M/S IREO PRIVATE LIMITED versus ALOKE ANAND AND OTHERS on 21 January 2022

M/S IREO PRIVATE LIMITED

v.

ALOKE ANAND AND OTHERS

(Civil Appeal No 180 of 2022)

JANUARY 21, 2022

[DR. DHANANJAYA Y CHANDRACHUD ANDBELA M TRIVEDI, JJ.]

Consumer Protection Act, 1986: Housing – Apartment BuyersAgreement – Apartment not handed over in time by developer –Allottee filed consumer complaint seeking a direction to the developerto provide the apartment, compliant with all the requirementsmentioned in the ABA, within six months of the complaint, i.e., by 3November 2017 – Along with this, the allottee sought compensationfor delayed possession, calculated at the rate of 18 per cent p.a. onthe amount deposited with the developer from the date on whichactual possession was to be delivered (March 2015) and in casedeveloper failed to deliver the possession of the apartment withinsix months, refund of the principal amount of Rs 2,23,91,480, withinterest at 18 per cent p.a. from the date the amount was paid by theallottee to the developer– Inspite of interim direction of NCDRC tohandover possession, the same was not given – On 17 May 2018,allottee filed IA bringing on record several photographs showingthat the apartment was not ready and was not in a habitablecondition – On 25 September 2018, developer sent email that dueto limited work force, the finishing work was slow – By impugnedjudgment, the NCDRC held that the developer did not contest thatan amount of Rs 2,23,91,480 was paid by the allottee – It thennoted that the allottee would be considered as a consumer withinthe meaning of s.2(1)(d) of the Act since the developer had notbrought on record anything to prove that the allottee was indulgingin the business of buying/selling apartments – NCDRC ordered arefund of Rs 2,23,91,480 with simple interest at the rate of 10.25per cent per annum, which it noted was the rate of interest payableunder the Real Estate (Regulation and Development) Act 2016 inHaryana in respect of cases where refund is made to flat buyersdue to the delay of the developer in handing over possession –Hence instant appeal – Held: It is apparent that the developer was

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Anot in a position to comply with the interim order of the NCDRC forthe handing over of possession – Though the interim direction wasissued on 16 February 2018, the email of the developer dated 25September 2018 indicated that possession could not be handed overdue to the absence of an adequate work force at the site – Thus, itis evident that the developer was not in a position to hand overBpossession of the apartment even after the interim order – In thisbackdrop, the order of the NCDRC for the grant of refund at theappropriate rate of interest cannot be faulted – In another set ofappeals, the finding of fact recorded by the NCDRC in its impugnedjudgment dated 22 November 2021 was that the amenities whichCwere promised by the developerwere not provided in the Projectand the apartment – In view of the matter, the direction for the refundof the amount paid together with interest, cannot be faulted – Thedeveloper made a solemn representation to the flat buyer of theamenities which would be provided in the flat and the Project – Abreach of this representation is actionable at law.D

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. In the present case, since the Fire NOC wasonly granted on 25 September 2013, the period for delivery ofpossession of the apartment (the forty-two months period, alongEwith the 180 days’ grace period) would end on 24 September2017. The appellant issued a notice of possession to the firstrespondent on 25 September 2017. However, even if thissubmission of the appellant is accepted, it is apparent that theappellant was not in a position to comply with the interim orderof the NCDRC for the handing over of possession. Though theFinterim direction was issued on 16 February 2018, the email ofthe appellant dated 25 September 2018 indicates that possessioncould not be handed over due to the absence of an adequate workforce at the site. Thus, it is evident that the appellant was not ina position to hand over possession of the apartment even afterGthe interim order. In this backdrop, the order of the NCDRC forthe grant of refund at the appropriate rate of interest cannot befaulted. [Paras 20, 21][423-G-H; 424-A-C]

IREO Grace Realtech Private Limitedv.AbhishekKhanna and Others (2021) 3 SCC 241 – distinguished.

