Brief Background:

The Complainants had booked a flat in Hamilton Heights, a project located in Faridabad, Haryana, being developed by Hamilton Heights Pvt. Ltd. On 14th October 2007, they paid an initial sum of ₹5 lakh out of the total sale consideration of ₹66,24,000/-. However, the builder delayed execution of the buyer’s agreement by 13 months, despite having collected additional instalments.

As per the terms of the buyer’s agreement, possession was to be delivered within 36 months—by December 2011. The agreement also included arbitrary and one-sided clauses, notably a forfeiture clause penalizing the buyer for non-acceptance. By December 2011, the Complainants had already paid ₹46,70,000/-. Despite this, the Developer failed to hand over possession and later extended the completion timeline to 1st February 2013, by which time the Complainants had paid a total of ₹69,94,488/-.

Upon inspecting the flat on 3rd April 2013, the Complainants discovered several construction defects and deficiencies. Despite repeated requests for rectification, the Developer not only failed to address the issues but also continued to demand additional payments. Crucially, the Developer had not obtained the mandatory occupation certificate by the time of offering possession.

The Complainants, feeling aggrieved, filed an FIR against the Developer in May 2014 and a separate complaint before the Punjab and Haryana High Court in August 2013. Parallelly, they approached the NCDRC for redress.

Allegations Against the Developer:

The Complainants alleged that the Developer:

• Unilaterally revised the flat area without consent,

• Failed to obtain necessary statutory clearances (including the OC),

• Diverted the funds collected for the flat towards other projects,

• Imposed highly unfair and one-sided terms in the agreement.

Developer’s Defence:

The Developer argued that:

• The occupation certificate was obtained in 2015,

• Possession was offered in 2013, but the Complainants refused to accept it,

• The complaint was time-barred, having been filed after an unjustified delay of four years,

• The FIR filed earlier had been dismissed,

• Delays were due to factors beyond their control, including payment defaults by other buyers,

• Changes in the flat area were made based on directions from competent authorities,

• The defects pointed out were minor and easily rectifiable.

Findings of the NCDRC:

The NCDRC rejected the Developer’s defence, observing that:

• Offering possession without an occupation certificate is inherently illegal and constitutes a clear deficiency in service and an unfair trade practice, as affirmed by the Supreme Court in Debashis Sinha v. R.N.R. Enterprise [2023 LiveLaw (SC) 92] and Samruddhi CHS v. Mumbai Mahalaxmi Construction Pvt. Ltd. [Appeal No. 4000 of 2019].

• The Developer’s claim of having offered possession with an occupation certificate surfaced only at a late stage of the proceedings, when the matter was reserved for final orders on 19th March 2025.

• No credible evidence was produced to show that a valid offer of possession was made or that it was properly communicated to the Complainants.

• A possession offer is valid only if accompanied by all statutory approvals, including the occupation certificate.

The Commission further relied on Experion Developers (P) Ltd. v. Sushma Ashok Shiroor [(2022) 15 SCC 286] to determine the appropriate interest rate for refund. It ruled that interest should be computed from the respective dates of deposit and not merely from the date of the last deposit.

Final Order:

The NCDRC directed Hamilton Heights Pvt. Ltd. to:

• Refund ₹68,94,488/- to the Complainants,

• Pay interest at 9% per annum from the respective dates of deposit until realization,

• Settle the dues within six weeks from the date of the order,

• In case of default, interest would escalate to 12% per annum on the outstanding amount,

• Additionally, pay ₹40,000/- towards legal costs.

Case Details:

• Title: Vaibhav Garg and Anr. vs Hamilton Heights Pvt. Ltd. and Anr.

• Case No.: Consumer Complaint No. NC/CC/496/2019

• Date of Pronouncement: 8th April 2025

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