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

In the order dated 12.07.2017, the cause title has been wrongly typed.  The cause title in the order being passed today will also be read in the order dated 12.07.2017.

          This complaint u/s 12(1)(c) of the Consumer Protection Act has been filed on behalf of or for the benefit of all the allottees of the residential floors in a project namely ‘Anthea Floors Wildflower Country’, which the OP is to develop in Sector-70 of Gurgaon.  The grievance of the complainants is that though the OP had agreed, by way of the Buyers Agreement executed with the allottees, to offer the possession within three years from the execution of the said agreement, it has failed to offer possession of the flats despite the aforesaid deadline having expired between 2013 to 2015 in different cases and despite the allottees having already made substantial payment to it.  The complainants are therefore, before this Commission seeking refund of the amount paid by the aforesaid allottees alongwith compensation to them in the form of interest etc.

2.      Vide order dated 20.10.2015 passed in IA/7528/2015, this Commission directed issue of public notice in terms of Section 13(6) of the Consumer Protection Act read with Order 1 Rule 8 of the CPC to be published in Gurgaon edition of Times of India published from New Delhi.  The publication in terms of the aforesaid direction was duly carried out. 

3.      Vide order dated 18.10.2016, this Commission noticing that the prayer made in the complaint was restricted to the complainants, held that the complaint was not in conformity with the decision rendered by a three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd.  The complaint was therefore, dismissed without adjudicating upon its merits with liberty to file an appropriate complaint in conformity with the aforesaid decision. 

4.      Vide order dated 20.02.2017, passed in Civil Appeal No.12318 of 2016, the Hon’ble Supreme Court permitted the complainants to amend the complaint in order to bring it in conformity with the decision of the Full Bench in Ambrish Kumar Shukla (supra) and directed that if the amendment is accepted and the matter is taken up for disposal, this Commission shall make all endeavours to dispose of the matters as expeditiously as possible preferably within eight weeks of the acceptance of the amendment. 

5.      Pursuant to the liberty granted by the Hon’ble Supreme Court, an application seeking amendment of the complaint was filed and the said application was allowed vide order dated 22.03.2017.

6.      A revised public notice in conformity with the requirements laid down by this Commission in Ambrish Kumar Shukla (supra) was directed to be published in Times of India circulated in Delhi & NCR.  A fresh public notice was accordingly published in the aforesaid newspaper. 

7.      A number of applications were filed by the flat buyers in the aforesaid project seeking impleadment and the said applications were allowed by this Commission from time to time. 

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.

4. The OP shall pay a sum of Rs.50,000/- as cost of litigation which shall be deposited with the Legal Aid Account of NCDRC, as requested by the learned counsel for the complainants.

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