The court held that the delay in possession does not constitute a deficiency in service, provided the developer adheres to the agreed timeline including permissible grace periods.

1. This complaint is filed under S.21(a)(i) of the Consumer Protection Act , 1986 by the complainants in respect of a flat booked by them in a project promoted and executed by the opposite party on the grounds that there has been inordinate delay in completion of the same and seeking refund of the money along with damages.

2. The brief facts of the case are that the complainants booked a flat on 21.10.2012 in the project ‘Oyster Grande’ being developed by the opposite party in Sector 102 / 102 A, Gurgaon, Haryana and were allotted flat No. F 1904, measuring 1409 sq ft (super area 1889 sq ft) vide allotment letter dated 9.1.2013. An Apartment Buyer’s Agreement was executed on 11.6.2013 between the complainants and the OP. A sum of Rs. 1,28,77,558 was paid by the complainants as on 13.3.2016 through instalments on various dates towards this flat. According to the complainants possession of the said flat had been promised within three years by the OP. However, since the same was not done, he has filed the present complaint on 1.2.2018.

3. It is submitted by the complainants that they have been paying the amounts demanded from them to the OP on time. It is alleged that the OP had initially promised construction schedule of three years and subsequently it was extended to four years and the revised the date of handing over possession has not been adhered to by the opposite party which constitutes deficiency of service apart from an unfair trade practice on the part of the OP. The complainants are therefore before us with the following prayer:
(a) Direct the OP to pay a sum of Rs. 1,28,77,558 received from the complainants, along with interest @ 24% per annum from the date of booking;
(b) Rs.1.00 lakh to each of the complainants towards mental agony and torture caused by inordinate delay in the execution of the project;
(c) Litigation expenses of Rs. 73,000 which amount the complainants were constrained to spend to seek relief in the matter;
(d) Penal interest @ 24% for withholding the amount deposited till the date of payment; and
(e) Any other relief as deemed fit and proper in the interest of justice.

4. The opposite party has contested the claims of the complainants on the grounds that there was no commitment on its part of handing over the possession within three years. It has drawn attention to clause No. 39 of the Apartment Buyer’s Agreement wherein it has been clearly mentioned that the possession would be offered within 48 months from the date of the Apartment Buyer’s Agreement with a further six months grace period as per Clause 5. According to the opposite party, the period for handing over the possession of the flat needs to be reckoned from 11.6.2013 and that the period of 54 months including the grace period expired on 11.12.2017.

5. According to the opposite party the occupation certificate for the subject flat was obtainedfrom the concerned authorities on 20.12.2017 and the offer of possession was also made on the same date, i.e., 25.1.2018. Therefore, there has been no delay in offering the possession to the complainant except approximately a month’s delay. It is contended that the complainants are seeking relief which is beyond the scope of agreement in the Apartment Buyer’s Agreement which binds both the parties.

6. Parties have led their evidences and filed their written submissions. We have heard thelearned Counsels for both the parties and perused the records carefully.

7. The contention of the complainant is that they have been misled to believe that the project would be executed within 36