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2.1 In Civil Appeal No 268 of 2022, the first respondentwas allotted an apartment in Tower D of the Project. The ABAwas signed on 6 September 2013. The appellant issued a noticeof possession on 6 September 2016. The first respondent fileda consumer complaint before the NCDRC on 14 February 2017seeking a refund of the amount paid with interest at 18 per centper annum or the possession of the apartment, if the appellantwas willing to complete the apartment in accordance with thespecifications in the ABA in a time bound manner and not chargeany further amount over and above the sale consideration. Byits judgment dated 22 November 2021, which takes note of thedecision of this Court in Abhishek Khanna, the NCDRC directedthe appellant to refund the principal amount to the firstrespondent with interest at the rate of 10.25 per cent per annum.[Para 23][424-D-F]

2.2 The finding of fact which has been recorded by theNCDRC in its impugned judgment dated 22 November 2021 isthat the amenities which were promised by the appellant havenot been provided in the Project and the apartment. In the courseof discussion, the NCDRC has, in fact, tabulated the amenitieswhich were to be but have not been provided. In this view of thematter, the direction for the refund of the amount paid togetherwith interest, cannot be faulted. The appellant made a solemnrepresentation to the flat buyer of the amenities which would beprovided in the flat and the Project. A breach of this representationis actionable at law. [Para 25][424-G-H; 425-A-B]

Siddharth Vasisht v. lREO Pvt. Ltd. and Ors. ConsumerCase No 1062 of 2018; Shamshul Hoda Khan v. IREOVictory Valley Pvt. Ltd. and Anr. Consumer Case No2110 of 2016 – referred to.

Case Law Reference

(2021) 3 SCC 241distinguished

Para 16

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 180 of2022.

From the Judgment and Order dated 01.11.2021 of the NationalConsumer Disputes Redressal Commission, New Delhi in ConsumerComplaint No.1277 of 2017.

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Civil Appeal No. 268 of 2022.

Ankur Saigal, E. C. Agrawala, Advs. for the Appellant.

Ms. Nina R. Nariman, Aditya Parolia, Piyush Singh, NithinCChandaran, Akshay Srivastava, Sumbul Ismail, Rajesh Kumar, GauravGoel, Vaibhav Gaggar, Ms. Sumedha Dan, Utkarss Tiwari, Pai Amit,Advs. for the Respondents.

The Judgment of the Court was delivered by DDR. DHANANJAYA Y CHANDRACHUD, J.

1. The appeals under Section 23 of the Consumer Protection Act1986[1] arise from the decision of the National Consumer DisputesRedressal Commission[2] on complaints which were instituted against theappellant by the allotees of its housing project called ‘SKYON’, locatedEat Golf Course Extension Road in Sector 60 of Gurgaon, Haryana[3]. Theappellant advertised that the Project offered state of the art facilitiessuch as home automation devices, Wi-Fi and high-end video door securitysystems in each apartment.

2. The Building Plans for the Project were approved by theFDirectorate of Town and Country Planning, Haryana[4] on 27 September2011, subject to certain terms and conditions to be fulfilled by the appellant.Thereafter, on 31 July 2012, the State Environment Impact AssessmentAuthority, Haryana granted an Environment Clearance for the Project.

3. The appellant submitted an application to the Commissioner,GMunicipal Corporation, Gurgaon[5], for approval of the Fire Fighting 1 “COPRA”

2 “NCDRC”

3 “Project”

4 “TCP Haryana”

H5 “CMC Gurgaon”

Scheme for the Project on 16 January 2012. The CMC Gurgaon grantedthe approval on 25 September 2013[6].

4. On 26 August 2016, the Occupation Certificate was issued bythe Director General of TCP Haryana in respect of Tower D of theProject. Further, on 14 September 2017, the Occupation Certificate wasissued in respect of Tower B of the Project.

