JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

IA/2124/2018 (For early hearing)

         This is an application for pre-ponement of the date of hearing.  There is no objection to the said prayer.  The hearing of the complaint is pre-poned.  The application stands disposed of.

CC/878/2017

           Affidavit by way of evidence has already been filed by the complainant on 29.12.2017.  The said affidavit is taken on record.  The right of the OP to file its written version has already been closed vide order dated 31.01.2018. 

           The complainant booked a residential flat with the OP in a project namely ‘The Residences’ which the OP is developing in Sector-117 of Noida.  Vide letter dated 22.03.2012, flat bearing no. B2-07-0702 in the aforesaid project was allotted to the complainant for a consideration of Rs.63,33,990/-.  As per clause 5.A.(i), the possession was to be delivered to the complainant within 36 months.  The possession therefore, ought to have been delivered by 22.03.2015.  Since the possession in terms of the allotment has not been offered to the complainant, he is before this Commission seeking refund of the amount paid by him alongwith compensation etc. 

2.     As noted earlier, right of the OP to file its written version has already been closed.  I have heard the complainant and the learned counsel for the OP and have considered the affidavit filed by the complainant by way of evidence.

3.      The affidavit filed by the complainant coupled with the documents filed by him clearly shows the allotment made to him as well as the date by which the possession was to be delivered to him.  The opposite party having failed to deliver possession of the flat by the stipulated date, the complainant is entitled to refund of the amount paid by him to the opposite party.  

4.    The complainant submits that the matter is covered by several previous decisions of this Commission including its decision dated 14.07.2017 in CC No. 679 of 2016, Residencies Flat Buyers Association & Ors. Vs. M/s Unitech Ltd.  The decision of this Commission in Residencies Flat Buyers Association & Ors. (supra), to the extent it is relevant, reads as under:

“……. 3.      The complaint has been resisted by the OP which has alleged that the delay was caused on account of circumstances beyond its control such as agitation by farmers in Noida and Greater Noida and filing of writ petitions by the farmers before the Hon’ble High Court of Allahabad.  The OP, however, has not disputed the allotment made to the above-referred 43 flat buyers.

4.      The grounds on which this complaint has been opposed have repeatedly been rejected by this Commission in a large number of consumer complaints and, therefore, need not be dealt with again. Suffice it to say that there is no evidence to prove that construction of the flats allotted to the above-referred 43 flat buyers has been delayed on account of circumstances beyond the control of the OP. More importantly, even today, when more than 3 years have already expired from the date stipulated for commencement of possession, the completion of the construction is nowhere in sight and the OP is not in a position to give any particular time frame for completion of the said flats and offering their possession to the aforesaid 43 flat buyers.

5.      Clause 5 (D) of the Agreement executed between the OP and the flat buyers reads as under:-

“If for any reason the Developer is not in a position to offer the allotted Apartment, the Developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with Simple Interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

         ……… The complaint is, therefore, disposed of with the following directions:-

1. The opposite party shall refund the entire amount received by it from 43 flat buyers named in Annexure ‘A’ on page 88-89, Part-I, Vol.I of the file of this Commission, along with compensation in the form of simple interest @ 10% p.a. from the date of payment till the date on which the entire amount along with compensation in terms of this order is paid.
2. The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.
3. The payment in terms of this order shall be made within three months from today.
4. The payment shall be made directly to the concerned flat buyers by way of a demand draft/pay order in his/her/their name.”

5.     An appeal was preferred by the complainant against the above referred decision of this Commission but the said appeal was dismissed by the Hon’ble Supreme Court on 08.09.2017 in Civil Appeal No. 11048 of 2017. 

6.     The complainant who appears in person states that he is restricting his claim to the refund of the principal amount in the form of simple interest @ 10% per annum in terms of clause 5.d of the terms and conditions of the allotment letter which reads as under:

D. Default

If for any reason the developer in not in a position to offer the allotted apartment, the developer shall offer the allottee(s) an alternative property or refund the amount paid by the allottee(s) with simple interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.

7.     For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)       The OP shall refund the entire principal amount of Rs.61.30 lacs to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is refunded along with compensation in terms of this order.

(ii)        The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

(iii)     The payment in terms of this order shall be made within three months from today.