2019 (3) TMI 1789 - Commission - Indian Laws

Allotment of a residential apartment in a project - grievance of the complainant is that the possession of the apartment was not offered and even the construction was not completed despite they having already paid part payment to the OP - HELD THAT - The learned counsel for the complainants states on instructions that in order to avoid any further litigation in the matter, the complainants are restricting their claim to the refund of the principal amount paid by them to the OP alongwith compensation in the form of simple interest @ 10% per annum w.e.f. 10.07.2017, which was the interest awarded by the Hon'ble Supreme Court to another allottee of this very project by way of a consent order dated January 28, 2019 in Civil Appeal Diary No.48101 of 2018, provided that payment is made within four weeks. The OP shall refund the entire amount received from the complainants to them alongwith compensation in the form of simple interest @ 10% per annum w.e.f. 10.07.2017 till the date of entire payment, within four weeks from today, provided that the entire payment is made, within four weeks from today, failing which the interest shall be payable from the date of each payment to the OP, till the date of entire payment to the complainants in terms of this order.

Issues Involved:
1. Delay in possession and construction of the apartment.
2. Applicability and fairness of clauses in the Apartment Buyers Agreement.
3. Entitlement to refund and compensation for the complainants.
4. Default in payment by the complainants.

Detailed Analysis:

1. Delay in Possession and Construction of the Apartment:
The complainants had applied for the allotment of a residential apartment in 'The Corridors' project and were allotted apartment no. CD-C4-04-402 for a sale consideration of ?1,45,22,006/-. Despite paying ?1,44,72,364/-, the possession of the apartment was not offered, and the construction was not completed. The Apartment Buyers Agreement, executed on 12.5.2014, stipulated that possession should be delivered within 42 months from the date of approval of the building plans, with an additional grace period of 180 days for unforeseen delays. The OP (Opposite Party) admitted the allotment and payment but argued that the complaint was premature, as the fire safety approval was accorded on 27.11.2014, making the proposed delivery date 27.05.2018. The complainants contended that possession should have been delivered by 23.07.2017, considering the building plans were approved on 23.07.2013.

2. Applicability and Fairness of Clauses in the Apartment Buyers Agreement:
The OP relied on clauses 43, 44, and 49 of the agreement, which outlined the conditions for possession, delay compensation, and the consequences of default by the applicant. Clause 44 allowed the applicant to terminate the agreement and seek a refund only after a delay of 12 months beyond the grace period, without any interest. Clause 21.3 stated that upon termination, the OP would refund the amounts paid without interest, after deducting certain charges, only after the resale of the apartment. The Commission had previously held in Subodh Pawar Vs. M/s. Ireo Grace Realtech Pvt. Ltd. that such clauses were wholly unfair and one-sided, allowing for the refund of the principal amount with appropriate compensation despite these clauses.

3. Entitlement to Refund and Compensation for the Complainants:
The Commission reiterated that failure to deliver possession within the stipulated time constituted a deficiency in service, entitling the complainants to a refund with compensation. The complainants, to avoid further litigation, restricted their claim to the refund of the principal amount along with compensation in the form of simple interest at 10% per annum from 10.07.2017, as awarded by the Supreme Court in a similar case. The Commission ordered the OP to refund the entire amount received from the complainants along with the specified interest within four weeks, failing which the interest would be payable from the date of each payment to the OP till the date of full payment.

4. Default in Payment by the Complainants:
During the hearing, it was revealed that the complainants had not paid installment no. 4. The OP argued that this default disqualified the complainants from claiming a refund or compensation. However, the Commission noted that similar contentions had been rejected in previous cases, such as Subodh Pawar, where defaults in multiple installments did not preclude the complainants from seeking refunds and compensation due to the builder's failure to deliver possession.

Conclusion:
The Commission concluded that the complainants were entitled to a refund of the principal amount paid along with compensation in the form of simple interest at 10% per annum from 10.07.2017 till the date of full payment. The OP was directed to make the payment within four weeks, failing which the interest would accrue from the date of each payment made by the complainants to the OP.

← Previous Next →