SANJEEV KUMAR V. M/S. IREO GRACE REALTECH PVT. LTD.

1. SANJEEV KUMAR
S/o Shri Madan Lal Chaudhary, R/o Flat No. 214, First Floor,
Versus

1. M/S. IREO GRACE REALTECH PVT. LTD.
Through its Directors, 304, Kanchan House, Karampura
Commercial Complex,
New Delhi
110015

Case No: CONSUMER CASE NO. 3316 OF 2017

Date of Judgement: 23 Jan 2023

Judges:

For the Complainant : Mr. Deepak Kr. Khushalani, Advocate
Mr. Aditya Parolia, Advocate,
Ms.Medhya Ahluwali, Advocate
For the Opp.Party : Mr. Rahul Ahuja, Advocate
Ms. Sadhvi Swaroup, Advocate
Mr. Gaurav Sharma, Advocate
Mr. Arvind Lamba, Advocate
Ms. Ruchi Kumar, Advocate
Mr. Sunil Mund, Advocate with
Ms. Archana Yadav, Advocate for OP-3

Facts

Arguments by Parties
Complainant:
Developer started collecting money before building plan approved. Misrepresented specifications and facilities in brochures. Failed to handover possession after repeated follow-ups. Seeks refund of amount paid with interest or possession with compensation.

Developer:
Delays were due to awaiting regulatory approvals beyond their control. Have completed construction and applied for OC. Issuance got delayed. Have offered possession to buyers multiple times but buyers did not accept. Seeks dismissal of complaint as refund claim premature.

Sections and Laws Referenced
Cases Referred
Ireo Grace Realtech vs Abhishek Khanna (SC 2021)
Download Court Copy: https://dreamlaw.in/wp-content/uploads/2024/02/133.pdf

Full Text of Judgment:

1. Heard Mr. Deepak Kr. Khushalani, Advocate, for the complainant and Mr. Rahul Ahuja, Advocate, for the opposite parties.
2. Above bunch of the complaints have been filed against same opposite parties in respect of same project “The Corridors”. As the complainants, in these complaints pressed for the relief of possession at the time of arguments as such these complaints are decided together. For appreciating the controversy between the parties, the facts of CC/111/2019 are mentioned in the judgment. Necessary facts of the complaints are given in a table below:-

