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

The complainant booked a residential flat/floor with the opposite party in a project, namely, 'Anthea Floors Wildflower Country' which the opposite party was to develop in Gurgaon. Floor No.01 in Block-F was allotted to the complainant for a consideration of Rs.1,04,35,422/-.  The parties then entered into a Buyers Agreement dated 28.10.2011, incorporating their respective obligations.  In terms of clause 4.a (i) of the said agreement, the possession of the floor was to be delivered to the complainant within 36 months from its execution though the OP was entitled to a grace period of three months.  The possession therefore, ought to have been delivered by 28.10.2014 and in any case, by 28.01.2015.   The possession of the flat having not been delivered to him, despite he having already paid an amount of Rs.46,18,256/- towards part consideration and Rs.11,000/- towards interest in delayed payment to the OP, the complainant is seeking refund of the amount of Rs.46,18,256/- with compensation etc.  

2.      The opposite party did not file the written version and its right to file the written version was therefore, closed vide order dated 17.07.2017.  I have heard the learned counsel for the parties 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 clearly show the allotment made to him as well as the payment received by the OP from him.  The said affidavit also shows that the possession of the flat/floor has not even been offered to the complainant.  He is therefore, entitled to refund of the entire principal amount of Rs.46,18,256/- alongwith compensation in the form of interest. 

3.      The learned counsel for the complainant states on instructions that the complainant is restricting his claim for compensation to simple interest @ 12% per annum in terms of clause 4.e. of the Buyers Agreement which reads as under:

“4.e     Inability to offer floor:

            That if for any reason whatsoever, the developer is unable to offer the allotted floor to the purchaser(s), as agreed herein, the developer will offer the purchaser(s) an alternative property in any complex developed, underdevelopment or proposed to be developed in the surrounding area/projects and if no alternate property is available the developer will refund the amount paid by the purchaser(s) in full with simple interest @ 12% per annum from the date of payment(s) by the purchaser(s).  The developer shall not in the event of such an eventuality be liable to pay any other damages, charges or compensation.”

4.      The learned counsel further submits that the matter is squarely covered by the decision of this Commission in Consumer Complaint No.199 of 2015 - Rakhee Dey & Ors. Vs. M/s Unitech Ltd. decided on 31.07.2017.  The order of this Commission in Rakhee Dey & Ors. (supra) to the extent it is relevant, reads as under:

8.         The complaint has been resisted by the OP on the grounds which this Commission has already rejected in a number of cases including consumer complaint no.591 of 2015 Dr. Sunil Tuli & Anr. Vs. M/s Unitech Limited & Anr. decided on 21.09.2016.  The aforesaid contention therefore, need not be considered again in the present complaint. 

9.         The learned counsel for the OP states on instructions that 50% of the ground development work has been done.  He further states on instructions from the Managing Directors of the OP that the OP is ready to give an undertaking from its Managing Directors to this Commission, stating therein that it shall complete the construction of all the flats, obtain the requisite occupancy certificate at its own responsibility and offer possession of the said flats to the concerned allottees within 24 to 36 months from today.  The aforesaid offer however, is not acceptable to any of the allottees who have either filed this complaint or have been permitted to be impleaded as parties to this complaint.  Their contention is that the OP having already delayed the completion of the project, is not entitled to any other indulgence.   This is also their contention that considering the past conduct of the OP, which is facing consumer complaints in thousands of numbers, there is no guarantee that the possession in terms of the aforesaid offer will actually be offered even if a suitable extension for this purpose is given by this Commission.  In my view, the OP having already substantially delayed the completion of the project, the allottees cannot be compelled to wait any more for the flats booked by them and therefore, they are entitled to seek refund of the amount paid by them alongwith appropriate compensation.

10.       Clause 4.e of the agreement which is stated to be identical in all the allotments, reads as under:

“4.e     Inability to offer floor:

            That if for any reason whatsoever, the developer is unable to offer the allotted floor to the purchaser(s), as agreed herein, the developer will offer the purchaser(s) an alternative property in any complex developed, underdevelopment or proposed to be developed in the surrounding area/projects and if no alternate property is available the developer will refund the amount paid by the purchaser(s) in full with simple interest @ 12% per annum from the date of payment(s) by the purchaser(s).  The developer shall not in the event of such an eventuality be liable to pay any other damages, charges or compensation.”

          The learned counsel for the complainants states on instructions that the complainants are restricting their claim to the refund of the amount paid by them alongwith compensation in the form of simple interest @ 12% per annum from the date of payment by them till the date on which the entire amount paid by them is refunded alongwith compensation in the form of interest in terms of this order.  The complaint is therefore, disposed of with the following directions:

1. The scope of this order is restricted to such of the allottees who are interested in seeking refund of the amount paid by them to the OP and have already not approached this Commission or any other Court or Forum for the redressal of his/her grievances.

2. The OP shall refund the entire amount taken from such of the allottees of the project namely ‘Anthea Floors Wildflower Country’, who are interested in taking refund of the amount paid by them to the OP alongwith compensation in the form of interest and have already not approached this Commission or any other Court or Forum for the redressal of their respective grievances.

3. The OP shall pay to the allottees referred in (1) and (2) above, compensation in the form of interest @ 12% per annum, on the entire amount paid by them to the OP, from the date of each payment till the date the entire amount is refunded alongwith compensation in the form of interest in terms of this order.

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

(i)      The opposite party shall refund the entire amount Rs.46,18,256/-taken from the complainant along with compensation in the form of simple interest @ 12% p.a. 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 opposite party shall 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.