JUSTICE V.K.JAIN, (ORAL) The complainants booked a residential flat with the opposite party in a project, namely, 'Anthea Floors Wildflower Country' which the opposite party was to develop in Gurgaon. Vide letter dated 2.8.2011, Flat No.D-00-0007 in the aforesaid project was allotted to the complainants for a total consideration of Rs.15551603/-. The parties then entered into a Buyers Agreement dated 14.11.2011, incorporating their respective obligations in respect of the aforesaid transaction. In terms of clause 4.a (i) of the said agreement, the possession was to be delivered to the complainant within 36 months though the OP was also entitled to a grace period of three months. The possession thus ought to have been delivered latest by 14.02.2015. The possession having not been offered to them, despite they having already paid an amount of Rs.6679795/-, the complainants have approached this Commission seeking possession of the said flat along 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 21.10.2016. 3. I have heard the learned counsel for the parties and have considered the affidavit filed by the complainants by way of evidence. 4. The learned counsel for the complainants states on instructions that the complainants considering that the considerable delay in completion of the project and the fact that even now the OP has not come up with offer to give possession of the flat to the complainants, they are no more interested in waiting any more for the said possession and want refund of the amount paid by them to the OP along with compensation. He further submits, on instructions, that in order to avoid further litigation in the matter, the complainants are restricting their claim to refund of the principal amount paid by them along with compensation in the form of 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.” 5. The learned counsel further submits that though the OP has not filed its written version in this case, the grounds on which it had contested in several other consumer complaints in respect of this very project have already been rejected by this Commission in several decisions. Reliance in this regard is placed 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: 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. 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. 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 principal amount Rs.6679795/- to the complainants 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 complainants. (iii) The payment in terms of this order shall be made within three months from today. | 