4. In CC/106/2019, the complainant has stated that the opposite parties were companies, registered under the Companies Act, 1956. They were engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. Opposite parties-2 to 5 were the owners of the project land. Under a Collaboration Agreement dated 05.03.2013, between the opposite parties, the work of development, construction and sale etc. of the group housing project was assigned to IREO Grace Realtech Private Limited (the developer). The developer launched a group housing project, in the name of “The Corridors” at villages Dhumaspur and Maidwas, Golf Course Extension Road, Sector-67-A, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. The developer invited booking applications and started collecting money before grant of development licence. The complainant approached the developer and inquired in respect of the price of the flat. The developer informed that Rs.9200/- per sq.ft. as basic sale price the flat which includes one car parking space, Rs.327.91 per sq.ft. as Development Charges, Rs.100/- per sq.ft. as Interest Free Maintenance Security, Rs.50/- per sq.ft. as Interest Bearing Replacement Fund and Rs.2.5 lacs towards club membership charges (optional). The complainant and his brother Sameer Kumar Marella booked a 2BHK Flat on 20.03.2013 and deposited booking amount of Rs.1450000/-. Thereafter, the complainant deposited Rs.1471976/- on 06.05.2013. The developer issued Allotment Offer Letter on 07.08.2013, allotting Unit No. CD-C5-05-504, super area 1540.42 sq.ft. and executed Apartment Buyer’s Agreement on 11.07.2014. Annexure-IV of the agreement provides payment plan as “construction link payment plan”. Clause-13.3 provides 42 months period from the date of approval of building plan, for offer of possession, with grace period of 180 days. Clause-13.4 provides for delayed compensation @Rs.7.5/- per sq.ft. per month on super area after expiry of grace period. Sameer Kumar Marella surrendered his right in favour of the complainant, which was duly acknowledged by the developer on 12.05.2015. The complainant diligently followed payment plan and demand letter. The developer raised demand of 10th instalment payable on “completion of stone/tile flooring” vide letter dated 21.07.2017, which was deposited on 18.01.2018. As per demands, the complainant deposited total Rs.15158046.12 and only last instalment of “offer of possession” remained due. The building plan was approved on 23.07.2013. The period of 42 months expired 22.01.2017 and 180 days grace period expired on 22.07.2017 but the developer did not offer possession. Then the complaint was filed on 17.01.2019, alleging unfair trade practice inasmuch as (i) the developer started collecting money before approval of building plan.
5. The opposite parties filed its written reply on 04.04.2019 and contested the matter. The material facts relating to the project, allotment of the apartment to the complainant, execution of ABA in his favour and payments made by him have not been disputed. The opposite parties stated that although building plan was approved on 23.07.2013 but “No Objection Certificate” from Fire Department was delayed and issued on 27.11.2014 although it was applied on 24.10.2013. The construction was started thereafter. The developer raised first demand for instalment of “Casting Roof Slab” from the buyers in March, 2015. The period of 42 months is liable to be counted from 27.11.2014 and due date of possession including grace period would be 26.11.2018. The construction of first phase of the project, which consisted 1356 apartments were completed. The developer
6. The complainant filed Rejoinder Reply and Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of M. Vijay Shekar. The opposite parties filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Subhasis Lahiri. Along with Affidavit of Evidence, the opposite parties filed copy of “occupation certificate” issued on 31.05.2019 and letter of offer of possession dated 17.06.2019, issued to the complainant.
7. We have considered the arguments of the counsel for the parties and examined the record. The dispute of possession/refund with regard to the project “The Corridor” came up for consideration before Supreme Court in IERO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 (decided on 11.01.2021). Supreme Court found that Building Plan was approved on 23.07.2013 but it was conditional for obtaining Fire NOC, which was issued on 27.11.2014. Fire NOC was mandatory under Haryana Fire Safety Act, 2009, for raising construction. The period of 42 months and grace period of 180 days has to be counted from the date of issue of Fire NOC and expired on 27.11.2018. The developer first started construction of phase-l, (which consist Towers A-6 to A-10, B-1 to B-4, C-3 to C7 and EWS block). After completing the construction, the developer applied for issue of “occupation certificate” on 05.07.2018, for phase-l, which was issued on 31.05.2019. Thereafter, possession was offered in June, 2019. There was no inordinate delay in offer of possession and the buyers of phase-l construction were obligated to take possession. So far as remaining buyers were concerned, Supreme Court upheld order of this Commission for refund, with interest @9% per annum, from the date of their respective deposit till the date of actual payment.
8. After completing Phase-II construction, the developer applied for “occupation certificate” of Towers A-1 to A-5, B-5 to B-8, C8 to C-11, Community Centre, EWS Building-2, Convenient Shopping1 and 2 on 10.09.2019, which has been issued on 27.01.2022. Although the developer issued Notice of Possession letter on 17.06.2019 to the complainant but on that day the developer did not have “occupation certificate” in respect of the flat allotted to the complainant as such offer of possession was not legally valid. The complainant is entitled for delayed compensation from due date of possession till issue of “occupation certificate”. Supreme Court in Wg. Camdr Arifur Rahman Khan Vs. DLF Southern Home Pvt. Ltd., (2020) 16 SCC 769, held that compensation for delayed possession at the rate of Rs.5/- per month, per sq.ft. on super area is a meagre amount and just compensation for delayed possession would be interest @6% per annum on the deposit of the buyer, from due date of possession till the date of offer of possession.
9. As the complainants want possession and the developer has not cancelled the allotment till today as such the complainants can take possession in terms of the agreement. As last instalment was payable on offer of possession, the developer will not be entitled to charge interest on last instalment and holding charges till the date of issue of “occupation certificate” from those buyers who have paid instalments (except last instalment). If instalment (except last instalment) of any buyer is due, the developer shall charge interest @9% per annum on such dues. The developer shall charge interest @9% per annum, after 27.01.2022, on the dues payable by the home buyers.

ORDER

ln view of aforesaid discussions, the complaints are partly allowed. The opposite party-1 is directed to issue a fresh Statement of Account, to the complainants, in terms of the ABA duly crediting compensation for delayed possession in the form of interest @6% per annum on the deposit of the buyers, from December, 2018 till January, 2022, within a month. The opposite party-1 will not charge interest and holding charges till the date of issue of “occupation certificate” except from those buyers, whose instalment (except last instalment) was due. The opposite party-1 shall charge interest @9% per annum on such dues. The opposite party-1 will charge interest from February, 2022 @9% per annum on the amount payable by the buyer. If the developer will be liable to pay any amount, which is in excess of its demand, it will be paid along with statement of account. If the buyers are liable to pay any amount, they will be given one month time for deposit. On settlement of account, the opposite parties shall execute conveyance deed in favour of the buyers and handover possession of the flat complete in all respect as per specification without any further delay.