5. Other than these common facts in relation to the Project, theappeals arise from separate complaints and have distinct facts. However,they raise a common issue. Hence, we shall set out the facts of the leadappeal (Civil Appeal No 180 of 2022) in detail.

6. In Civil Appeal No 180 of 2022, the first respondent filed abooking application for an apartment in the Project on 22 December2010. An amount of Rs 15,00,000 was paid as booking amount by acheque dated 14 October 2010.

7. The appellant issued a letter offering allotment to the firstrespondent on 14 January 2011, by which the appellant allotted anapartment having a tentative super area of 2809 sq ft, bearing No B3203,Floor 31 in Tower B of the Project. The appellant and the first respondententered into an Apartment Buyers Agreement[7] on 14 February 2012.

8. Due to the apartment not being handed over in time by theappellant, the first respondent filed a consumer complaint[8] before theNCDRC on 3 May 2017. The reliefs claimed in the complaint were asfollows:

“i. Direct the Opposite Parties to handover possession of Unit tothe Complainant, complete in all respects and in conformity withthe Allotment Letter and Apartment Buyers’ Agreement, with alladditional facilities and as per quality standards promised andexecute all necessary and required documents in respect of thesaid apartment in favour of the Complainant within 6 months ofthis petition being filed before this Hon’ble Commission or asdirected by this Commission;

ii. Direct the Opposite Parties for an immediate 100% refund ofthe total principal amount of Rs. 2,23,91,480/- (Rupees Two Crore 6 “Fire NOC”

7 “ABA”

8 Consumer Complaint No 1277 of 2017

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ATwenty Three Lakh Ninety One Thousand Four Hundred andEighty Only) paid by the Complainant, along with a penal interestof 18% per annum from the date of the receipt of the paymentsmade to the Opposite Parties, in case the Opposite Parties cannotdeliver or fail to deliver the absolute, complete and final physicalpossession of the flat within a period of 6 months of this petitionBbeing filed before this Hon’ble Commission or as directed by thisHon’ble Commission;

iii. Direct the Opposite Parties to pay a delayed possessioncompensation equal to interest @ 18% per annum on the amountdeposited by the Complainant with the opposite Parties, with effectfrom March 2015 i.e. date when possession was promised, till thedate of actual possession is handed over by the Opposite Partiesalong with all necessary documents and common areas and facilitiesas promised during the initial booking made by the Complainant; C

[…]”D

From the prayers, it is clear that the first respondent sought adirection to the appellant to provide the apartment, compliant with all therequirements mentioned in the ABA, within six months of the complaint,i.e., by 3 November 2017. In relation to this prayer, the first respondentalso filed an interim application[9] before the NCDRC seeking a directionEto the appellant for the delivery of possession of the apartment. Alongwith this, the first respondent sought compensation for delayed possession,calculated at the rate of 18 per cent per annum on the amount depositedwith the appellant from the date on which actual possession was to bedelivered (March 2015). However, if the appellant failed to deliver theFpossession of the apartment within six months, the first respondent soughtthe refund of the principal amount of Rs 2,23,91,480, with interest at 18per cent per annum from the date the amount was paid by the firstrespondent to the appellant.

9. The appellant issued a notice to claim possession to the firstGrespondent on 25 September 2017. On 16 February 2018, the NCDRCpassed an interim order, inter alia, in relation to the interim application:

“Arguments on IA No. 17613 of 2017 filed by the complainantheard. By this application, complainant is seeking direction to the H9 IA No 17613 of 2017

opposite parties to deliver possession of the allotted apartmentbeing unit no. SY-B-32-03. Learned counsel for the complainantsubmits that he is ready and willing to take possession of the flatif found in fit condition and he is also ready and willing to pay thepayment raised by the opposite party subject to the decision inthis complaint. Learned counsel for the opposite party has noobjection if interim order is passed as stated by learned counselfor the complainant.

