ORDER

Subhash Chandra, Presiding Member—The complainant is before us under section 21 of the Consumer Protection Act, 1986 (in short, ‘the Act’) stating that he had booked a flat in the project viz., ‘The Corridors’ being developed by the opposite party at Sector 67 – A, Gurgaon. An Apartment Buyer’s Agreement (in short, ‘the ABA’) was signed by the parties. The opposite party was under obligation to hand over the possession of the apartment within 42 months with another 6 months as grace period as per the ABA which he failed to do. The complainant’s request is for refund of the amount deposited along with interest along with compensation towards mental agony and litigation costs.

2. In brief, the admitted facts are that the complainant had booked a flat in 2013 in the above-mentioned project of the opposite party for a total sale consideration of Rs.1,84,44,568.34. On 07.08.2013 flat no. CD-A5-09-901 admeasuring 1726.91 sq ft was allotted to the complainant by the opposite party and as per the ABA signed on 03.06.2014 possession was to be handed over by 03.06.2018. Despite payment of Rs. 1,83,48,221/- as on the date of this complaint, construction has not been completed and possession has not been offered. The complainant has prayed for refund of the amount deposited along with interest @ 12%, compensation for mental agony and litigation costs.

3. The opposite party has resisted the claim through several contentions and advanced various reasons for the delay and requested that the complaint be dismissed.

4. Parties led their evidences. We have heard the arguments and perused the relevant records. During the course of arguments, learned counsel for the complainant relied upon the judgment of the Hon’ble Supreme Court in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Ors., (2021) 3 SCC 241 decided on 11.01.2021 as per which the Hon’ble Apex Court has taken cognizance of the fact that the project had both completed and incomplete towers in Phases I and II of the project. However, occupancy certificate from the statutory authority was available only in respect of certain towers. The Apex Court had balanced the interests of the complainants and the opposite parties by equitably allocating the obligations for a full refund of payment with interest to the allottees in the case of incomplete flats for the period between the committed date and the date of making of the offer of possession and placed an obligation on complainants who had prayed for refund where occupancy certificate was available to accept possession with compensation for delay.

5. The opposite party has not denied the fact of delay in the project due to various reasons, although the quantum of delay is contested on the ground that the ABA provided for the period of construction to be reckoned from the date of approval of the Fire Fighting Scheme which was 27.11.2014 as per which the date of offer of possession should be considered as 27.11.2018. It is not denied that Tower A-5 in Phase II in which the flat is located has not been completed and that an occupancy certificate not been obtained.

6. We have considered the arguments of the learned counsel for the parties and have perused the order of the Hon’ble Supreme Court in Abhishek Khanna (supra). The present case is squarely covered by this judgement. It is admitted that the flat allotted to the complainant is in Tower A5 which falls under Chart B of the order in Abhishek Khanna (supra). The complainant’s prayer is for refund of the money deposited with the opposite party along with interest and other reliefs in view of the inordinate delay in completion of the project.

7. In Abhishek Khanna (supra) the Hon’ble Supreme Court has discussed at length whether the period of handing over the possession is to be calculated with effect from the date of issue of fire NOC or from date of sanction of building plans to calculate the due date of offer of possession and decided as under:—

25.9. The 42 months’ period in Cla