issued a Possession Letter to the Respondent – Flat Purchaser on 28.08.2018.
3.6. The Appellant – Builder submitted before the National Commission that since the construction of the apartment was complete, and the Occupancy Certificate had since been obtained, the Respondent – Flat Purchaser must be directed to take possession of the apartment, instead of directing refund of the amount deposited.
3.7. The Respondent – Flat Purchaser however submitted that he was not interested in taking possession of the apartment on account of the inordinate delay of almost 3 years. The Respondent – Flat Purchaser stated that he had, in the meanwhile, taken an alternate property in Gurugram, and sought refund of the entire amount of Rs.4,48,43,026/- deposited by him along with Interest @18% p.a.
6.1. In the present case, admittedly the
