The court upheld the validity of the complainants' apprehension about the disputed land, justifying their request for a refund, and found the forfeiture of earnest money clause inapplicable due to valid reasons for withholding instalments.

JUDGMENT/ORDER :

Prem Narain, Presiding Member

1. This consumer complaint has been filed by the complainants Mrs. Bimla Dalmia & anr. against the opposite party.

2. It has been alleged in the complaint that the complainants have purchased the apartment from the original allottee under the project "Paras Quartier" Sector -2, Gurgaon, Haryana of the opposite party. On 22.12.2012, the opposite party issued letter of allotment in favour of the original allottee i.e. Hemant Kumar Bhagat. The complainants paid Rs.45, 00, 000/- to the first allottee and Rs.38, 00, 000/- to the opposite party vide cheque dated 27.12.2012. Through letter of endorsement on 28.1.2013, the opposite party endorsed the allotment to the present complainants. Then complainants paid further amounts on different dates. Finally, complainants had paid Rs.1, 62, 00, 619/- as against the total consideration of Rs.4, 01, 25, 000/- by 05.07.2014. It has been alleged that the building is being constructed on the encroachment over a drain (nala), therefore, the complainants are not interested in taking any flat which will be involved in dispute. The complaint has been filed for refund of the amount and in the alternative for the possession.

3. The complaint has been resisted by the opposite party by filing written statement on the ground that the complaint was premature as the period of construction was not over on the date of filing the complaint as per builder -buyers agreement signed between the parties. As per the builder-buyers agreement, the period of construction is for 42 months to be extended by six months and the complaint has been filed before this period. It was further stated that all the approvals and the site location was inspected by the complainants/allottees as is evident from Clause No.1 of the builder-buyers agreement. Moreover, it was also stated that there is no dispute over the land and the matter has been sorted out by the Municipal Authority. The land is clear from all encumbrances. It was requested to dismiss the complaint on the grounds mentioned in the written statement.

4. Both the parties filed affidavits of their evidence.

5. Heard the learned counsel for both the parties and perused the record. Learned counsel for the complainants stated that the opposite party has built the project on a drain, which is illegally occupied by opposite party. The matter was even reported in the local press also. Nobody would like to have such an apartment, which is built on the disputed land, therefore, the complainants want to pull out from this project as quickly as possible. It was further stated by the learned counsel that the matter was pending in National Green Tribunal and Hon'ble High Court, therefore, the complainants are not sure when the legal possession will be handed over. The builder-buyer agreement was executed on 10.09.2013. As per Clause 3.1 of the builder-buyer agreement the possession was to be handed over within 42 months from the date of agreement with a grace period of six months. Even if the grace period is included, the possession was due on 10.09.2017. Thus, now the complaint is not premature and the same can be decided. It was further requested by the learned counsel for the complainants that the complainants are finally not interested in taking the apartment as the apartment is being built on a disputed land and the complainants want only refund of the amount paid.

6. Learned counsel for the complainants further stated that the argument of the opposite party in respect of forfeiture of the earnest money is not justified as the opposite party was itself deficient in many ways. First of all the land is disputed, moreover, the construction was not proceeding as per the plan and the project was not ready for delivery of possession on the due date. In support of his arguments, learned counsel referred to CCNo.282 of 2015, Jasvinder Kaur Vs. Parsvnath Developers Ltd., decided 08.02.2017, (NC), wherein the following has been observed:-

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