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

The complainant booked a residential flat with the opposite party in a project namely Espace Premier Nirvana Country-2 which the opposite party was to develop in Sector 70 of Gurgaon.  Vide allotment letter dated 24.3.2012, house No. B 038 in the above referred project was allotted to the complainant for a consideration of Rs. 4,37,98,966/-.  The parties then entered into a buyer’s agreement dated 19.4.2012 incorporating their respective obligations in respect of the aforesaid transactions.  In terms of Clause 4a (i) of the agreement, the possession of the villa was to be delivered to the complainant within 24 months, meaning thereby that the said possession ought to have been delivered by 19.4.2014.  The grievance of the complainant is that the possession of the villa has not been delivered to him despite he having already paid Rs. 1,05,53,125/- directly to the opposite party and Rs.3,32,45,841/- through his banker.  The complainant is therefore before this Commission seeking refund of the entire amount paid by him to the opposite party along with compensation etc. 

2.      The opposite party did not file its written version despite service and therefore its right to file the written version was closed vide order dated 06.2.2017.  I have heard the learned counsel for the complainant and have considered the affidavit filed by the complainant by way of evidence.  The affidavit filed by the complainant coupled with the documents filed by him prove the allotment made to him as well as the payment alleged to have been made by him to the opposite party directly as well as through his banker.  The buyer’s agreement executed between the parties would show that the possession ought to have been delivered by 19.4.2014.   The possession having not been offered, the complainant is entitled to refund of the amount paid by him along with compensation in the form of simple interest.

3.      The learned counsel for the complainant submits that though no written version has been filed in this case, several other consumer complaints in respect of the allotment made in this very project have already been allowed by this Commission.  A reference in this regard is made to Sudhanshu Pokhriyal Vs. M/s. Unitech Ltd., CC No. 368 of 2015 decided on 03.5.2017.  The order of this Commission in Sudhanshu, to the extent it is relevant reads as under:

          “2.       The complaint has been resisted by the OP on the grounds which this Commission has already rejected in several consumer complaints.  It is inter-alia stated in the reply filed by the opposite party that the construction of the project was affected due to shortage of water since the Hon’ble Punjab & Haryana High Court, vide order dated 16.07.2012, stopped the usage of underground water and directed use only of the treated water from the available Sewerage Treatment Plants. Since the availability of the sewerage treatment plants and water from such plants is very limited as compared to the requirement, it became difficult to maintain the timely schedule of construction. Relying upon clause 4(a) of the Buyers Agreement, it is claimed that the completion of the construction has been delayed on account of circumstances beyond the control of the opposite party. Relying upon clause 4(e), it is stated that in case the developer is unable to offer possession, it is liable either to offer an alternative property or to refund the amount received from the buyer alongwith interest @ 10% per annum. It is also claimed that as per clause 4(c)(iii) of the Buyers Agreement, in case of delay in delivering possession, the buyer is entitled to compensation @ Rs. 50/- per sq. yd. per month for the period the possession is delayed.

3.       In Captain Gurtaj Singh Sahni & Anr. Vs. Manager, Unitech Limited & Anr. and connected cases,  this Commission while allowing the complaints filed by the buyers of residential villa in the above referred project namely ‘Espace Premiere’, Nirvana Country-2, Sector-71 & 72, Gurgaon inter-alia held as under:

“3.      It would thus be seen that admittedly, the opposite party had entered into Buyers Agreement with the complainants and promised to offer possession within two years from the date on which the said Buyers Agreements were executed. It is also not in dispute that the opposite party has not been able to complete the construction of the villa though more than 1½ years have already expired from the date by which the last villa was to be handed over and more than three years have expired from the date by which the first villa was to be offered. Thus, the opposite party is at least 1½ years behind schedule in each case and it is not known when it would be able to complete the construction.

4.      During the course of hearing, I asked the representative of the opposite party to inform as to when it will be able to complete the construction of the villas and offer possession to the complainants. She states on instructions that the construction was likely to be completed within one year from the date on which it resumes but the opposite party cannot commit any particular date for resuming the construction of the villas.

5.      Since it is an admitted position that the opposite party had entered into Buyers Agreements with the complainants and deliver possession to them within 24 months of the said agreements, the direction sought by those complainants for completing the construction of the villas in a time bound manner is eminently justified in the facts and circumstances of the case. Taking into consideration all the facts and circumstances of the case, the opposite party, in my opinion, should resume the construction within three months from today, complete the same in all respects within one year thereafter and offer possession after obtaining the requisite completion certificate, within three months thereafter. Thus, the villas after completion of construction and obtaining the requisite completion certificate should be offered to the complainants on or before 18 months from the date of this order.

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.”

4.       The learned counsel for the OP states on instructions that the construction of the villa has started in December 2016, though she admits that the possession of construction is very slow.  She is not in a position to commit any particular time period for completion of construction and delivery of possession of the villa to the complainant.” 

4.      The learned counsel for the complainant further submits on instructions that the complainant is restricting his claim to the refund of the entire principal amount paid directly as well as through his banker alongwith compensation in the form of simple interest @ 10% per annum in terms of Clause 4e. of the Buyer’s Agreement which reads as under:

          “4.e   Inability to offer Villa:

          That if for any reason whatsoever the Developer is unable to offer the aforesaid Villa to the purchaser, as agreed herein, the Developer may offer the Purchaser(s) an alternate property or refund the amount in full with simple interest @ 10% per annum.  The developer shall not, in such an eventuality, be liable to pay any other charges or compensation.”

5.      The complaint is therefore disposed of with the following directions:

(i)      The opposite party shall refund the entire principal amount of Rs.4,37,98,966/- to the  complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund of the full amount along with compensation.

(ii)      The opposite party shall pay Rs.25,000/- as the cost to the complainant.

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