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

          Smt. Savitri Garg, and complainant No. 3 Mrs. Mridu Agarwal booked a residential flat with the opposite party in the project namely ‘Exquisite Nirvana Country-2’, which the OP was to develop in Gurgaon.  Vide allotment letter dated 19.6.2012, Flat No. J2-06-0601 in the above referred project was allotted to them for a consideration of Rs.1,57,12,850/-.  Thereafter, they executed an agreement with the OP on 30.7.2012, incorporating the respective rights and obligations of the parties in respect of the said allotment.  As per Clause 4(a)(i) of the agreement, the possession was to be offered within a period of 36 months from its execution.  The possession therefore, ought to have been offered by 30.7.2015.  The case of the complainant is that after execution of the agreement the name of Mrs. Savitri Garg was deleted from the allotment and the name of Anupam Gupta and Nirupam Agarwal was added.  This is sought to be proved by relying upon the receipts issued by the OP in favour of Anupam Gupta, Nirupam Agarwal and Mridu Agarwal on 01.3.2014, 5.2.2014, 18.4.2013, 4.4.2013, 6.3.2013 and other dates.

2.      The grievance of the complainant is that the possession has not even been offered to them despite they having paid Rs.1,53,40,630/- to the OP.  The complainants are therefore, before this Commission, seeking possession of the allotted flat, complete in all respects or in the alternative refund of the amount paid by them to the OP, along with compensation.

3.      The OP did not file its written version, despite service on 7.3.2019 and therefore its right to file written version was closed vide order dated 12.7.2019.

4.      I have heard the learned counsel for the parties and have considered the affidavits filed by the complainant by way of evidence.  The learned counsel for the complainants states on instructions from the complainants, including complainant No.1 Anupam Gupta, who is present in the Court, that the complainants do not wish to wait any more for the possession of the allotted flat and want refund of the amount paid by them to the OP, along with compensation etc.  He also states that the complainants are restricting the claim to the refund of the principal amount paid by them to the OP along with compensation in the form of simple interest @ 10% per annum, in terms of Clause 4(e) of the agreement, which reads as under:

          “4.(e) Default

          If for any reason the developer is not in a position to offer the Apartment, as agreed herein, the developer may offer the Apartment Allottee(s) alternative property or refund the amount paid by the Apartment Allotttee(s) in full with interest @ 10% per annum from the date of payment(s) by the Apartment Allottee(s) without any further liability to pay any damages, charges or compensation.”

5.      The learned counsel for the complainants submits that the matter is covered by the previous decisions of this Commission including its decision dated 09.05.2019 in CC No.2712 of 2017 Amal Ganguly & Anr. Vs. M/s Unitech Ltd., CC No.1100 of 2015 Vibha Gupta Vs. M/s Unitech Ltd. & other connected matters decided on 28.11.2016 and the decision of this Commission dated 30.09.2016 in CC No.472 of 2015 Anil Kumar Gupta Vs. Unitech Ltd.

6.      The decision of this Commission in Vibha Gupta (supra) which pertains to this very project, to the extent it is relevant, reads as under:

“5.    As regards the alleged non-availability of ground water on account of the use of ground water in building activities, having been stayed by the Punjab and Haryana High Court, the following view taken by this Commission in Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matters, decided on 2.5.2016 is pertinent:-

“6. The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section-5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were

made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.”

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.1,53,40,630/-  to the complainants alongwith compensation in the form of simple interest @ 10% per annum with effect from the date of each payment till the date of refund.

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

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