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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
V.K. Jain, Member
SUNIL KUMAR S/O PRITHVI SINGH - Appellant
Vs.
RAMPRASTHA SARE REALTY PVT LTD - Respondent
Consumer Case No. 619 of 2017
Decided On : 03-12-2018
Construction Delay - Real Estate - RERA - [Consumer Protection Act, 1986 - Section 12(1)(c), Real Estate (Regulation and Development) Act, 2016 - Section 18, Real Estate (Regulation and Development) Act, 2016 - Section 19] - The court discussed the default in meeting contractual obligations, the impact of RERA regulations on the contractual obligations, and the entitlement of the complainant to seek refund and compensation due to the delay in possession. The court emphasized the contractual obligation of the developer and the impact of abnormal delay on the complainant's rights.
Fact of the Case:
The complainant booked a residential flat in a project and sought refund and compensation due to the delay in possession and incomplete construction.
Finding of the Court:
The court found that the complainant was not in default in meeting payment obligations and was entitled to seek refund and compensation due to the delay in possession.
Issues: Default in meeting contractual obligations, entitlement to seek refund and compensation, impact of RERA regulations on contractual obligations.
Ratio Decidendi: The developer's contractual obligation, impact of abnormal delay on the complainant's rights, entitlement to seek refund and compensation.
Final Decision: The court directed the opposite party to refund the principal amount to the complainant along with compensation in the form of simple interest and pay the cost of litigation to the complainant.
JUDGMENT/ORDER :
V K Jain,,Presiding Member - The complainant booked a residential flat with the OP in a project, namely, "Crescent ParC" , which the OP was to develop in Sector 92 of Gurgaon. Flat No.P020601 in Building No.P02 of the aforesaid project was allotted to him for a total consideration of Rs.9339600/- which included allied charges amounting to Rs.18018000/-. The following was the payment plan agreed between the parties:-
| "Stilt + 19 floors Building | ||
|
| Plan A "Construction Link Plan | Percentage |
| 1 | At the time of booking | 10% of SP |
| 2 | Within 60 days of booking | 10% of SP |
| 3 | On commencement of construction | 10% of SP |
| 4 | On start of Plinth level of Tower in which unit is booked | 7.5% of SP + 25% Allied charges |
| 5 | On start of 3 Floor Roof Slab of Tower in which unit is rd booked | 7.5% of SP |
| 6 | On start of 6 Floor Roof Slab of Tower in which unit th is booked | 7.5% of SP + 25% Allied charges |
| 7 | On start of 9 Floor Roof Slab of Tower in which unit is th booked | 7.5% of SP |
| 8 | On start of 12 Floor Roof Slab of Tower in which unit th is booked | 7.5% of SP + 25% Allied charges |
| 9 | On start of 15 Floor Roof Slab of Tower in which unit th is booked | 7.5% of SP |
| 10 | On completion of super structure frame works | 7.5% of SP |
| 11 | On competition of internal plaster of Tower in which the unit is booked | 5% of SP |
| 12 | On start of plumbing, flooring and tiles work | 7.5% of SP + 25% Allied charges |
| 13 | On offer of possession | 5% of SP" |
2. The parties executed an agreement dated 20.9.2012 incorporating their respective obligations in respect of the aforesaid transaction. In terms of clause 3.3 of the said agreement, the possession was to be delivered within 36 months from the commencement of construction, though a grace period of six months was also available to the OP. According to the learned counsel for the OP, the construction commenced on 10.12.2012. The grievance of the complainant is that the possession has not been even offered to him and the construction is not complete, despite he having already paid Rs.8516413/- to the OP. The complainant is therefore, before this Commission seeking refund of the aforesaid amount along with compensation etc.
3. The complaint has been resisted by the OP which has admitted the allotment made to the complainant as well as the payment received from him. It has been alleged that there was an outstanding amount of Rs.385913/- against the complainant, which he did not pay, despite reminders dated 16.1.2015 and 11.3.2015.
4. Going by the date, given by the learned counsel for the OP, the construction of the flat should have been completed by Dec., 2015 or latest by June, 2016 even after availing the grace period of six months. It is an admitted position that even today the construction of the flat is not complete. The learned counsel for the OP states that some finishing work such as lying of tiles has still left and they are yet to apply for obtaining the requisite Occupancy Certificate. He further states that in terms of the time granted under RERA, the OP can complete the construction of the project by March 2019.
5. The first question which arises for consideration is as to whether there was a default on the part of the complainant in meeting his contractual obligation with respect to the sale consideration to the OP. As would be seen from the payment plan agreed between the parties, the complainant was to pay 5% of the sale price at the time of offer of possession. The said stage is yet to reach. The case of the OP is that there was an outstanding amount of Rs.385913/- against the complainant. Since the 12th instalment envisaged payment of 7.5% of the sale price plus 25% allied charges, it is evident that the entire 12th instalment has not been paid and only part payment of t
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