Anoop Kumar Mendiratta, Member

1. Complainant initially filed the complaint seeking compensation for delayed possession with interest @ 12% p.a. with adequate parking compensation and litigation cost. However, during the pendency of the proceedings, complainant preferred to amend the complaint and seeks refund with interest along with compensation and costs as under :-

                          "a) Direct the Opposite Party for an immediate refund of the entire amount paid by the Complainants along with a penal interest of 18% per annum from the date of receipt of payments made to the Opposite Party;

                          b) Direct the Opposite Party to pay compensation INR. 5,00,000/- (Rupees Five Lakh Only) to the Complainants for mental agony, harassment, discomfort and undue hardships caused to the Complainants/Applicants as a result of the acts and omissions on the part of the Opposite Party;

                          c) Direct the Opposite Party to pay a sum of Rs. 1,00,000/- (Rupees One Lakh Only) to the Complaints towards Litigation costs;

                          d) Pass any order as it may deem fit in the facts and circumstances of the present case."

2. In brief, complainant booked a unit in the project launched by OP for consideration of Rs.1,31,19,193/-, by making payment of Rs.7,50,000/- as booking amount. A Builder Buyers Agreement was further executed on 05.07.2012 whereby the possession of the unit was to be delivered within 39 months including the grace period of 3 months from the date of start of construction. The possession was accordingly to be delivered by November, 2015 since the construction commenced in August, 2012.

3. The grievance of the complainant is that despite collecting around 95% of the total consideration of the unit by December 2014, the possession of the flat was not offered by the opposite party. The possession of the unit was offered only on 17.03.2018 after inordinate delay of three years. It is further the case of complainant that on visiting the project site for taking the physical possession, she found that there was no lawn area around her unit which was promised as per the layout plan.

4. An application was further moved by the complainant to get her unit inspected through an Architect which was allowed during the course of proceedings but the Opposite Party did not let the complainant to get the unit inspected through an Architect. In the aforesaid background, the date was fixed for inspection of the unit on 02.03.2020.

5. The specific case of the complainant is that as per agreement, unit was to be provided/surrounded with lawn admeasuring 15 feet x 18 feet on one side and 25 feet x 11 feet on the other side, with a total area admeasuring 559.6 sq. ft. However, as per Architect’s Report, there is only a slall „L‟ shaped lawn at the actual site and the substantive area of the lawn had been reduced to 337.77 sq. ft. Also out of the area of 337.77 sq. ft. only a patch of area admeasuring 166 sq. ft. is usable. Further the structure columns erected by the opposite party are claimed to be creating restrictions in space and visibility of the view outside the unit.

6. In the reply to the amended complaint opposite party admitted that a residential unit measuring 850 sq. ft. was booked by the complainant on ground floor in tower/building No. 05 in the residential project "Palm Gardens" being developed at Sector 83, Gurgaon. The construction is stated to have been delayed on account of force majeure circumstances as IL&FS Ltd. to whom the construction work was entrusted failed to deploy the requisite work force. Despite all odds, the possession is stated to have been offered to the complainant on 17.03.2018 after obtaining the occupancy certificate.

7. It is further the case of OP that vide Order dated 22.10.2018 this Commission directed to deliver possession of the flat to the allotee complete in all respects within 8 weeks from 22.10.2018. Further, vide Order dated 28.11.2018, complainant was permitted by this Commission to purchase and deposit the requisite stamp duty and the possession was directed to be handed over in compliance of Order dated 22.10.2018 as an interim measure. OP further pointed out that on 20.08.2019, counsel for the complainant made a statement before this Commission that they are only pressing for compensation for the period the possession has been delayed and wanted a liberty to file a separate consumer complaint or to approach RERA with respect to their grievances. Thereafter, the complainant was permitted to get the premises inspected through an architect on 02.03.2020. The allegations regarding the decrease in size of the lawn are vehemently denied by OP as no such promise is stated to have been made at any point of time to provide a lawn of any size to the complainant. It was further averred that more than 7 years after receiving the offer of possession and making the opposite party holding and maintaining the flat, the complainant seeks to terminate the agreement.

