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

          The complainant booked a residential flat with the OP in a project namely ‘Uniworld City Heights’ in Kolkata.  Vide letter dated 06.05.2006, Flat No. 10-03-0502 in the above referred project was allotted to her for a consideration of Rs.59,50,200/-.  The parties then executed an agreement to sell on 10.05.2006.  As per clause 5(a) of the said agreement, the possession was to be delivered by 30.11.2009.  The grievance of the complainant is that the possession has not been offered to her despite she having already paid Rs.56,26,592/- to the OP.  The complainant is therefore, before this Commission seeking refund of the aforesaid amount alongwith compensation etc. 

2.      The OP has filed written version contesting the complaint but the learned counsel for the complainant submits that the grounds on which the complaint is contested, have already been rejected by this Commission in other Consumer Complaints against the OP.

3.      I have heard the learned counsel for the parties and have considered the affidavit filed by the complainant by way of evidence.  The OP has not filed its affidavit by way of evidence nor have they paid the interest imposed on 10.10.2018 while granting adjournment to them for this purpose.  The learned counsel for the OP expresses his inability to pay the cost.

4.      Admittedly, the OP does not dispute either the allotment made to the complainant or the payment received from her.  It is also not in dispute that the possession of the allotted flat has not been offered to her. 

5.      In Gyan Jotinder Singh Bindra & Anr. Vs. Bengal Unitech Universal Infrastructure Private Limited CC No.1421/2016 decided on 14.03.2019, the OP contested the complaint primarily on the ground that the possession could not be offered 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.  The learned counsel appearing for the OP admits that the present complaint is being contested on the same grounds and no additional ground has been pleaded by them. 

6.      In Gyan Jotinder Singh Bindra & Anr. (supra), this Commission inter-alia held as under:

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. 

7.      In Vikash Arora (supra) relating to another project of the OP namely ‘Harmony’ in Kolkata, the Consumer Complaint filed against the OP was resisting on similar grounds.  Rejecting the grounds on which the said complaint was contested, this Commission inter-alia held 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.”

8.      The learned counsel for the complainant states on instructions that in order to avoid further litigation in the matter, the complainant is restricting her claim to the refund of the entire principal amount paid by her 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.”

She also states that no alternative apartment has been offered to her by the OP.     

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

          (i) The OP shall refund the entire principal amount of Rs.56,26,592/-  to the complainant 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 complainant.

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