JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainant in CC No. 1174 of 2016 namely Ritesh Sud booked a residential flat with the OP in a project namely ‘Unitech Anthea Floors, Wildflower Country’ which the OP was to develop in Sector-70 of Gurgaon. Vide allotment letter dated 29.02.2012, Flat No. F-40, IInd Floor in the aforesaid project was allotted to the complainant for a consideration of Rs.1,05,97,672/-. The parties then entered into a Buyers Agreement dated 13.03.2012, recording their respective obligations in respect of the aforesaid direction. In terms of clause 4.a.(i) of the said Buyers Agreement, the possession was to be delivered within 36 months of its execution, though the OP was also entitled to a grace period of 3 months. The grievance of the complainant is that the possession of the flat has not been delivered to him despite he having already paid a sum of Rs.47,84,475/- to the OP. The complainant is therefore, before this Commission seeking refund of the amount paid by him alongwith compensation etc. 2. The complainant in CC No. 1835 of 2016 namely Abhinav Nigam also booked a residential flat with the OP in the aforesaid project and Unit No. 01 in Block-F was allotted to the aforesaid complainant for a consideration of Rs.1,41,37,919/-. The parties then executed a Buyers Agreement with the OP on 10.10.2011 incorporating their respective obligations. In terms of clause 4.a.(i) of the said agreement, the possession was to be delivered within 36 months of its execution with the OP though the OP was entitled to a grace period of three months. The possession therefore, ought to have been offered latest by 10.01.2015. His grievance is that the possession has not been delivered to him despite he having already paid a sum of Rs.47,00,167/- to the OP. He is also before this Commission seeking refund of the amount paid by him alongwith compensation. 3. The OP did not file its written version in CC No. 1835 of 2016 and its right to file the said written version was closed vide order dated 17.04.2017. The written version however, has been filed in CC No. 1174 of 2016 and this is the contention of the learned counsel for the complainant that the complaint has been resisted on the very same grounds which this Commission has rejected in a number of consumer complaints. The aforesaid statement is not disputed by the learned counsel appearing for the OP. 4. The learned counsel for the complainants places reliance upon the decision of this Commission in Ravikant Bhatt & Anr. Vs. M/s Unitech Ltd. CC No. 1232 of 2015 decided on 22.09.2016. The aforesaid decision pertains to allotment of flats in this very project and to the extent it is relevant, reads as under: “2. The complaint has been resisted by the opposite party. It is alleged in the written version that the project Anthea Floors was a part of licensed plotted colony, namely, Nirvana Country III falling under License No.66 of 2011 dated 21.7.2011. Thus, the layout plan for the said colony had been approved on 21.7.2011. The opposite party applied for demarcation-cum-revised layout plan for Nirvana Country III on 19.9.2011. However, the said revised layout plan was not approved since Haryana Government was demanding charges, which the builders challenged before the Punjab and Haryana High Court by way of Writ Petition No.15537 of 2015. It is also stated in the affidavit filed by the opposite party by way of evidence that Govt. of India, Ministry of Environment and Forests had made it mandatory to obtain environmental clearance in respect of certain projects vide notification dated 14.9.2006 and the opposite party had submitted an application for obtaining the requisite environmental clearance in respect of Anthea Floors on 7.4.2012 but there was a delay on the part of the government authorities in granting the requisite clearance which came to be issued only on 10.1.2014. It is also stated in the said affidavit that as per clause 4(e) of the Buyer’s Agreement, in case the amount deposited by the complainants is to be refunded, the same would be refunded with simple interest @ 12% per annum and the prayer for refund with 18% interest is not maintainable. 3. As noted earlier, the opposite party had the requisite approval to the layout of the project in which the allotment was made to the complainants, the said approval having been granted way back on 21.7.2011. The opposite party submitted the revised layout plan on 19.9.2011. Despite a revised layout plan having already been submitted by that date, the opposite party did not disclose in the allotment letter issued to the complainant that they had submitted a revised layout plan for the project Anthea Floors on 19.9.2011 and the said revised plan was yet to be approved. If the opposite party wanted to develop the project only in accordance with the revised layout plan submitted on 19.9.2011, the aforesaid vital information ought to have been disclosed to the complainants at the time of booking of the flat. The Buyer’s Agreement with the complainants was executed on 20.3.2013. Even in the said Buyer’s Agreement, it was not disclosed that the opposite party did not intend to act upon the previously approved layout plan and had submitted a revised layout plan to the TCPO, which was yet to be approved. Had that been disclosed to the complainants, it is quite possible that they would have not have entered into the said agreement with the opposite party since, they could not have been sure that the opposite party which was yet to receive approval to the revised layout plan, would be able to deliver possession of the flat within 36 months from the date of the Buyer’s Agreement. 