8. In support of her case, complainant before moving amended complaint led evidence by way of filing her affidavit and exhibited copy of the details available on the website of Ministry of Corporate Affairs about the OP as Ex.CW1/1; copy of the brochure of project "Palm Gardens" as Ex.CW1/2; copy of the provisional allotment letter dated 22.05.2012 as Ex.CW1/3; copy of Builder Buyer Agreement dated 05.07.2012 as Ex.CW1/4; copy of memo. No. LC-1087/JE(BR)/2016/27149 along with the letter issued by DTCP, Haryana to the OP as Ex.CW1/5; copy of Statement of Accounts issued by the OP as Ex.CW1/6; copy of the photographs showing the "others land" and the "revenue road" as Ex.CW1/7; copy of No Dues Letter dated 17.12.2015 as Ex.CW1/8; copy of completion schedule as Ex.CW1/9; copy of correspondences between representatives of "Palm Garden Owners Welfare Association" and the OP as Ex.CW1/10 (colly); copy of correspondences between representatives of "Palm Garden Owners Welfare Association" and the DTCP (Hq.), Chandigarh as Ex.CW1/11 (colly); copy of project updates acquired from the webpage of the project as Ex.CW1/12 (colly) and copy of the Possession Letter dated 17.03.2018 as Ex.CW1/13.

9. Further, after filing of the amended complaint, complainant filed supplementary affidavit and exhibited copy of details available on the website of Ministry of Corporate Affairs about OP as Ex.CW1/1; copy of the Buyer’s Agreement with the layout plan dated 05.07.2012 as Ex.CW1/2; No Dues Letter dated 17.12.2015 as Ex.CW1/3; copy of letter dated 08.01.2019 wherein the Builder confirmed the sole allotment to Dr. Saroj Khanna as Ex.CW1/4; copy of Statement of Accounts dated 28.06.2018 as Ex.CW1/5; copy of Letter of Offer of Possession dated 17.03.2018 as Ex.CW1/6; copy of Order dated 20.02.2020 and copy of Order dated 12.12.2019 as Ex.CW1/7 and architect’s report and photographs as Ex.CW1/8 (colly).

10. On the other hand, OP led evidence by way of affidavit of Rajendra Prasad, Authorized Signatory and exhibited copies of payment reminders as Ex.R-1/1 (Colly); copies of various communications between OP and its contractor namely IL&FS as Ex.RW-1/4 (Colly); copies of offer of possession dated 17.03.2018 and reminder dated 25.08.2018 as Ex.R-1/2 (Colly) and copy of statement of account as Ex.RW-1/3. After amendment of complaint, OP further filed affidavit of Puneet Popli, Authorized Signatory and exhibited copy of the Board Resolution dated 19.05.2025 as Ex.RW-1/5.

11. Learned counsel for the complainant referring to the factual position as delineated above, emphasizes that the complainant was within her rights to seek the refund of the amount after amending the complaint as the flat offered by the opposite party did not provide a lawn as agreed upon to be offered in terms of agreement to sale and lay-out plan provided to her. Reliance was further placed upon the report of the Architect along with the layout plan. He further submitted that the offer of possession which was to be made in November, 2015 has been delayed by the OP till 2018. Further, since the very purpose of booking the flat with a lawn view stood frustrated, complainant is left with no other option but to seek refund of the amount. In support of the contentions reliance was further placed upon Nitin Juneja v. Ireo Pvt. Ltd. & Ors., 2021 SCC OnLine NCDRC 582 (NC) which was upheld in Civil Appeal No.268 of 2022 vide Order dated 21.01.2022 by the Hon’ble Apex Court; Ansal Lotus Melange Projects Pvt. Ltd. v. Dr. Yuti Mukesh Mishra & Another, 2018 SCC OnLine NCDRC 1777; Shikha v. JTPL Townships Pvt. Ltd., 2019 SCC OnLine NCDRC 609; Sanjay Agarwal & Others v. Rosedale Developers Pvt. Ltd. & Another, CC 1270 of 2017 decided on 10.01.2020; Pioneer Urban Land & Infrastructure Ltd. v. Geetu Gidwani Verma & Another, Civil Appeal No.1677 of 2019.

