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

           The complainant has filed affidavit by way of evidence as well as affidavit of admission/denial of documents.  The OP has not filed any affidavit.  The learned counsel for the OP submits that the matter is covered by previous decisions of this Commission in respect of this very project.  Since the OP has not filed any affidavit and the matter is covered by the previous decisions of this Commission, right of the OP to file affidavit by way of evidence stands closed. 

 2.      The complainant booked a residential for the use of its Director, in a project namely “Exquisite Nirvana Country-2” which the OP was to develop in Gurgaon.  Vide allotment letter dated 28.09.2010, residential flat no. A2-12-1201 in the aforesaid project was allotted to the complainant for a consideration of Rs.2,44,57,498/-.  The parties then entered into a sale agreement dated 01.11.2010, incorporating their respective obligations in respect of the flat booking.  As per clause 4.a(i) of the said agreement, the possession was to be delivered within 36 months of its execution, meaning thereby that the possession ought to have been delivered on 01.11.2013.  The possession having not been delivered, the complainant is before this Commission by way of this consumer complaint. 

3.      The OP has filed written version contesting the complaint primarily on the ground which are stated to have already been rejected by this Commission in a number of consumer complaints.  The allotment made to the complainant and the payment received from it have not been disputed. 

4.     The learned counsel for the complainants places reliance upon the decision of this Commission in CC No. 1100 of 2015 Vibha Gupta Vs. M/s Unitech Ltd. & other connected matters decided on 28.11.2016 and the decision of this Commission dated 30.09.2016 in CC No. 472 of 2015 Anil Kumar Gupta Vs. Unitech Ltd.

5.     The decision of this Commission in Vibha Gupta (supra) which pertains to this very project, to the extent it is relevant, reads as under:

5.    As regards the alleged non-availability of ground water on account of the use of ground water in building activities, having been stayed by the Punjab and Haryana High Court, the following view taken by this Commission in Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matters, decided on 2.5.2016 is pertinent:-

 “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.”

6.     The learned counsel for the complainant submits that in order to avoid any further litigation on the part of the OP, the complainant is restricting its claim to refund of the principal amount in the form of simple interest @ 10% per annum in terms of clause 4.e of the sale agreement which reads as under:

4.e. Default:

If for any reason the developer in not in a position to offer the apartment, as agreed herein, the developer  may offer the apartment allottee(s) alternative property or refund the amount paid by the apartment allottee(s) in full with interest @ 10% per annum from the date of payment(s) by the apartment allottee(s) without any further liability to pay any damages, charges or compensation.

Since the flat in question was booked for the personal residence of the Director of the company and not for the purposes of the company itself, the complainant would be consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act as held by a three-Members Bench of this Commission in CC No. 51 of 2006 Crompton Greaves Limited & Ors. Vs. Daimler Chrysler India Private Limited & Ors. decided on 08.07.2016.

7.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)   The OP shall refund the entire principal amount of Rs.2,37,83,922/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum 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 OP shall also 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.