RAKESH GUPTA Vs. IREO GRACE REALTECH PVT. LTD

JUDGEMENT

(1.) IA No. 891 of 2022 This Application seems to have been kept pending and was not disposed of as the order sheet indicates that the matter proceeded with for filing of evidence which has now been filed by both the sides. In these circumstances the Application has become infructuous and is accordingly consigned to record. Complaint

(2.) This matter has been taken up and has been heard in respect of the claim of refund made by the Complainants in terms of the Builder Buyer Agreement executed on 26/6/2015. The apartment is part of the project known as 'The Corridors' in Sector 67-A, Gurugram, Haryana, and is a project developed by M/s Ireo Grace Realtech Pvt. Ltd., the Opposite Party herein. The Complainants herein state to have tendered an amount of Rs.17,78,000.00 at the time of booking and a total amount of Rs.2,00,84,823.06 is said to have been paid as against the total consideration of Rs.2,01,17,258.00. It is the allegation of the Complainants that in spite of having waited for long and in spite of the promised period of 42 months for handing over possession having expired as per the terms of the Agreement with further 6 months grace period coming to an end on 26/11/2018, no effort was made to finalise the constructions nor any offer of possession was forthcoming from the Opposite Party as a result whereof several such flat buyers approached various Forums/Commissions, including this Commission, contending that they are entitled for refund. This claim of refund was founded on the very same premise of non-completion of the project with no offer of possession and one of the cases to this effect was dealt with by the Commission that travelled upto the Apex Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna And Ors., (2021) 3 SCC 241. The said Three Judges decision of the Apex Court also traversed this aspect of the matter and drew a distinction between those buyers whose allotments were found to be worth giving possession on the ground that the developer had been granted the occupation certificate and offer of possession had been made within a reasonable time, whereas the second category related to those apartment buyers where occupation certificate had not been either procured, obtained or granted. The second category of apartment buyers is referred to in Para 43.1(ii) of the said judgment which includes Tower B 8. The present Complaint is also with regard to allotment in the same tower.

(3.) We have gone through the pleadings of the Opposite Party, in spite of the fact that the learned Counsel for the Opposite Party has chosen not to appear, and we find from the evidence affidavit as well as the other documents filed by the Opposite Party that the defence taken up by them is that they had applied for the grant of occupation certification on 10/9/2019 and the said grant was delayed on account of certain litigation that was filed by some of the allottees who approached the Director, Town and Country Planning, Haryana alleging violation of certain licencing norms by the Company, with a relief that the builder should not be granted the occupation certificate. It is the case of the Opposite Party that the said request of the flat buyers was rejected on 25/9/2020, against which they preferred a statutory appeal before the State Government that was dismissed on 11/11/2021. It is thereafter only that the occupation certificate could be granted on 27/1/2022 and hence any such delay in the grant of occupation certificate cannot be attributed to the builder who had made all efforts to obtain the occupation certificate. Taking this into defence, it is submitted on behalf of the Opposite Party that in view of the force majeure clause contained in the agreement this being a reason beyond the control of the developer, the flat buyers cannot seek refund and as a matter of fact are entitled to take possession which was offered according to the showing of the Opposite Party vide offer of possession letter dtd. 16/2/2022. The occupation certificate dtd. 27/1/2022 has also been brought on record to substantiate the said defence.