On Monday, 20th July 2020 The National Consumer Disputes Redressal Commission directed the developer i.e. Three C Shelters Pvt Ltd to refund 12 Crores (approx.)to the homebuyers in view of “inordinate delay” in giving possession for its Greenopolis Project in Gurgaon.
Presiding member Prem Narain noted, “In these complaint cases, the possession was due in 2015-2016; however, even the construction is not complete.” The commission further stated “Clearly the OPs have not been able to complete the project in time and to deliver the possession of properties in question to the respective complainants in time as per the allotment letter or the Apartment Buyer Agreement. It is now clearly established that the allottees have the right to ask for a refund if the possession is inordinately delayed and particularly beyond one year.”
However, the builder argued that the complainant-buyer had breached the provision of the apartment buyer agreement as they have stopped paying the instalments so as per Section 55 of the Indian Contract Act, 1872 they are not entitled to any relief. Regarding this the commission said:
“Instalments have been paid up to the reasonable limit and the payment was stopped later on as there was no progress in the construction- therefore, it cannot be said that the complainants breached the agreement first and they are not entitled to any relief in the light of Section 54 and 55 of the Indian Contract Act, 1872.” The builder took the defence of Force Majeure for the delay, including the order of P&H HC in the case of Sunil Singh v, MoEF, Parayavaran, where a blanket was imposed on the groundwater for the use of groundwater in the region of Gurgaon and adjoining areas for the purposes of construction. The commission remarked, “Clearly, there was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside and to complete in time.” The project was owned by Orris Infrastructure Pvt Ltd. which had entered into a development agreement with Three C Shelters Pvt Ltd. The commission observed that the two companies had not entered into an agreement and therefore the development agreement was in question. It said “Though this ground has not been taken by the complainants for seeking refund, however, this is also a valid ground for the complainants for seeking refunds. If there is uncertainty in the development agreement itself, as entered between Orris Infrastructure Pvt Ltd and Three C Shelters Pvt Ltd, the allottees would not like to block their money in such a project.” The company was directed to return the earnest money. The commission also clarified that since Three C Shelters have received money and not Orris, ‘Three C Shelters Pvt Ltd would be liable to refund the same to the complainants’along with 9% p.a. interest from the date of respective deposits. These observations were made in three orders, disposing of a batch of consumer complaints. In a few cases, the court directed the builder to hand over the possession by September 2020 with a penalty of 6%. If the possession is not made available by September 2020 then the homebuyers are at the liberty to seek a refund of their deposit. [Read Orders]