12. On the other hand, learned counsel for the Opposite Party vehemently opposed the claim for refund and submitted that no such assurance of providing a lawn space of a specific size as claimed by the complainant had been given at any point of time. He urged that having initially prayed to hand over the possession, which led to passing of directions for handing over the flat, the amendment could not have been made for refund of amount. He further urged that in such an eventuality the refund could be directed only after deduction of earnest money and without any liability of payment of interest on OP. Learned counsel argued that a party cannot be allowed to change the basic nature of complaint and is bound by the statement made before a Court of law. Further, if possession has been prayed for and the same has been offered after obtaining of occupancy certificate, the allottee is obliged to take over the possession. He further contended that compensation cannot be granted on multiple heads and reiterates the principles for award of compensation. Reliance was further placed upon Ireo Grace Real Tech Private Limited v. Abhishek Khanna & Ors, 2021 SCC OnLine SC 14; Supertech Ltd. v. Rajni Goyal, I (2019) SLT 210 and DLF Home Developers Ltd. & Anr. V. Capital Greens Flat Buyers Association etc., CA Nos.3864-3889 of 2020.

13. We have given considered thought to the submissions made and perused the record carefully.

Admittedly, the complainant had initially preferred the complaint in April, 2018 seeking compensation for delayed possession with interest along with all necessary documents and common areas and facilities as promised during the initial booking made by the complainant. Further, the complainant sought adequate car parking space along with interest and compensation since the opposite party failed to deliver the possession in terms of Builder Buyer’s Agreement executed on 05.07.2012 within the stipulated period of 39 months including the grace period by November, 2015. The letter of possession was issued on 17.03.2018 which the complainant claims to be sham as the project was incomplete and the promised amenities had not been delivered. Complainant further claims to have paid the total consideration amount of Rs.1,31,19,193/- as on 28.06.2018. During the pendency of proceedings, the complaint was amended seeking refund of amount. Further, the complainant moved IA No.19104 of 2019 seeking permission of this Commission to get the unit inspected through an Architect, whereupon the survey was conducted by the Architect on 02.03.2020. As per the complainant, at the time of booking and as per the unit layout plan shared along with the agreement form, it was represented to her that the unit would be surrounded by lawns admeasuring 15 feet x 18 feet at one side and 20 feet x 11 feet on the other with a total admeasuring area of 559.6 sq. ft. In specific, complainant had opted for the ground floor unit by paying additional amount as preferential location charges because of the assured lawn area with the ground floor unit. However, the Architect’s report dated 05.03.2020 appended along with the photographs reveals that there is a small „L‟ shape lawn at the actual site and the total area of the lawn had been substantially reduced to 337.77 sq. ft. Further, out of the total area of 337.77 sq. ft only a patch of area admeasuring 167 sq. ft. at the left corner is usable. The report of the Architect further reflects that a feature wall with structural columns had been erected by the OP from the ground floor to first floor which is coming in the way of the lawn and creates restriction in space and visually blocks the view outside the unit. The said feature wall is claimed to be never a part of the layout plan by the complainant. Any change in layout plan thereby reducing the area of lawn is stated to have never been communicated by the OP to the complainant. In the aforesaid background the application preferred the complainant for amendment of relief seeking refund of the amount along with interest and compensation was allowed.

14. Per contra, the stand of the OP is that the delay in construction was occasioned due to force majeure circumstances as the construction work was delayed by IL&FS (Infrastructure Leasing and Finance Ltd.) which was later admitted to insolvency proceedings before NCLT Mumbai. It is also pointed out that OP during the pendency of proceedings had been directed vide order dated 22.10.2018 to deliver possession to the concerned allottee complete in all respects from 22.10.2018 subject to complainant paying admitted amount, if any and depositing the disputed amount with the Commission. Further, complainant was permitted vide order dated 17.03.2018 to purchase and deposit the requisite stamp duty with the OP. Learned counsel for OP disputes the floor plan attached with the Architect’s report and claims that there was no promise by OP at any point of time to provide a lawn of any size to the complainant. It is the case of the OP that after more than seven years of receiving the offer of possession and making the OP hold and maintain the flat, the complainant seeks to terminate the agreement on baseless pretext.