In view of the above, application is disposed of with the directionthat opposite parties shall deliver possession of the allottedapartment to the complainant on payment of demanded dues bythe complainant within one month of the date of payment. It ismade clear that this order is subject to final outcome of thecomplaint. Counsel for the opposite parties state that in view ofthe interim order passed today on the application of complainant,he does not press his IA No. 2661 and 2662 of 2018.”

10. On 17 May 2018, the first respondent filed another interimapplication bringing on record several photographs showing that theapartment was not complete and was not in a habitable condition. Inresponse to an email from the first respondent, the appellant sent thefollowing email on 25 September 2018:

“We have noted the content if your email and wish to apprise youthat due to limited workforce, the finishing work is slow at thesite. We expect the same to resume in full force in near futureand thereafter, we may look at completing the work at the earliestfor the handover.”

Thus, it is clear the apartment which had been offered forpossession by the appellant was not complete in all respects nor was it ina habitable condition.

11. By its judgment dated 1 November 2021, the NCDRC heldthat the appellant did not contest that an amount of Rs 2,23,91,480 hadbeen paid by the first respondent. It then noted that the first respondentwould be considered as a consumer within the meaning of Section2(1)(d) of COPRA since the appellant had not brought on recordanything to prove that the first respondent was indulging in the businessof buying/selling apartments. On merits, the NCDRC relied on a A

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Adecision rendered by it on 6 December 2019 in relation to the appellant’sProject (Siddharth Vasisht v. lREO Pvt. Ltd. and Ors[10]), whichwas upheld by this Court on 11 December 2020[11]. The NCDRC thusordered a refund of Rs 2,23,91,480 with simple interest at the rate of10.25 per cent per annum, which it noted was the rate of interest payableunder the Real Estate (Regulation and Development) Act 2016 inBHaryana in respect of cases where refund is made to flat buyers dueto the delay of the developer in handing over possession.

12. In Siddharth Vasisht (supra), relying on its previous decisionin Shamshul Hoda Khan v. IREO Victory Valley Pvt. Ltd. and Anr.[12],the NCDRC had rejected the appellant’s argument that the calculationCof the period for the delivery of possession of the apartment under Clause13.3 of the ABA would only start from the date the Fire NOC wasgranted. In Shamshul Hoda Khan (supra), the NCDRC had rejectedthe developer’s submission by noting that the Haryana Fire Service Act2009[13] did not prohibit the commencement of construction on a housingDproject after Building Approval was sanctioned and pending a Fire NOCif the Building Approval did not contain such a condition and, in anycase, the appellant had commenced construction on the housing projectbefore it received the Fire NOC. Similarly, in Siddharth Vasisht (supra),the NCDRC also noted that the appellant had commenced constructionEon the Project before it received the Fire NOC.

13. This Court rejected the appeal against the decision in SiddharthVasisht (supra) by relying on its earlier order dated 3 May 2019[14]rejecting the appeal against Shamshul Hoda Khan (supra). This Courthas thereafter rejected a review petition[15] against its order rejecting theFappeal against the decision in Shamshul Hoda Khan (supra) by anorder dated 15 October 2019, where it noted that the NCDRC hadcorrectly pointed out that since the appellant began construction beforethe Fire NOC was granted, it could not argue that the period for deliveryof possession should start only from the date the Fire NOC was granted.This Court held:G

10 Consumer Case No 1062 of 2018

11 Civil Appeal (Diary) No 21634 of 2020

12 Consumer Case No 2110 of 2016, decided on 17 January 2019

13 “HFS Act”

14 Civil Appeal No 4801 of 2019

H15 Review Petition (Civil) No 2339 of 2019

“Delay in filing the review petition is condoned.

The principal submission raised in the review petition is on thebasis of Section 15(1) of the Haryana Fire Service Act, 2009. It issubmitted that the construction of a building could only begin afterthe Fire Scheme was approved by the concerned authority and asthe Fire Safety Scheme in the present case was approved on28.10.2013 the period ought to be reckoned from that date.

