1.       The brief admitted facts of the case are that the Complainant had booked three bedrooms flat bearing No. 203, Tower 20, in the project namely “Parsvnath Privilege” Complex, developed by the Opposite Party situated at Plot No.-11, Sector PI, Greater Noida and the allotment letter dated 23.02.2007 was issued to the Complainant. As per the terms of the agreement, the Complainant had so far, on various dates deposited a sum of Rs.51,32,213/- (Rupees Fifty One Lakhs Thirty Two Thousand Two Hundred and Thirteen Only) against the basic price of the flat i.e. Rs.57,45,862.5/-. A seller and buyer’s agreement dated 30.04.2007 was also executed between the parties. As per the agreement the Opposite Party was to deliver the possession of the subject flat within 36 months from the date of commencement of the construction. Admittedly, the construction had commenced in the year of 2007 and till date there is no offer of possession.

2.       The Complainant has contended that this amounts to deficiency in service and unfair trade practices and prayed that the Opposite Party be directed to pay Rs.1,56,01,927/- (Rupees One Crore Fifty Six Lakhs One Thousand Nine Hundred and Twenty Seven) which includes the principle amount and the interests at the rate of 24% per annum.

3.       The Opposite Party filed their written statement. It is submitted that the project could not be completed because of global recession in the construction market. It is also contended that the Complainant had booked the flat for investments purposes and it was purely for a commercial transaction and therefore he is not a consumer.

4.       Parties led their evidences. I have heard the arguments and perused the averments in the record.

5.       It is argued by the Learned Counsel for the Complainant that since till now the Opposite Party has failed to complete the construction which they were required to complete within 36 months from the date of commencement of the construction, and now more than 10 years have passed and they are still not in a position to offer the possession therefore they be directed to refund their money along with interests at the rate of 12% per annum in terms of the Clause 8(b) of the Buyer’s Agreement dated 30.04.2007. It is further argued that the Complainant although an NRI, but he had booked the said flat for residential purposes for his family and three children and not for the investment purposes.

6.       The Learned Counsel for the Opposite Party had agreed that he had not led any evidence to prove that the Complainant had booked the flat for investment purposes and not for the residential purposes. It is a settled position of law that the burden to prove the fact that the booking was made by the Complainant for investment purposes is upon the Opposite Party. The Opposite Party since had not brought to the notice of this Commission any facts which could suggest even remotely that the booking was made by the Complainant for investment purposes and not for the residential purposes for his family members. This argument has therefore no merit.

7.       My attention is also drawn to the earlier Orders of this Commission relating to the same project wherein this Commission had concluded that the Opposite Party is guilty of unfair trade practices and also deficient in service since it has failed to deliver the possession to the allottees within the agreed period. The evidences on record also prove that the Opposite Party had failed to honour its commitment under the agreement and has failed to deliver the possession within the stipulated period. The deficiency in service on the Opposite Party therefore stands proved.

8.       Since the Opposite Party is not in a position to give the possession of the flat and the buyer cannot be asked to go on waiting for an indefinite period. It has been so held by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan II (2009) CPJ 34 (SC) that where there is delay in handing over the possession, the allottee cannot be forced to wait indefinitely and compelled to take the possession of the flat and he is entitled for the refund of the money.

9.       The Opposite Party is liable to refund the deposited money to the Complainant. Parties are also bound by the terms and conditions of the agreement dated 30.04.2007. The clause 8(b) of the said agreement reads as under:

“8(b)  The area of the Flat agreed to be sold is provisional. If during the course of construction or otherwise the number of the Flat or its area or location changes, the final re-allocation will be done by the Developer whose decision shall be final and binding on the Buyer and the Buyer will have no claim on this account except that the price would be payable on the basis of the revised area of the Flat. In case for any reasons the whole or any part of the project is abandoned and/or the Flat agreed to be sold herein is deleted and by reasons thereof Developer is not in a positon to give possession of the Flat, the Buyer shall have no claim of any kind, whatsoever, against the Developers except to the refund of the amount paid with simple interest at the rate of 12% per annum till the date of refund.”

10.     In terms of this clause I hereby order the Opposite Party to refund the entire deposited amount to the Complainant within six weeks along with the interest at the rate of 12% per annum to be calculated from the date of respective deposits till the date of payment. The cost of litigation at the rate of Rs.25,000/- is also awarded to the Complainant.

11.     With these directions the Consumer Complaint stands disposed of.