15. On the face of record, the offer of possession was made to the complainant on 17.03.2018, prior to filing of the complaint in April, 2018. The claim for refund was not initially preferred but a categorical stand was taken that the amenities, as promised, had not been delivered as assured at the time of booking. Though the OP has disputed the floor plan attached with the report of Architect as having been created by the complainant but the same has not been controverted by leading cogent and reliable evidence on record. Admittedly, at the time of booking preferential location charges were charged from the complainant along with the consideration and the very purpose of the booking ground floor unit was on account of the proposed lawn with earmarked dimensions. Since the lawn area has been substantially reduced from 559.6 sq. ft. top 337.77 sq. ft. as per the report of the Architect, the same adversely impacts the very purpose of booking the ground floor by the complainant. It cannot be ignored that the lawn area stood reduced to a mere passage along with usable area of about 166 sq. ft. only on one side of the unit. Even if the Architect’s report regarding erecting of feature wall with structural columns which reduced the space as well as visually blocked the view of the unit, is ignored, the reduction of the lawn area without any intimation or consent of the allottee at any stage, remains inexplicable. The photographs appended with the Architect’s report, amply reflect that the lawn area remains a small passage which clearly deprives the allottee, the ambience and utility of a lawn, as assured.

16. We are of the considered opinion that developer is accountable for representations to the allottee, and reduction of the area of proposed amenity of lawn impinges on the quality of life of the allottee. There is no cogent evidence on record to hold that the plan appended by the Architect was not provided to the complainant, which was taken into consideration while making the assessment of the unit by the Architect. An allottee does not forfeit the right to claim the services which had been promised but are not provided, resulting in deficiency in services, and may also refuse the offer of possession by OP, if the circumstances so warrant. A grievance in this regard can validly be raised by the complainant before the Consumer Forum and the relief of possession can be moulded to refund, if the circumstances so warrant. The consumer cannot be spurned on specious ground that they knew what they were purchasing. Having assured of providing the amenity by way of lawn of a specific size to the allottee, the plans could not be subsequently altered by the developer/OP to the detriment of the allottee, without his/her consent/concurrence.

We are further of the view that mere acceptance of offer of possession of the flat does not foreclose the right of the complainant to seek refund, though having initially prayed for delay compensation and possession. The complainant/allottee cannot be compelled to take the possession of the apartment in the absence of the promised lawn area with the ground floor unit, which induced her to book the same. In view of above, we do not find any merits in the contention raised on behalf of the learned counsel for the OP that having sought for delay compensation initially, the complainant could not have changed the relief seeking refund of the amount.

17. A contention has been further raised on behalf of the learned counsel for OP that the developer cannot be held liable for payment of interest on the amount to be refunded as the unit had been withheld and maintained by them after offer of possession was issued to the complainant in 2018.

We are of the considered opinion that the said contention cannot be accepted since the OP failed to offer the unit along with the lawn of specific dimensions, as assured. The complainant did not benefit in any manner by delaying the taking of the possession as offered having paid the entire consideration but was compelled to file the complaint before this Forum as the amenities as assured had not been provided by OP. Also, it cannot be ignored that there has been sufficient appreciation of rates of the property in the meanwhile and the builder/OP stands equally benefitted by re-selling the unit.

18. Learned counsel for OP has next submitted that delay in construction was only on account of force majeure circumstances since IL&FS to whom the construction was entrusted, delayed the construction of the project and subsequently faced insolvency proceedings before NCLT Mumbai.

The details as to nature of dispute with the IL&FS are not before this Commission. It is evident that the delay on account of some disputes with the contractor is a normal incident of a construction project which is in contemplation of the developer. In the facts and circumstances, OP cannot refuse to pay delay compensation or interest in cases of refund, taking benefit of any dispute with the contractor in normal circumstances. No cogent evidence has been brought on record to assume that the dispute fell within force majeure circumstances in terms of the agreement.

19. With regards to compensation payable in such refund matters, Hon’ble Apex Court in Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019 decided on 07.04.2022 held as under:-

                          "We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

                          At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest."

Further, the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda, II (2019) CPJ 117 (SC) held that multiple compensation for singular deficiency is not justifiable.

There is no dispute on the proposition of law with reference to authorities relied upon by learned counsel for OP but the same are distinguishable on facts.

20. For the foregoing reasons, OP is directed to refund the entire amount of consideration deposited by the complainant along with simple interest @ 9% from the date of respective deposits till date of realization. In case the Order is not complied with within a period of eight weeks, OP shall be liable to pay enhanced interest @ 12% per annum on any unpaid amount after the expiry of period of eight weeks. OP is also directed to pay cost of Rs.25,000/-. Complaint Case is accordingly disposed of. Pending applications, if any, also stand disposed of. A copy of this Order be provided to both the parties by the Registry.