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

     This is a complaint filed u/s 12(1)(c) of the Consumer Protection Act on behalf of or for the benefit of such allottees of residential flats in a project namely ‘Vistas’ which the OP is developing in Sector-70 of Gurgaon who have not approached either this Commission or any other Consumer Forum by way of a consumer complaint.  The grievance of the complainants is that despite having promised to deliver possession of the flats by 2012 in some cases and by 2013 in some other cases, the OP has not been able even complete the construction of the said flats and in fact, in some towers, the construction is yet to commence.  The complainants are therefore, before this Commission with the following prayers:

1. Direct the OP to handover the possession of the apartments in the present project complete in all respects to the respective buyers/allottees/purchasers immediately as per the Buyers Agreement and execute all the necessary and required documents in respect of their respective apartment in favour of the buyers/allottees/purchasers or in alternative provide ready to move in apartments to the respective buyers/allottees which are of identical size and in similar locality or in alternative pay a sum calculated as per square area multiplied by Rs.10,000/- per Sq. feet being the available market rate of the similar house to enable the buyers/allottees to purchase another house on their own.

2. Direct the OP to pay compensation, to each of the buyers/allottees of houses in the present project for the delay in handing over the possession of the respective houses, in form of interest @ 12% per annum on the amount paid by them till date for the period starting from the committed date of possession till the actual possession of the apartments are handed over to the respective allottees/buyers.

3. Direct the OP to pay a sum of Rs.30,000/- to each of the buyers/allottees towards the mental agony, harassment and cost of litigation.

2.      The complaint has been opposed by the OP on the grounds which this Commission has repeatedly rejected in a number of consumer complaints including CC No.427/2014, Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd. and connected matters decided on 08.06.2015.  The appeals preferred by the OP against the aforesaid order of this Commission are still pending before the Hon’ble Supreme Court and some interim orders in those appeals are stated to have been passed.  Hence, the grounds taken by the OP need not be dealt with again in this order.  The fact remains that despite this Commission having directed delivery of possession in a time-bound manner in its order dated 08.06.2015, the OP has not completed the construction of the flats though as per the commitment made by the OP to the flat buyers during the pendency of the said complaint, the possession of the Blocks A-9 to A-11, B-1 to B-5 and C-1 to C-3 was to be delivered by 28.02.2016, 28.02.2017 & 28.02.2018 respectively.  It was also stated in the said schedule that the construction of blocks E-1 & E-2 will be completed by 30.05.2017, the construction of D-1 & D-2 will be completed by 31.10.2017 and construction of C-1 to C-3 will be completed by 31.12.2017.  It was also promised to the flat buyers that the OP shall also apply for grant of occupancy certificate by the aforesaid dates.  The OP having failed to honour the commitment contained in the aforesaid schedule, it has become necessary to fix a revised schedule for completion of the remaining construction in a time-bound manner and delivery of the possession of the apartments to the buyers after obtaining the requisite occupancy certificate.  The complaint is therefore, disposed of with the following directions:

(1)     The directions contained in this order shall apply to all such allottees of residential flats in the project ‘Vistas’ which the OP is developing in Sector-70 of Gurgaon, who have already not approached either this Commission or any other Court or Consumer Forum for the redressal of their grievances against the OP in respect of the flats booked by them in the aforesaid project. 

(2)     The OP shall complete the construction of all the flats allotted to the person for whose benefit this order is being passed, on or before 31.07.2018.  The OP shall also apply for grant of the requisite occupancy certificate on or before that date.

(3)     The OP shall obtain the requisite occupancy certificate at its own responsibility on or before 31.10.2017 and offer possession of the flats to the concerned allottees.

(4)     The OP shall pay compensation in the form of simple interest @ 8% per annum, to the aforesaid allottees w.e.f. the committed date of possession till the date on which the possession is actually delivered in terms of this order after obtaining the requisite occupancy certificate.  The compensation shall be paid on the amount already paid to the OP, by the date stipulated in the allotment letter/Buyers Agreement for the delivery of the possession.  Though the OP shall be entitled to raise additional demand in consonance with the allotment letter/Buyers Agreement on the construction reaching the prescribed level, it shall adjust the compensation payable in terms of this order and due till that date, out of the demand it may raise against the flat buyers.  Thus, the demand would be restricted to the balance amount if any after adjusting the compensation which has become payable by that time in terms of this order.   The compensation in the form of simple interest @ 8% per annum is acceptable to the complainants if the possession of the flat is delivered to them in terms of this order.

(5)     If the OP fails to complete the construction in terms of this order and apply for the occupancy certificate on or before 31.07.2018 or it having completed the construction and having applied for the grant of the occupancy certificate by 31.07.2018, fails to obtain the requisite occupancy certificate at its own responsibility by 31.10.2017, it shall refund the entire amount received from such allottees alongwith such compensation which the Hon’ble Supreme Court may finally award to the allottees of residential flats in the project ‘Vistas’ in the appeals preferred by the OP against the order of this Commission dated 08.06.2015 which are presently pending before the Hon’ble Supreme Court. 

(6)     The refund if it becomes payable in terms of this order, shall be paid within three months of the date on which it becomes payable or the date on which the Hon’ble Supreme Court finally decides the appeals preferred by the OP against the decision of this Commission in Satish Kumar Pandey (supra), whichever be later. 

(7)     The OP shall also pay a sum of Rs.25,000/- as the cost of litigation.  As requested by the learned counsel for the complainants, the aforesaid amount shall be deposited with the Legal Aid Account of NCDRC.

(8)     It is made clear that if any allottee wants to wait further for the possession of the flat allotted to him instead of taking refund despite having entitled to do so in terms of this order, it shall be open to such an allottee to wait for the possession of the flat allotted to him till the time deemed appropriate by him.  He will be entitled to exercise the option of receiving the refund in terms of this order with compensation as and when he chooses to give up the wait and seek refund of the amount paid by him. 

(9)     The allotment made to the above referred allottees shall not be cancelled by the OP till 31.10.2018.

3.      The learned counsel for the OP states that it will not be practicably possible for them to complete the construction of the flats in a rather short period of one year and therefore, they should be permitted to complete the construction in a staggered manner.  According to the learned counsel, the OP will be able to complete the construction of the flats in the following manner:

          However, in my view, considering the past conduct of the OP which has utterly failed to honour the commitment as per the schedule given earlier to this Commission, it is not entitled to an extension more than granted by this Commission.  This is more so when there is no guarantee that the OP will be able to complete the construction, obtain the requisite occupancy certificate and deliver possession of the flats even after a larger time is given for the purpose. 

4.      The learned counsel for the OP refers to the decision of Hon’ble Supreme Court in Gyani Chand Vs. State of A.P. Civil Appeal No.5728 of 2005 dated 20.09.2016.  The aforesaid judgment in my view, would have no applicability to the facts and circumstances of the case where the OP has already got more than two years to honour its commitment, in terms of the decision of this Commission dated 08.06.2015 in Satish Kumar Pandey (supra).