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

          The complainant namely Gyan Jotinder Singh Bindra and his wife Tejinder Bindra booked a residential flat with the OP in a project namely ‘Uniworld City Heights’ which the OP was to develop in Kolkata.  Vide allotment letter dated 11.05.2006, flat no. 10-23-2401 in the aforesaid project was allotted to them for a consideration of Rs.1,13,62,350/-.  The parties then executed an agreement dated 17.05.2005 incorporating their respective obligations in respect of the said allotment.  In terms of clause 5(a)(i) of the agreement, the possession of the apartment was to be delivered to the complainants by 30.11.2009.  The case of the complainants is that the possession was not even offered to them despite they having paid Rs.1,08,00,253/- to the OP.  The complainants are therefore, before this Commission seeking refund of the aforesaid amount alongwith compensation etc. 

2.      The OP has filed written version contesting the complaint.  However, neither the allotment made to the complainants nor the agreement executed with them has been disputed in the written version.  It is however, been alleged that there was delay due to delays in grant of statutory approvals and permissions related to infrastructural provisions related to road, electricity, water, sewerage and sanctions etc. which are beyond the control of the OP.  It is also alleged in the written version that as per the agreement between the parties, the OP would pay compensation to the complainants @ Rs.5 per sq. ft. per month for the period of delay in offering possession of the apartment.  It is also claimed that the work of external plastering is under progress whereas slab casting and brickwork is complete. 

3.      The complainants have filed affidavit by way of evidence, of one of them namely Mr. Gyan Jotinder Singh Bindra in support of the complaint.   Vide order dated 12.03.2018, it was noticed that the OP had not filed affidavit by way of evidence.  The OP was granted six weeks to file the said affidavit and the matter was listed for final hearing on 10.10.2018.   On 10.10.2018, it was noticed that the OP had still not filed its affidavit by way of evidence.  One more opportunity was granted to the OP to file its affidavit within eight weeks subject to payment of Rs.20,000/- as cost to the complainants.  Neither the said affidavit has been filed nor the cost has been paid. 

4.      It is contended by Mr. Babanjeet Singh, counsel for the OP that the complainants had booked two residential apartments with the OP and therefore, they cannot be said to be consumers of the OP.  He also submits that the possession of one of the apartments had been taken by the complainants in the year 2017.  However, on a perusal of the written version, I find that it contains no plea that having booked two residential apartments, the complainants are not consumers of the OP.  Had such an averment been made in the written version, the complainants would have got an opportunity to explain as to why they had booked two residential apartments.  It cannot be said that the complainants can never be the consumers of the OP only because they had booked two residential apartments with the OP.  There may be facts and circumstances justifying the booking of more than one apartment by the same person.  Unless such a plea is taken in the written version and an opportunity is given to the complainants to justify more than one bookings, it would be difficult to accept the contention raised at the time of arguments. 

5.      Coming to the merits of the case, I find that the plea taken in the written version is rather vague since it is not explained as to on which date the OP applied for grant of the requisite approvals and permissions relating to infrastructural provisions and when the said terms and approvals were granted.   It has to be kept in mind that the flat in question was booked way back in the year 2006.  More than twelve years have already expired since the time the flat was booked.  The possession of the flat was to be delivered in the year 2009.  More than nine years have since expired.  Even today, the OP is not in a position to offer possession of the allotted flat to the complainants since only the shell of the flat, according to the learned counsel for the OP, is ready.  However, the possession cannot be forced without completing the construction in all respects and obtaining the requisite Occupancy Certificate.  The complainants in these circumstances, are entitled to refund of the amount paid by them to the OP alongwith appropriate compensation. 

6.      The learned counsel for the complainants states on instructions that in order to avoid further litigation in the matter, the complainants are restricting their claim to the refund of the entire principal amount paid by them to the OP alongwith interest @ 10% per annum in terms of clause 5.e of the agreement which reads as under:

                    “5.e. Alternative property/compensation:

          If for any reason the develop is not in a position to offer the apartment herein applied for allotment, the developer shall offer the purchaser(s) an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay damages or compensation.”

7.      The learned counsel for the complainants further states that no alternative apartment has been offered to them by the OP. 

          The learned counsel for the complainants also states that several other consumer complaints contested by the OP on the same ground on which this complaint has been contested, have already been allowed by this Commission.  A reference in this regard is made to the decision of this Commission in ‘Vikash Arora Vs. M/s Bengal Unitech Universal Infrastructure Pvt. Ltd.’ CC No.654 of 2015, decided on 09.01.2017.  The decision of this Commission in Vikash Arora (supra) to the extent it is relevant, reads as under:

“3.     The complaint has been resisted by the OP which has inter-alia alleged that the delay in construction is attributable to the delay in obtaining the statutory approvals pertaining to road, electricity, water, sewerage etc. beyond the control of the OP.  It is further alleged that construction is in progress and the OP remains committed to deliver possession of the flats to the complainants. 

4.      The main question which arises for consideration in this complaint is as to whether the construction of the flat agreed to be sold to the complainants has been delayed on account of reasons beyond the control of the OP.  It has been vaguely alleged in the written version that there was delay in obtaining approvals and permissions required for infrastructural work, without disclosing when the approvals and permissions were applied and when they were granted.  The written version of the OP does not show what is the time normally taken for grant of such approvals and permissions and what was the time actually taken in this case.  The reply does not indicate the objections if any taken by the statutory authorities to the applications of the OP seeking the requisite approvals and permissions.  If the delay occurred on account of some defect or deficiency on the part of the OP itself, the statutory authorities cannot be blamed for the said delay.  Moreover, the delay in this case was very substantial, more than five years from the committed date of possession having already expired and the completion of the flat allotted to the complainants nowhere being in sight. 

5.      I also find no merit in the contention that in the event of delay, the complainants are entitled to the agreed compensation @ Rs.5/- per sq. ft. per month for the period of delay, in terms of clause 5.c.(ii) of the Agreement, since the above referred clause in my opinion applies to the cases where the allottee wants possession of the flat alongwith compensation and does not claim refund of the amount paid by him  alongwith compensation.  In any case, clause 5.e of the Agreement itself provides for refund alongwith interest @ 10% per annum in the cases where the developer is unable to deliver the possession of the flat to the buyer.” 

          Several other consumer complaints contested on the same grounds have thereafter, been allowed by this Commission relying upon its decision in ‘Vikash Arora (supra)’. 

8.      The complaint is therefore, disposed of with the following directions:

          (i) The OP shall refund the entire principal amount of Rs.1,08,00,253/-  to the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund.

          (ii) The OP shall pay a sum of Rs.25,000/- as the cost of litigation of the complainants.

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