The submission was dealt with by the National Commission andthe relevant portion from para 10 was as under:

“It is an admitted position that the opposite party had been raisingdemand based upon the stage of construction even prior to28.10.2013 when the first fire safety clearance came to be issued.The payment plan agreed between the parties envisaged paymentof the 3[rd] instalment on commencement of excavation, 4[th] oncasting of basement roof slab and the 5[th] on casting of groundfloor roof slab. The 6[th] instalment was payable on casting of 3[rd]floor roof slab. It is an admitted position that even the 4[th] instalmentwhich was payable on casting of basement roof slab wasdemanded on 5.2.2013. The 5[th] and 6[th] instalments were demandedon 21.3.2013 and 18.9.2013 respectively. Admittedly, the fire safetyclearance had not been received by that time.”

In view of the circumstances on record this Court refused tointerfere and dismissed the civil appeal.

We have gone through the review petition and do not find anysubstance in the submissions raised therein. This review petitionis, therefore, dismissed.”

14. In the present appeal, Mr Ankur Saigal, learned Counselappearing on behalf of the appellant, has submitted that:

(i) Clause 13.3 of the ABA stipulates that possession wouldbe handed over within forty-two months after the pre-conditions were fulfilled, and there was a grace period of180 days. It has been submitted that the Building Plansanctioned on 27 September 2011 contained a requirementof a Fire NOC, and the Fire NOC was received only on 25September 2013. Hence, the contractual date for handingover possession, including the 180 days’ grace period, would A

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420SUPREME COURT REPORTS

Abe 24 September 2017. In this context, reliance has beenplaced on the communication of the appellant dated 25September 2017 making an offer of possession;

(ii) In view of the judgment of this Court dated 11 January2021 in IREO Grace Realtech Private Limited v. AbhishekBKhanna and Others[16], the period for delivery of possessionbegins only from the date the Fire NOC is granted; and

(iii) A direction for refund together with interest was notwarranted because the relief sought in the consumercomplaint before the NCDRC was possession of the flatCand the prayer for refund was set up in the alternate, in theevent that possession could not be offered. Since theappellant offered possession within the contractual period,there is no valid basis to order a refund.

15. Opposing these submissions, Ms Nina R Nariman, learnedDCounsel appearing on behalf of the first respondent, submitted that:

(i) The first respondent moved an interim application beforethe NCDRC seeking a direction for the delivery ofpossession. On 16 February 2018, the NCDRC disposed itoff with a direction to the appellant to deliver possessionEupon the payment of the outstanding dues, within a monthof the date of payment;

(ii) On 25 September 2018, nearly seven months after theinterim order of the NCDRC, the appellant addressed anemail, inter alia, stating that “…due to limited workforce,Fthe finishing work is slow at the site”. The appellant’semail stated that it expected “the same to resume in fullforce in near future and thereafter…may look atcompleting the work at the earliest for the handover”.In view of the above email, the appellant was not in aposition to hand over possession even as on 25 SeptemberG2018; and

(iii) The construction of the Project started even before theissuance of the Fire NOC, as is apparent from the fact thatletters of demand were addressed to the first respondent H16 (2021) 3 SCC 241

commensurate with the casting of slabs on 18 February2013, 27 May 2013 and 3 December 2013. Hence, the pleathat the period for the delivery of possession of the apartmentcommenced only from the date of the Fire NOC is nottenable.

16. The primary relief which was sought by the appellant beforethe NCDRC was the handing over of possession of the flat allottedunder the ABA. The bona fides of the first respondent are apparentfrom the fact that interim application was moved before the NCDRCfor handing over possession. In other words, consistent with the plea inthe complaint, the first respondent sought possession in the first instance.An interim order was passed on 16 February 2018 directing the appellantto hand over possession.

