NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Deepa Sharma, Presiding Member
Sudha and Ors. – Complainants
versus
Jaiprakash Associates Limited – Opp. Party
Consumer Case No.2804 of 2017
Decided on 29.4.2021

IMPORTANT POINT
“Where after of possession is made along with occupation certificate even of there is delay in said after the allottees of flat cannot refuse to take possession.”

Headnote:

Consumer Protection Act, 1986 – Sections 21 and 2(1)(g) : [Consumer Protection Act, 2019 – Sections 58 and 2(11)] – Allotment of flat – Delivery of possession – Dispute as to – Refund to take possession – Complainants had booked one flat in Garden Isles in year 2013 which was to be completed within four years – However, before expiry of four years, they had booked the subject flat in Imperial Courts project and subsequently sought cancellation of earlier booked Garden Isles flat – And also sought transfer of money they had paid against Garden Isles flat in the account of Imperial Courts – Complainants had also raised certain objections relating to Garden Isles flat – However, no report from a qualified architect specifying defects on account of which complainants were not willing to take possession, has been filed – Where offer of possession is made along with occupation certificate even if there is a delay in the said after, the allottees cannot refuse to take the possession – There is no delay in after of possession and complainants have since failed to give any valid reason to refuse to take possession, thus such refusal to take possession and refund sought in facts and circumstances of care held not justifiable – Complainants also have failed to prove any fact on record to show that opposite party had adopted on unfair trade practice or that the agreement was biased – Relief sough by complainant cannot be granted.

Held: In the present case, mere averment that the Complainants were forced or induced are made and no specific allegation has been made by the Complainants. Rather, the facts of the case go to show that the Complainants have been acting voluntarily. During the existence of the allotment of their flat in Garden isles project, they booked another flat in Imperial Courts and finding difficult in paying installments towards Imperial Courts flat, they sought cancellation of the allotment of the flat in Garden Isles even before the period within which the possession of the said flat was to be handed over to them and requested for transfer of the money paid against the said flat in the account of Imperial Courts. The Complainants have relied on judgment of this Commission in “Ramesh Malhotra & Ors. vs. Emaar MGF Land Limited & Anr. decided on 29.06.2020 in Consumer Complaint No.438 of 2019”. The facts in that case are entirely different from the case before me. In Ramesh Malhotra’s case (supra), there was a delay of about 1 year and 2 months in offering the possession while there is no delay in the present case.

The Opposite Party on the other hand has relied on the findings of the Hon’ble Supreme Court in “Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., Civil Appeal No.5785 of 2019 decided on 11.01.2021. It is argued that the three judges bench of the Hon’ble Supreme Court in Abhishek Khanna’s case (supra) had even directed the allottees to take possession of the flat wherein the offer of possession was delayed and in this case, there was no delay in offer of possession. It has relied on para 21.1 of the said judgment which is reproduced as under:

“21.1 The issue which now arises is whether the apartment buyers are bound to accept the offer of possession made by the Developer where the Occupation Certificate has been issued, along with the payment of Delay Compensation, or are entitled to terminate the Agreement.

The factum of delay in completing the construction and making the offer of possession is an undisputed fact in this case.”

It is clear from the findings of the Hon’ble Supreme Court in Abhishek Khanna’s case (supra) that where the offer of possession is made along with Occupation Certificate, even if there is a delay in the said offer, the allottees cannot refuse to take the possession. In the present case, there is no delay in the offer of possession and the Complainants have since failed to give any valid reason and also there exists no valid reason/ground for the Complainants to refuse to take possession and terminate the contract, the refusal of take possession and refund sought in the facts and circumstances of the case is not justifiable. The Complainants have failed to prove any fact on record to show that the Opposite Party had adopted an unfair trade practice or that the agreement was biased or one sided.

The relief claimed qua Garden Isles flat is naturally time barred, but the Complainant’s claim is unwarranted.

In view of the above discussion, it is apparent that the relief sought by the Complainants cannot be granted. The Complaint stands disposed of in these terms. (Paras 13 to 17)

Result: Complaint Disposed of.