IMPORTANT POINTS
1) If the construction wasn’t complete and not in habitable condition, then issue for fit out possession notice by the Opp. Party was not proper.
2) Without obtaining Occupancy Certificate from the statutory authority, possession notice could not be given.

ORDER

Heard Ms. Monika Shahi, Advocate, for the complainants and Mr. Prabhakar Tiwari, Advocate, for the opposite party, through video conferencing.

2. Sunil Monga and others (the complainants) filed this complaint for directing Parsvnath Developers Limited (the opposite-party), (hereinafter referred to as the builder) (i) to refund an amount of Rs. 2,63,01,614/- (principal amount of Rs.1,04,28,761/- + interest of Rs. 1,58,72,853/-) along with pendent lite and future interest @ 18% per annum, (ii) to pay exemplary damage of Rs.10,00,000/-, (iii) to pay the cost of litigation and (iv) any other relief which the Commission deems fit and proper, in the circumstances of the case, be passed.

3. The facts as stated in the complaint are that the builder was a company, engaged in the business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder launched for construction of residential complex in the name of “Parsvnath Exotica” at village Wazirabad, in Sector-53, Gurgaon, Haryana, in 2012. The complainant booked a 3BHK flat, admeasuring of 2810 Sq. ft, in “Parsvnath Exotica” in June, 2006 and was allotted Flat No. D-5-GO-1. Basic price of the flat was Rs.1,30,00,000/- (at the rate of Rs. 4021.35 per sq. ft.). The complainants deposited Rs. 7,32,531/- on 05.06.2006, Rs. 14,65,074/- on 23.06.2006, Rs. 16,65,054/- on 31.08.2006, Rs. 1025545/- on 18.11.2006. (total Rs. 48,88,203.63/-), up to execution of Flat Buyer Agreement (for short FBA), on 16.01.2007. The complainants initially opted for “Construction Link Plan” but later on they opted for “Down Payment Plan With 8% Rebate” under which 15% of sale consideration has to be paid at the time of booking, 72% of sale consideration + PLC+ Car Parking, within 45 days of booking and 5% at the time of offer of possession. The complainants deposited Rs. 55,40,557/- on 17.01.2007, vide Receipt No. 50042661. He had to deposit only 5% of the sale consideration at the time of notice for possession. In clause-10 (a) of the FBA, promised date of possession was mentioned as 36 months with grace period of six months, from the date of commencement of the construction of particular block, in which the flat was located. The tower, in which, the complainants were allotted flat, was shown to be a part of the main complex, in the construction plan and site lay out, at the time of booking, afterward this tower was constructed separately from the rest of the tower along with two more towers, due to which value of the flat of the complainants was diminished. The complainants were repeatedly making inquiry from the opposite regarding completion of the construction and delivery of possession, after expiry of the promised period of possession but no satisfactory reply was given. Due to unreasonable delay in delivery of the possession, the complainants requested to return their money of Rs. 1,04,28,760/- along with interest, through email dated 15.04.2015, but no reply was given. Due to inordinate delay in delivery of possession, complainant-3, who was a 92 years old man, was compelled to live in a rented accommodation, on heavy rent. On these allegations, this complaint was filed on 27.04.2015.

4. The builder filed its written reply on 14.10.2015 and contested the complaint. In written reply, they admitted booking, allotment of Flat No. D-5-GO-1 (size 2810 Sq. ft.) to the complainants, deposit of total Rs. 1,04,28,760/ and execution of Flat Buyer’s Agreement on 16.01.2007. However, it has been stated that draft of Flat Buyer’s Agreement was handed over to the complainants on 10.06.2006 but they signed it on 16.01.2007. It has been stated that M/s. Puri Construction, M/s. Florentine Estates of India, M/s. MAD Entertainment Network Ltd., Mr. Sunil Manchanda, Mr. Arjun Puri, Mr. Mohinder Puri and Mr. Ram Prakash were owner of the land, over which the project was constructed. The builder entered into agreements dated 24.11.2004,