IMPORTANT POINT
Promised date of delivery – after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant’sright to seek for refund of the principal amount with interest and compensation.

ORDER

The present Consumer Complaint has been filed under Section 21(a) of the Consumer Protection Act, 1986 (for short “the Act”) by Mr. Anuj Biswas and Mrs. Somara Biswas (hereinafter referred to as the “Complainants”) against Opposite Parties, M/s. Kapstone Construction Pvt. Ltd. (hereinafter referred to as the “Developer”) and M/s. ICICI Bank (hereinafter referred to as the “Bank”) seeking refund of the amount paid towards purchase of Residential Apartment in the Project, namely “Rustomjee Urbania Azziano” along with interest as the Opposite Party Developer has failed to complete the Project and hand over the possession of the Apartment to them within stipulated time.

2. The facts as narrated in the Complaint are that the Complainants, husband and wife, had purchased one self-contained Residential Flat bearing No. 1203 on the 12th floor in Wing G admeasuring 69.77 sq. mtrs for a total Sale Consideration of 1,32,17,203/- in the Residential Project under the name and style as “Rustomjee Urbania Azziano” (hereinafter referred to as the “Project”) supposed to be developed by the Opposite Party Developer near Majiwadi Flyover, Mumbai – Nashik Bypass Highway, Majiwadi, Thane (West) Mumbai. Accordingly, an Agreement for Sale (hereinafter referred to as the “Agreement”) was executed between the parties on 16.08.2013. Complainants initially paid an amount of 15,74,455/- to the Opposite Party Developer through Cheque Nos. 004035 dated 30.03.13 for 5,00,000/- and Cheque No.032549 dated 08.06.2013 for 10,74,455/-. It is averred that since the Building (Azziano, Wing G) was mortgaged with the ICICI Bank, the Complainants were asked to avail of financial assistance from the ICICI Bank. Under the Subvention Scheme, the Complainants obtained a loan of 99,37,366/- from the ICICI Bank which was released in one installment to the Opposite Party Developer on 17.09.2013. It is stated that the Complainants were not informed that the entire loan amount would be released to the Developer in one installment only in the very initial stage of Project in the year 2013 when excavation work was just started and the payment was linked with construction stage. As a result of this, the Complainants are burdened with huge interest amount and suffered a huge financial loss.

3. It is further alleged that at the time of flat booking in April, 2013, the Complainants were informed that the Flat in question would be handed over by 31 st December, 2015 and maximum by a grace period of six months but in the actual Registration Document, the date of handing over the possession was indicated as 31.12.2016 without the information of the Complainants. Clause 9.1 of the Agreement is reproduced as under:-

“9. Possession:

9.1 The possession of the premises shall be delivered to the purchaser after the premises is ready for use and occupation provided all the amounts due and payable by the Purchaser under this Agreement and the stamp duty and registration charges in respect of the Premises are duly paid by the Purchaser. The Developer expects to give possession of the premises to the Purchaser on or before 31.12.2016 (with the further grace period of 12 (Twelve) months, subject to what is stated and agreed hereinabove.”

4. It is further averred that at the time of signing of the Agreement, the Tower was supposed to be 28 stories, however, later on the Developer managed to get sanction for construction of 6 additional floors without the consent of the Allottees which amounts to Unfair Trade Practice. According to the Complainants, the terms of the Agreement are unfair unjust and arbitrary and in favour of the Opposite Party Developer. As per Clause 4.4 of the Agreement, the Opposite Party Developer is entitled to charge interest @ 24% p.a. from the Buyer for slight delay in payment, however, as per Clause 9.2 of the Agreement, if there is delay in handing over the possession by the Opposite Party Developer, the Buyer is entitled to give notice to the Developer for termin