National Consumer Disputes Redressal Commission (NCDRC): Justice V.K. Jain (Presiding Member), while disposing of a complaint, directed the builder to refund the amount paid by consumer along with compensation due to failure in offering the possession of the residential apartment with respect to the agreed agreement between the parties.
The facts of the present complaint are that the complainant booked a residential apartment with OP in the project – ‘Palm Gardens’. Parties had executed an agreement with respect to the same while incorporating their respective obligations of the transaction made, i.e., the booking amount. Under the agreement, a grace period of 3 months was also available for the limited purpose of applying and obtaining the occupant certificate.
Complainant’s grievance in the above view is that the possession was not yet offered to her and the construction was not complete, despite her having paid Rs 1,13,23,298 out of the agreed sale of Rs 1,19,57,632. Complainant sought a refund of the amount paid by her along with compensation.
It was submitted that in event of delay, liquidated damage @ Rs 7.5 per sq. ft. per month were payable to the complainant in terms of Clause 12(a) of the Agreement. Adding to the stated, it also submitted that several allottees defaulted in making payment which resulted in slow construction/development. Further, OP stated that the complainant is a permanent resident of Alwar in Rajasthan and is not a consumer within the meaning of the Consumer Protection Act.
During the pendency of the present complaint also possession was not offered to the complainant though she was not interested in the same after such delay.
In support of the contention that in a case of an unreasonable delay in offering possession of the allotted flat, the consumer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid by him to the builder with compensation, decisions of the Supreme Court were relied on,
Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725
Kolkata West International City (P) Ltd. v. Devasis Rudra, 2019 SCC OnLine 438
The Commission noted that the only justification given by the OP for the delay in completion of the construction was that some of the flat buyers did not pay their respective dues and as result progress of the construction had slowed down. In this regard, the Commission observed:
Complainant cannot be made to suffer for the default, if any, committed by the other buyers of the project. If the other buyers in the project had defaulted in making payment in terms of their agreement with the builder, it was for the builder to cancel their allotment, sell those flats in the open market, raise funds from alternative sources and complete the construction of the allotted flats within the timeframe committed in this regard or within a reasonable time, thereafter.
Plea of the OP that the complainant cannot be said to be a consumer was also rejected.
Thus, Commission in view of the above held that the complainant is entitled to refund of the entire amount which was paid to the OP along with compensation in the form of appropriate interest notified under Rule 15 of Haryana Real Estate (Regulation and Development) Rules 2017.
Complaint was disposed of in the above terms. [Anil Jain v. Emaar MGF Land Ltd., 2019 SCC OnLine NCDRC 334, decided on 11-11-2019]
