Failure by a developer to hand over possession of a residential apartment within the contractually stipulated period constitutes a deficiency in service, entitling the consumer to the delivery of possession along with liquidated damages as provided in the buyer agreement.

ORDER

PER: S.P. SOOD, JUDICIAL MEMBER:

OPs had floated a scheme under the name and style of “Palm Residency” in Sector 75 & 76, Faridabad, Haryana comprising of multi-storied residential apartments. OP allotted Apartment No. 904, having area of 1240 sq. ft. on 9th Floor of Tower No. C-5 to Parmeet Kaur vide allotment letter dated 17.08.2012. The total sale consideration of the said flat was Rs.36,98,040/-, which was to be paid in installments as per payment schedule. Parmeet Kaur paid Rs.2,85,200/- on 13.05.2012 as booking amount with the application and further paid Rs.2,85,200/- on 31.07.2012. Buyers Agreement dated 17.08.2012 was executed between OP and Parmeet Kaur. Complainant and Seema Aggarwal purchased the said flat/apartment from Parmeet Kaur-original allottee. OP transferred all rights of said apartment in the name of complainant and Seema Aggarwal on 14.02.2013. The payment of Rs.5,70,400/- was made by the complainant and Seema Aggarwal as demanded by OP, thereby putting them in the same legal position in which the original allottee was hitherto. Buyers Agreement dated 17.08.2012 was endorsed in favour of complainant and Seema Aggarwal on 14.02.2013. It was assured by OP at the time of purchasing said apartment that possession of apartment will be handed over within 36 months from the date of application. But lateron OP turned down from their words by mentioning in the Buyer Agreement that possession of apartment will be handed over to complainant within 36 months from the date of signing of agreement. On 06.11.2013 Seema Aggarwal withdrew her name from the said flat due to some financial reasons by executing an affidavit of No Objection that the said flat/apartment be transferred wholly in the name of complainant. On 09.11.2013, OPs deleted the name of Seema Aggarwal from joint ownership and the apartment was entirely endorsed in the name of complainant. Complainant paid total Rs.37,45,152/- on different dates, but there is no progress on the site despite the regular payments made by complainant as demanded by OPs. Even after a lapse of more than two years from the stipulated date of delivery of possession, OPs are not in a position to handover possession of the flat. Complainant filed the present complaint for issuance of directions to OPs to refund the amount of Rs.37,45,152/- along with interest @18% p.a. from the date of deposits till its realization; OR to deliver physical possession of the said apartment to the complainant within 30 days; to pay interest on the amount deposited by the complainant; to pay Rs.5.00 lacs towards compensation on account of harassment, mental agony and Rs.44,000/- towards litigation to complainant.

Upon notice, OP No.1 filed its written defence and has taken the preliminary objections that complaint is without any cause of action. OP No. 2 & 3 under collaboration got license No.61 of 2007 from Director, Town and Country Planning, Haryana for developing a ‘Group Housing Colony’ on the land measuring 10.925 acres at Sector 75 & 76, Faridabad, which was divided in three parts i.e. Site 1, Site 2, and Site 3 each having separate and independent entry and exit gates. Tower No. C-1, C-2, C-3, C-4 and C-5 of this colony fall in Site No. 3 and named as “Palm Residency” having 298 flats. OP No. 1 got an authority from OP No. 2 & 3 to develop/construct and sell 214 Flats out of the said 298 flats, which were to be constructed in Tower Nos. C-3, C-4 & C-5. Accordingly, OP No. 1 has developed and constructed Tower C-3, C-4 & C-5 in the said Project and on completion applied for grant of occupancy certificate from the competent authority in April, 2017. Complainant instead of taking possession of said flat has filed the present complaint. Complainant has suppressed the material facts from this Hon’ble Commission. As per record of the OP No. 1, complainant agreed to purchase flat No. 702, 7th Floor, Tower C-3 in the said project on terms and conditions contained in Agreement dated 17.08.2