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NCDRC directs builder to refund complainant with interest over delay in possession of flat

The National Consumer Disputes Redressal Commission (NCDRC) has directed Emaar MGF Land Limited to refund the principal amount of Rs 56,29,609 on an interest rate of nine percent per annum, along with Rs 25,000 litigation cost to the complainant, for failing to hand over the possession of a flat in the given stipulated time. 

The order was passed by the Bench of Ram Surat Ram Maurya as Presiding Member of NCDRC and Dr. Inder Jit Singh as its Member, on a petition filed by one Neeraj Antil over delay in handing over the possession of the flat, contending that the construction of the flat was yet to be completed.

Antil submitted before the Bench that he had booked a residential flat in the project of OP, namely ‘Imperial Gardens,’ on November 1, 2012. The complainant paid Rs 56,29,609 out of the total sale consideration of the flat, which was Rs 1,47,37,662.

As per the Buyer’s Agreement signed on April 30, 2013, the committed date of possession was 42 months with a grace period of three months from the date of execution of the agreement. However, the opposite party failed to handover the possession as the construction of the flat was yet to be completed.

Since there was a failure to hand over the possession, the complainant vide emails dated February 9, 2018 and April 12, 2018 showed his 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 January 30, 2017. 

The OP failed to hand over the possession after obtaining the Occupancy Certificate within the contractual period. Hence, the complainant was entitled for a refund with interest, added Antil.

The opposite party argued that the complainant defaulted in complying with the payment plan of the Buyer’s Agreement. 

It said 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 May 16, 2014. Since there was a default, the OP was entitled to terminate the contract and refund the deposited amounts after deducting earnest money and non-refundable amounts, in terms of agreed clauses of the buyer’s agreement.

The Commission relied on the Supreme Court verdict in the Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors vs DLF Southern Homes Pvt. Ltd. & Ors case of 2020, wherein the Apex Court had noted that failure of the developer to comply with contractual obligation to provide flat to the purchaser within the contractually stipulated period amounted to deficiency. 

The Commission further relied on the orders passed in Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Anr in 2021 and Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan.

The NCDRC observed that there was 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’s 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 at nine percent 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 and directed the complainant to clear all the loans, if there were any, out of the amount received from the opposite party.

(Case title: Neeraj Antil vs Ms/ Emaar MGF Land Limited)

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