NCDRC Directs The Builder To Refund The Deposited Amount Along With Interest And Cost

Brief facts of the case:

The complainant booked a residential flat in the project of the OP, namely ‘Imperial Gardens’, on 1.11.2012. The complainant paid Rs. 56,29,609/-out of the total sale consideration of the flat as per agreement. The total sale amount was Rs.1,47,37,662/- .

As per the Buyer’s Agreement signed on 30.4.2013, the committed date of possession was 42 months with a grace period of 3 months from the date of execution of the agreement. The Opposite party failed to handover the possession as the construction of the flat has not been completed yet.

Since there was a failure to hand over the possession, the complainant vide emails dated 9.2.2018 and 12.4.2018 showed her disinterest in taking possession of the flat and asked for a refund of money.

The complainant argued that as per clause 14 of the Buyer’s Agreement, possession has to be handed over within 42 months with a grace period of three months, and the 45 months period expired on 30.1.2017. The OP failed to hand over the possession after obtaining the Occupancy Certificate within the contractual period. Hence, the complainant is entitled for a refund with interest.

The opposite party argued that the complainant defaulted in complying with the payment plan of the Buyer’s Agreement. The complainant himself has been a chronic defaulter since the inception of the contract and has intentionally chosen not to deposit the payable amounts despite repeated requests by the OP. The complainant has not deposited any amount with the OP after 16.5.2014. Since there is a default, the OP is entitled to terminate the contract and refund the deposited amounts after deducting earnest money, non-refundable amounts etc., in terms of agreed clauses of the buyer’s agreement.

The commission relied upon the Judgment passed by the Supreme court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. Vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 “failure of the developer to comply with the contractual obligation to provide the flat to a fiat purchaser within the contractually stipulated period, amount to deficiency”. And also relied upon the orders passed in Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr. (2021) 3 SCC 241 and Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan.

The NCDRC observed that there is an inordinate delay in handing over the possession of the flat by the OP. The complainant cannot be made to wait indefinitely and suffer financially. Hence, the complainant, in the present circumstances, has a legitimate right to claim a refund along with fair delay compensation/interest from the OP(s).

The NCDRC allowed the consumer Complaint and directed the opposite party to refund the entire principal amount of Rs.56,29,609 to the complainant, along with compensation in the form of simple interest @ 9% per annum from the date of each payment till the date of refund. The Commission further directed the opposite party to pay Rs.25,000/- as litigation cost to the complainant. Finally, the Commission directed the complainant to clear all the loans, if there is any, out of the amount received from the opposite party.

Case; Neeraj Antil Vs Ms/ Emaar MGF Land Limited

Case No. CC No. 1455/2018

Counsel for the Complainant: Chandrachur Bhatacharya, Advocate

Counsel for the Opposite Party: Sunil Kumar, Advocate

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