NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 480 OF 2017 1. GIRWAR SINGH JAKHAR A-303, PRAGYA CGHS LTD., PLOT NO.1-B, SECTOR-2, DWARKA DELHI-110075. ...........Complainant(s) Versus 1. M/S. EARTH INFRASTRUCTURES LTD. THROUGH ITS MANAGING DIRECTOR. B-100, 2ND FLOOR, NARAINA INDUSTRIAL AREA, PHASE-I. DELHI-110028. ...........Opp.Party(s) CONSUMER CASE NO. 481 OF 2017 WITH IA/10215/2017(Condonation of delay) 1. DIVYA JAKHAR THROUGH HER ATTORNEY, MR. GIRWAR SINGH JAKHAR. A-303, PRAGYA CGHS LTD., PLOT NO.1-B, SECTOR-2, DWARKA. DELHI-110075 ...........Complainant(s) Versus 1. M/S. EARTH INFRASTRUCTURES LTD. THROUGH ITS MANAGING DIRECTOR. B-100, 2ND FLOOR, NARAINA INDUSTRIAL AREA, PHASE-1. DELHI-110028 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER For the Complainant : Mr. Sameer Abhyankar, Advocate with Mr. Girwar Singh Jakhar For the Opp.Party : Ms. Ashita Chhibber, Advocate Dated : 03 Jan 2018 ORDER JUSTICE V.K.JAIN, (ORAL) CC No.480 of 2017 In CC No.480 of 2017, the complainant Girwar Singh Jakhar booked a residential flat with the OP in a project, namely, ?Earth Copia? which the said OP was to develop in Sector 112 of Gurgaon. Vide letter dated 6.4.2012, a residential unit bearing No.703 in Tower-A of the proposed project was allotted to the complainant, pursuant to the application submitted by him on 21.6.2011. The sale price for the said flat was agreed at Rs.8959200/-. An Apartment Buyer?s Agreement dated 31.5.2012 was then sent by the OP to the complainant. As per the proposed agreement, the total cost of the apartment was Rs.11442936/-, inclusive of Preferential Location Charges (PLC) and additional costs detailed in the document. As per clause 11 of the proposed agreement, the possession was to be delivered within 36 months from the date of execution of the said agreement though the OP had a grace period of six months available to it. The complainant, however did not execute the said agreement and rather sent an email to the opposite party objecting to the PLC stipulated in the said agreement on the ground that the said charges were different from the charges mentioned in the price list made available to him at the time of booking the flat. The complainant, however, continued making further payments to the OP and his case is that despite he having already paid Rs.10778552/- to the OP, the possession of the flat was not offered to him and in fact the construction is nowhere near completion. The complainant is, therefore, before this Commission, seeking refund of the amount paid by him along with compensation in the form of interest @ 24% per annum, in addition to compensation for the mental agony and harassment suffered by him. CC No.481 of 2017 2. The complainant in CC No.481 of 2017, namely, Divya Jakhar also booked a residential flat with the opposite party in the same project and vide letter dated 1.6.2012, Unit No.802 on the 8th floor of the complex was allotted to her. She executed an Apartment Buyer?s Agreement with the opposite party on 6.6.2012 and as per clause 11 of the said agreement, the possession was proposed to be delivered within 36 months of its execution though the OP had a grace period of 6 months available to it. The possession to the aforesaid complainant has not been offered and the construction of her flat is not complete despite she having already paid Rs.7965465/- to the OP. Therefore, she is also seeking refund of the amount paid by her to the opposite party along with compensation in the form of interest etc. 3. The opposite party did not file the written version despite service on 27.3.2017. The right of the opposite party to file the written version therefore was closed vide order dated 26.5.2017. I have heard the learned counsel for the parties and have considered the affidavits filed by the complaints by way of evidence. 4. It is evident from clause 13 of the Buyer?s Agreement executed in CC No.481 of 2017 that the possession ought to have been delivered at best within 3 and a half years of the execution of the said agreement. The agreement having been executed on 6.6.2012, the possession ought to have been delivered to her by 6.12.2015. In CC No.480 of 2017, the Buyer?s Agreement was not executed by the complainant and he was justified in refusing to execute the same since the Preferential Location Charges for the corner/road were more than what had been stipulated in the price list provided to him at the time of booking. At the time of booking, the PLC for the corner/road was Rs.75 per sq.ft. as per the price list made available to the above-referred complainant. The amount mentioned in the proposed Buyer?s Agreement towards PLC for corner/road was Rs.657800/-, which was much higher calculated @ 75/- per sq.ft. Moreover, this is also the case of the complainant that though the flat is not situated in front of a park, the Preferential Location Charges in respect of park facing flats were demanded from him. If this is so, the complainant was justified in refusing to execute the Buyer?s Agreement on account of park facing charges claimed in the proposed Buyer?s Agreement. More importantly, even if I go by the date which the opposite party had given on the proposed Buyer?s Agreement, the possession ought to have been delivered by 30.11.2015 since the date given on the Buyer?s Agreement was 31.5.2012. 5. Since the possession of the flats has not been offered to the complainants and the construction of the said flats is not complete, they are entitled to refund of the principal amount paid by them to the opposite party along with appropriate compensation in the form of interest. No specific evidence has been led by the complainants to prove their actual loss on account of the failure of the opposite party to deliver possession of the flats allotted to them though in CC No.480 of 2017, the complainant has filed the documents evidencing the loan taken by him for purchasing another flat. The said loan was taken from HDFC Bank at variable rate of interest which at the time of taking the loan in the year 2015 was 9.85%. However, considering the downward trend in the rate of interest, the variable rate of interest which the complainant is to pay to HDFC Bank has come down and, therefore, actual interest payable by him to HDFC Bank would be less than 9.85% p.a. As far as the complainant in CC No.481 of 2017 is concerned, admittedly no loan was taken by her and no evidence has been led by her to prove her actual financial loss. Though the complainant in CC No.480 of 2017 claims to be paying rent at the rate of about Rs.20,000/- per month, the rental value would be much less as compared to the interest being paid by him on the loan taken from HDFC Bank. In fact, the rental value of the flat would be much less even then the interest one can earn by investing his money in the fixed deposit of a bank. 6. Considering all the facts and circumstances of the case including the recent downward trends in the rates of interest and the value of the immovable properties, I am of the considered view that the complainant should be awarded compensation in the form of simple interest @ 10% per annum from the date of each payment made by them to the opposite party till the date on which the entire principal amount along with compensation in the form of interest is actually refunded to them. The complaints are therefore, disposed of with the following directions:- (1) In CC No.480 of 2017, the opposite party shall refund the entire principal amount of Rs.10778552/- to the complainant along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date on which the entire principal amount along with compensation in the form of simple interest is actually refunded. (2) In CC No.481 of 2017, the opposite party shall refund the entire principal amount of Rs.7965465/- to the complainant along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date on which the entire principal amount along with compensation in the form of simple interest is actually refunded. (3) The opposite party shall pay Rs.25,000/- each as the cost of litigation in both the complaints. (4) The payment in terms of this order shall be made within three months from today. ......................J V.K. JAIN PRESIDING MEMBER