Haryana RERA Orders Refund To Homebuyer After Builder's Failure To Hand Over Possession Even After Delay Of Seven Years

Background Facts

The Homebuyer was allotted a flat in the residential group housing colony of the builder named Raheja's Revanta, situated in Sector 78, Gurugram.

An agreement to sell, dated 17.05.2012, was executed between the parties for a total sale consideration of Rs. 71,47,56,725/-, against which the Homebuyer had paid a sum of Rs. 1,45,54,970.37/- to the builder.

As per clause 4.2 of Article 41 of the agreement to sell, the builder was obliged to give possession of the unit to the Homebuyer within thirty-six months of the date of its execution. However, even after the passing of the 7-year time period, there were no signs of the project getting completed.

Aggrieved by the delay, the Homebuyer withdrew from the project, taking recourse to Section 18 of the Act, 2016, by serving a legal notice dated 03.09.2022, through registered post and email. In that legal notice, the Homebuyer requested a refund of the total amount of Rs. 1,45,54,970.37, with interest, which he paid to the builder.

After the builder's failure to comply with the terms of the notice dated 03.09.2022, the Homebuyer filed a complaint before the authority seeking a refund of the entire paid-up amount to the Homebuyer, along with the prescribed rate of interest.

Observation and Direction by Authority

The authority observed that according to clause 4.2 of the agreement to sell, executed between the parties, the possession of the subject unit was to be delivered within 48 months from the date of execution of the buyer's agreement, amounting to 17.11.2016, including the grace period. Therefore, Authority held that builder is in contravention of the provisions of the RERA, 2016.

The authority further observed that despite over 7.6 years passing to date, neither the construction is complete nor has the offer of possession of the allotted unit been made to the Homebuyer by the builder. The Homebuyer cannot be expected to wait indefinitely to take possession of the unit allocated to him, especially considering the considerable amount of money he has already paid towards the sale consideration

The authority further observed that the occupation certificate of the project, where the unit is situated, has still not been obtained by the builder.

The authority referred to the order of the Supreme Court in the case of Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Ors. (Civil Appeal No. 5785 of 2019), wherein it was held that the Occupation Certificate is not available even as of the current date, which clearly amounts to a deficiency of service. The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartments in Phase 1 of the project.

Therefore, the Authority directed the Builder to refund the amount of Rs. 1,45,54,970.37/- received by them from the Homebuyer, along with interest at the rate of 10.85% per annum, within 90 days.

Case – Dr. Vivek Mahendru S/o Devi Dass Mahendru (Through SPA holder Vijay Kapur) Versus M/s Raheja Developers Limited

Citation - Complaint No. 1660 of 2023