New Delhi: In a recent judgement, National Consumer Disputes Redressal Commission (NCDRC) said that it is choice of a homebuyer whether to take possession in a delayed housing project or to seek a refund of their money. The judgement stated that homebuyers can’t be forced to accept delayer flats and a builder cannot refuse to give back the amount on the ground that flat is ready.
The complainants who are residents of Gurgaon booked a high-end residential flat within a project namely ‘Araya’ which the builder was to develop in Sector-62 of Gurgaon. The booking was made on March 27, 2012. 27.03.2012 and Unit A-601 in Tower-A of the aforesaid project was allotted to the complainants for a consideration of Rs 4.75 crore.
As per clause 11.2 of the agreement between the complainant and the builder, the developer was to make all efforts to apply for the Occupancy Certificate within 39 months from the date of excavation, though it was also entitled to a grace period of 180 days, after the expiry of the said 39 months period.
While the excavation started on in June 2012, the construction was supposed to have been completed and the developer ought to have applied for the Occupancy Certificate on or before September 4, 2015. However, the possession was not offered to them following which the complainants approached NCDRC seeking a refund of the amount of Rs 4.43 crore which they have already paid to the opposite party.
A bench of justice V K Jain asked the Delhi-based builder Pioneer Urban Land and Infrastructure to refund the amount of Rs 4.43 crore to the homebuyer. Although the builder had constructed the flat and got occupation certificate from concerned authority about 15 days before the homebuyer filed the complaint, the commission directed the builder to refund the money as there was a delay of more than two years in delivery.
Referring to the Supreme Court judgement, the commission said that the builder had to refund the money since it failed to fulfil its contractual obligation of obtaining ‘Occupancy Certificate’ and offering possession to the buyers within the time mentioned in the agreement or within a reasonable time thereafter. The commission noted that the complainants are justified in insisting upon refund of the amount paid by them to the opposite party.
The judgement said, “More than two years and four months from the stipulated date had already expired by the time the Occupancy Certificate was obtained. Therefore, in this case, as well the complainants were justified in terminating the agreement by instituting the consumer complaint … the complainants are justified in insisting upon refund of the amount paid by them to the opposite party.”
The Judgement stated, “…Complainants are entitled to refund of the amount paid by them to the opposite party along with compensation in the form of interest, the complaint is, therefore, disposed of in terms of the following directions:
The OP shall refund the entire principal amount of Rs 4,43,08,486 to the complainants along with compensation in the form of simple interest at 10.65% per annum in terms of Rule 15 of Haryana Real Estate (Regulation And Development) Rules 2017 w.e.f. the date of each payment till the date of refund. The OP shall also pay a sum of Rs 25,000 as the cost of litigation to the complainants.”
NCDRC made it clear that in case of unreasonable delay, the choice will be with the buyer whether to take a belated possession or to seek refund with appropriate compensation.