17. The core submission of the appellant is that the date for handingover possession would be 24 September 2017, having regard to theprovisions of Clause 13.3 of the ABA. Clause 13.3 provided as follows:

“13.3 Subject to Force Majeure, as defined herein and furthersubject to the Allottee having complied with all its obligations underthe terms and conditions of this Agreement and not being in defaultof any provision(s) of this Agreement including but not limited tothe timely payment of all dues and charges including the total SaleConsideration, registration charges, stamp duty and other chargesand also subject to the Allottee having complied with all formalitiesor documentation as prescribed by the Company, the Companyproposes to hand over the possession of the said Apartment to theAllottee within a period of 42 (forty two) months from the date ofapproval of the Building Plans and/or fulfillment of thepreconditions imposed thereunder (‘Commitment Period’). TheAllottee further agrees and understands that the Company shalladditionally be entitled to a period of 180 days (‘Grace Period’),after the expiry of the said Commitment Period to allow forunforeseen delays in obtaining the Occupation Certificate etc.,from the DTCP under the Act, in respect of SKYON Project.”

18. According to the appellant, in terms of the above clause, thedate by when the offer of possession could be made would be 24September 2017. This submission runs contrary to the orders of thisCourt dismissing the appeals against NCDRC’s decisions in ShamshulHoda Khan (supra) and Siddharth Vasisht (supra), both of which are A

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Aof two-judge Benches. However, in support of this proposition, theappellant has placed reliance on the decision of this Court in AbhishekKhanna (supra), which is a decision by a three-judge Bench.

19. In Abhishek Khanna (supra), which was in relation to anotherhousing project of the appellant, one of the issues before this Court was:

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“22.1. (i) Determination of the date from which the 42 monthsperiod for handing over possession is to be calculated under Clause13.3, whether it would be from the date of issuance of the fireNOC as contended by the developer; or, from the date of sanctionof the building plans, as contended by the apartment buyers.”C

After analysing the provisions of the HFS Act, Clause 13.3 of theABA (which contained the same condition as the ABA in this case, thatthe period for delivery of possession would commence from the “dateof approval of the Building Plans and/or fulfillment of thepreconditions imposed thereunder”), and Clauses 3 and 17(iv) of theDsanctioned Building Approval (which are identical to Clauses 3[17] and17(v)[18] of the sanctioned Building Approval in the present case), theCourt held that the period for delivery of possession would only commencefrom the date the Fire NOC was granted. This Court held:

E17 “3. FIRE SAFETY:

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E17 “3. FIRE SAFETY:

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On receipt of the above request the Commissioner, Municipal Corporation, Gurgaonafter satisfying himself that the entire fire protection measures proposed for the abovebuildings are as per NBC and other Fire Safety Bye Laws, and would issue a NOC fromFire safety and means of escape/access point of view. This clearance/NOC from FireAuthority shall be submitted in this office along with a set of plans duly signed by theFCommissioner, Municipal Corporation, Gurgaon within a period of 90 days from thedate of issuance of sanction of building plans. Further, it is also made clear that nopermission for occupancy of the building shall be issued by Commissioner, MunicipalCorporation, Gurgaon unless he is satisfied that adequate firefighting measures havebeen installed by you and suitable external firefighting infrastructure has been createdat Gurgaon, by Municipal Corporation, Gurgaon. A clearance to this effect shall beobtained from the Commissioner, Municipal Corporation, Gurgaon before grant ofGoccupation certificate by the Director General.”

18 “17. GENERAL:-

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(v) That the colonizer shall obtain the clearance/NOC as per the provisions of theNotification No. S.O. 1533 (E) Dated 14.09.2006 issued by Ministry of Environmentand Forest, Government of India before starting the construction/execution ofHdevelopment works at site.”

