IMPORTANT POINT
Refund of amount deposited directed to be paid to allottee for failure of non-delivery of apartment allotted.

ORDER

This consumer complaint has been filed by the complainant Aerostar Helmets Pvt. Ltd. alleging deficiency on the part of the opposite party Adani M2K Project LLP.

2. The brief facts of the case are that the complainant booked Apartment No. G-1502 at 15th floor on 06.2.2013 in a building proposed to be built by the opposite party. The Apartment Buyer Agreement was signed on 31.08.2013. Against the total consideration of the apartment, the complainant paid total sum of Rs.2,34,24,181/- in the period 2013-2015. The possession was due on 01.09.2017. It is the case of the complainant that the building was constructed only upto 10th floor and the opposite party informed the complainant on 06.10.2017 that the apartment allotted to the complainant on 15th floor will not be constructed and alternative apartment was offered to the complainant. It is the further case of the complainant that the complainant had paid Preferential Location Charges (PLC) of about Rs.12,00,000/- for the said apartment and therefore, the complainant did not agree for the alternative apartment. The complainant then requested for a refund of the amount deposited with the opposite party along with 21% p.a. interest. The opposite party agreed to refund the principal amount paid by the complainant, however, did not agree to give any interest on the said amount as per the conditions of the Apartment Buyer Agreement. Hence, the present complaint has been filed with the following prayers:-

“(a) to handover to the complainant lawful possession of Apartment No.G-1502, Oyster Grande situated within the revenue estates of village Khedki Mazra, Sector-102/102A, District Gurgaon, Haryana, complete in all respects as per specification contained in the Apartments Buyer Agreement and in accordance with law, along with adequate compensation for the period of delay from the committed date of possession till the date lawful possession is actually handed over to the complainant,

Or

to refund to complainant the entire amount of Rs.2,34,24,181 paid by complainant together with interest thereon at least at the rate of 21% per annum with effect from the date/s of receipt by Opposite Parties till the date/s of realisation by complainant,

Or

(b) to pay to complainant compensation of at least Rs.2,00,00,000 and also adequate compensation for the future, till possession/refund is given to complainant;

And

(c) to pay to complainant costs of proceedings throughout.

Any other or further order/s which this Hon’ble Commission may deem fit and proper may also be passed in favour of the complainant.”

3. The complaint has been resisted by the opposite party by filing the written statement. The opposite party stated that the agreement was signed on 31.08.2013 and including the grace period the possession was to be given in 54 months i.e. by 28.02.2018. The opposite party offered an alternative similar apartment in the same project and in the same vicinity at the same price to the complainant before the due date of possession. The complainant did not agree for allotment of alternative apartment for which the occupation certificate was already obtained and requested for refund of the amount paid along with 21% interest per annum. This demand of refund along with interest has been contested by the opposite party on the ground that as per the provision of the Apartment Buyer Agreement, if the alternative apartment is not accepted by the complainant then the opposite party will refund the amount paid by the complainant without any interest.

4. Both the parties have filed their evidence by way of affidavits which have been taken on record.

5. Heard the learned counsel for the parties and perused the record. The main argument of the learned counsel for the complainant is that the substantial amount about 72% of the total consideration of the apartment was paid to the opposite party, but the opposite party never informed that the allotted apartment No. G-1502, on 15th floor of the building