Failure to obtain an occupancy certificate bars the enforcement of possession and justifies a refund to flat buyers.

1. Heard Ms. Rekha Aggarwal, Advocate, for the complainants and Mr. Vishnu Anand, Advocate, for the opposite party.

2. Amit Mittal (complainant - 1) has filed above complaint, for directing the opposite party to (i) refund entire amount deposited by the complainant and all other similarly situated flat buyers with interest @ 18% per annum, from the date of respective deposits till the date of refund, (ii) to pay Rs. 11,000 as cost of the litigation; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case. Above complaint was filed as a representative complaint under S.12(1)(c) of the Consumer Protection Act, 1986 , for which, leave was granted vide order dated 5.3.2019. Thereafter, six more flat buyers were impleaded time to time on their applications.

3. The complainants stated that Berry Developers & Infrastructure Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its units to the prospective buyers. The opposite party launched a group housing project, in the name of BDI Ambaram at villages Mirchuni and Dhiriyavas, Sector - 93, Tapukara, Bhiwadi, district Alwar, Rajasthan, in the year 2013 and made wide publicity that about 900 flats would be constructed within 36 months and also gave rosy pictures of other amenities and the facilities of the project. One Mrs. Neerja Gupta (the predecessors - in - interest of Amit Mittal) booked one 2BHK flat on 6.3.2013 and deposited booking amount. The opposite party allotted Flat No. 706, Tower - Orchid - I, approx. super area 980 sq.ft., basic price Rs. 21 lakh, in project BDI Ambaram, vide allotment letter dated 9.10.2013 to her and executed Apartment Buyers Agreement (ABA) dated 19.11.2013, in her favour. Mrs. Neerja Gupta transferred Flat No. 706 to Amit Mittal with the permission of the opposite party, which was duly endorsed by the opposite party in the Apartment Buyers Agreement, on 15.4.2014. Savita Arora (complainant - 2) booked a flat on 29.04.2013 and she was allotted Flat No. 208, Tower - Orchid - I, Abhishek Prakash & Priyanka Prakash (complainant - 3) booked a flat on 25.4.2013 and they were allotted Flat No. 901, Tower - Orchid - I, Girish Arora (complainant - 4) booked a flat on 15.2.2013 and he was allotted Flat No. 104, Tower FERN - 4, Praveen Kumar Juneja (complainant - 5) booked a flat on 29.6.2013 and he was allotted Flat No. 402, Tower IRIS - A - 6. Gurvinder Shah Singh (complainant - 6) booked a flat on 10.7.2013 and he was allotted Flat No. G - 4, Tower IRIS - A - 7. Sonia Juneja (complainant - 7) booked a flat on 29.6.2013 and she was allotted Flat No. 401, Tower IRIS - A - 7. Annexure - B of the ABA provides for Payment Plan as Construction Link Payment Plan. As per demand, the complainants deposited more than basic sale price, till June, 2017. Clause - 4.1 of the agreement provides that possession would be handed over within 36 months from the date of execution of the agreement. Due date of possession expired in November, 2016 but the opposite party failed to complete the project and offer possession to the complainants. The complainants used to inquire about possession from time to time. The opposite party vide demand letter dated 20.6.2017, raised final demand of Rs. 1,43,758 towards balance sale price and Rs. 76,734 towards Maintenance charges, payable till 5.7.2017. Demand of Rs. 60,000 towards Development Parking charges, Rs.13,500 towards Allied charges and Rs. 18,508 towards Delayed payment charges were not in accordance with the ABA. In this demand letter, the opposite party was totally silent abo