“25.7. The environmental clearance granted by the Ministry ofEnvironment & Forest Government of Haryana on 12-12-2013required the developer to submit a copy of the fire safety planapproved by the Fire Department, before commencing constructionof the project. General Condition (vi) under Part B of theenvironmental clearance stipulated that the developer shall obtainall other statutory clearances, including the approval from the FireDepartment, prior to construction of the project. Clause (vi)provides that:

“(vi) All other statutory clearance such as the approvals for storageof diesel from Chief Controller of Explosive, Fire Department,Civil Aviation Department, Forest Conservation Act, 1980 andWild Life (Protection) Act, 1972, Forest Act, 1927, PLPA 1900,etc. shall be obtained as applicable by project proponentsfrom the respective authorities prior to construction of theproject.”

(emphasis supplied)

25.8. We are of the view that it was a mandatory requirementunder the Haryana Fire Service Act, 2009 to obtain the fire NOCbefore commencement of construction activity. This requirementis stipulated in the sanctioned building plans, as also in theenvironment clearance.

25.9. The 42 months’ period in Clause 13.3 of the Agreement forhanding over possession of the apartments would be required tobe computed from the date on which fire NOC was issued, andnot from the date of the building plans being sanctioned.”

Based on this, the Court held[19] that allottees who had been offeredpossession and in respect of whose apartments the Occupation Certificatehad been issued, were bound to take possession (after having been paidcompensation for the delay in offering possession) and could not terminatethe ABA. However, it is important to note that the Court found that theconstruction in respect of their apartments was complete.

20. In the present case, since the Fire NOC was only granted on25 September 2013, the period for delivery of possession of the apartment(the forty-two months period, along with the 180 days’ grace period)

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Awould end on 24 September 2017. The appellant issued a notice ofpossession to the first respondent on 25 September 2017.

21. However, even if this submission of the appellant is accepted,it is apparent that the appellant was not in a position to comply with theinterim order of the NCDRC for the handing over of possession. ThoughBthe interim direction was issued on 16 February 2018, the email of theappellant dated 25 September 2018 indicates that possession could notbe handed over due to the absence of an adequate work force at thesite. Thus, it is evident that the appellant was not in a position to handover possession of the apartment even after the interim order. In thisbackdrop, the order of the NCDRC for the grant of refund at theCappropriate rate of interest cannot be faulted.

22. For the above reasons, we affirm the judgment of the NCDRC,since the position in the present case is distinguishable from the factsbefore this Court in Abhishek Khanna (supra).

D23. In Civil Appeal No 268 of 2022, the first respondent was allottedan apartment in Tower D of the Project. The ABA was signed on 6September 2013. The appellant issued a notice of possession on 6September 2016. The first respondent filed a consumer complaint[20] beforethe NCDRC on 14 February 2017 seeking a refund of the amount paidwith interest at 18 per cent per annum or the possession of the apartment,Eif the appellant was willing to complete the apartment in accordancewith the specifications in the ABA in a time bound manner and not chargeany further amount over and above the sale consideration. By its judgmentdated 22 November 2021, which takes note of the decision of this Courtin Abhishek Khanna (supra), the NCDRC directed the appellant toFrefund the principal amount to the first respondent with interest at therate of 10.25 per cent per annum.24. We have heard Mr Ankur Saigal, learned Counsel for theappellant and Mr. Vaibhav Gaggar, learned Counsel for the respondent.

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25. The finding of fact which has been recorded by the NCDRCGin its impugned judgment dated 22 November 2021 is that the amenitieswhich were promised by the appellant have not been provided in theProject and the apartment. In the course of discussion, the NCDRChas, in fact, tabulated the amenities which were to be but have not been provided. In this view of the matter, the direction for the refund of theamount paid together with interest, cannot be faulted. The appellant madea solemn representation to the flat buyer of the amenities which wouldbe provided in the flat and the Project. A breach of this representation isactionable at law.

26. The appeals are accordingly dismissed.

27. Pending applications, if any, stand disposed of.

Devika Gujral

Appeals dismissed.

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