NCDRC | Buyers cannot be made to wait indefinitely for possession of apartment in case of incomplete construction; ‘Developer’ to refund the amount paid

National Consumers Disputes Redressal Commission (NCDRC): The Bench comprising of Justice R.K. Agrawal (President) and M. Shreesha (Member) while addressing a complaint filed under the Consumer Protection Act stated that:

“Complainants cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 6 years has lapsed from the date of booking.”

The present complaint was filed against the “Developer” and “Construction Company” under Section 21(a)(i) of the Consumer Protection Act, 1986.

In accordance with the facts of the case, Complainant had been looking for residential accommodation in Gurgaon, wherein he wanted to reside after his return from Tokyo, Japan. Complainant on his return to India booked a residential apartment of 5450 sq. ft. and paid an amount of Rs 4,12,98,926 by 03-09-2015.

It has been averred that, Flat Buyer’s Agreement was executed between the Developer and Complainant on 19-02-2013 and as per Clause 12 of the agreement, the possession of the apartment was to be delivered within 36 months with an additional grace period of 6 months, which ended on 19-08-2016.

Adding to the above, in December 2015, the complainant visited the site to see the development work and was shocked to see that the construction work had been completely stopped since January 2015. Complainant visited the corporate office of the developer and was informed that due to disputes with Construction Company, they had terminated the contract with them. The complainant was further assured that a new construction company would complete the balance work and the complainant shall receive the possession in terms of the agreement by February 2016 or at least within the extended period.

Again in January, 2017 complainant was disappointed to observe that no work was being carried out and he was assured by the officials of the “Developer” that the new construction company would complete the balance work. Once again in April 2018, on visiting the construction site he found that the site office was locked.

Thus, on multiple failures by the developer to respect the agreement in regard to the construction of the flat, Complainant had to send a legal notice to the Opposite Parties and further vexed with the attitude of the OP’s, the complainant approached the Commission.

Siddharth Yadav and Wasim Ashraf, Counsel appearing on behalf of the Complainants argued that despite repeated attempts to contact the “Developer” and seeking information regarding the progress of construction, there was no response for the same.

Commission in view of the above, relied on the decisions of the Supreme Court case in Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725 and Kolkata West International City (P) Ltd. v. Devasis Rudra, (2019) CPJ 29 (SC), and opined in regard to the instant case that, “Complainants cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 6 years has lapsed from the date of booking.”

Further, the Commission added to its observation that, there has been a deficiency of service on behalf of the OP’s. However, since the amounts were paid to the “Developer” the liability is fastened on the developer and not the “Construction Company”.

With the above, Complainant is allowed in part directing the “Developer” to refund 4,12,98,926 with interest at 12% p.a. from the respective dates of deposit till the date of realisation. [Alok Kumar v. Golden Peacock Residency (P) Ltd., 2019 SCC OnLine NCDRC 314, decided on 06-09-2019]

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