4. The revised layout plan, according to the opposite party could not be approved by Haryana Government since the External Development Charges (EDC) being demanded by the said Government were not acceptable to the opposite party which filed a Writ Petition before Punjab and Haryana High Court challenging the said charges. In my view, considering the contractual obligation incorporated in the Buyer’s Agreement to deliver possession within 36 months from the date of the said agreement, the opposite party ought to have paid the EDC and obtained approval to the revised layout plan instead of waiting for the outcome of the Writ Petition challenging the said charges. The opposite party even after paying the EDC as demanded by the Haryana Government could have challenged the said charges and sought refund from the Government. Such a course of action, however, was not adopted by the opposite party. 5. Admittedly, the Writ Petition filed by the opposite party challenging the demand of EDC has been dismissed by Punjab and Haryana High Court on 15.12.2015 though a Special Leave Petition against the aid order has been filed before the Hon’ble Supreme Court and a notice in the said petition has already been issued. The dismissal of the Writ Petition by Punjab and Haryana High Court implies that there was no merit in the challenge to the demand of EDC by Govt. of Haryana. Therefore, the failure of the Government to approve the revised layout plan is attributable solely to the decision of the opposite party not to pay the EDC and rather challenge the same by way of a Writ Petition. The complainants, in my view, cannot be made to suffer on account of the course of action adopted by the opposite party. 6. As regards the delay in obtaining the environmental clearance, the opposite party knew before accepting booking from the complainants and allotting a flat to them that since the size of the project was more than 20,000 sq.ft. of built up area, environmental clearance in terms of the Notification dated 14.9.2006 would be necessary and the said clearance would be given only after the project was approved by State Environment Impact Assessment Committee and then by State Level Environment Impact Assessment Authority. It was, therefore, necessary for the opposite party to either obtain the requisite environmental clearance before accepting the booking or at least inform the buyers that the construction would commence only after obtaining the requisite environmental clearance which they were yet to receive. This is particularly necessary in a case where the builder is promising delivery of the apartment in a time-bound manner linked with the date of the Buyer’s Agreement and not with the date on which the construction actually commences after obtaining all the requisite clearances. If such a disclosure is made to the buyer and still he chooses to make a booking knowing fully well that the builder may not be held responsible for the delay to this extent it is attributable solely to the concerned environmental authority, it will not be possible to hold the builder responsible for the delay in the aforesaid extent. 7. More importantly in the present case even after obtaining the requisite environmental clearance in January 2014, the opposite party has not even started construction of the flat which it had allotted to complainants. According to the learned counsel for the complainants even the excavation work at the site has not begun though the environmental clearance came to be accorded about 2 years and 8 months ago. The aforesaid conduct of the opposite party in not even starting the construction for about 32 months after obtaining the requisite environmental clearance clearly indicates that the delay in the project has occurred for reasons other than the time taken in obtaining the environmental clearance.” 5. The learned counsel for the complainants also relies upon the decision of this Commission in Rakhee Dey & Ors. Vs. M/s Unitech Ltd. CC No. 199 of 2015 decided on 31.07.2017 u/s 12(1)(c) of the Consumer Protection Act. 6. The learned counsel for the complainants state on instructions that in order to avoid any further litigation in the matter, the complainants are restricting their claim to refund of the entire principal amount paid by them alongwith 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.” 7. The complaint is therefore, disposed of with the following directions: (i) In CC No. 1174 of 2016, the OP shall refund the entire principal amount of Rs.47,84,475/- to the complainant and in CC No. 1835 of 2016, the OP shall refund the entire principal amount of Rs.47,00,167/- to the complainant alongwith compensation to both the complainants in the form of simple interest @ 12% per annum from the date of each payment till the date on which the compensation in the form of interest in terms of this order is actually refunded in both the cases. (ii) The OP shall also pay a sum of Rs.25,000/- as the cost of litigation in both the cases. (iii) The payment in terms of this order shall be made within three months from today in both the cases. | 
