JUSTICE V.K. JAIN, (ORAL)

The complainants  booked a residential flat with the opposite party in a project, namely, ‘Harmony in Uniworld City’, which the opposite party was to develop in Kolkata.  An Agreement to Sell  was executed between the parties on 3.6.2008 for sell of apartment No.1901 in Tower-8 of the aforesaid project for a sale consideration of Rs.5968877/-.  In terms of Clause 5.a(i) of the said agreement, the possession of the apartment was  expected to be delivered to the complainants by 31.3.2011, subject of course to force majeure circumstances.  The possession of the apartment having not been delivered to them despite they having already paid Rs.57,39,895/-  to the opposite party, the complainants are, therefore, before this Commission seeking refund of the aforesaid amount  along with compensation etc.

2.      The OP was served on 16.11.2017 but it did not file its written version. Therefore, its right to file the written version was closed vide order dated 7.2.2018. I have heard the learned counsel for the parties and have considered the affidavit by way of evidence filed by the complainants. The documents filed by the complainants coupled with their evidence, prove the allotment made to them as well as payments made by them to the opposite party. Since the possession of the apartment was not offered to them by the date stipulated in the agreement, they are entitled to seek refund of the amount paid by them to the opposite party. The learned counsel for the complainants states that even otherwise the matter is fully covered by the previous decisions of this Commission. A reference in this regard interalia is made to Consumer Complaint No.654 of 2015 – Vikash Arora Vs. M/s Bengal Unitech Universal Infrastructure Pvt. Ltd., decided on 9.1.2017. The order 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.” 

3.      The learned counsel for the complainants  states on instructions that no alternative flat was offered to the complainants at any point of time and in any case they are restricting their claim to the refund of the principal amount paid by them along with compensation in the form of simple interest @ 10% per annum in terms of Clause 5.e of the Buyers Agreement, which reads as under:-

“That if for any reason the Developer is not in a position to offer the Apartment herein applied for allotment, the Developer shall offer the Purchaser an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay any damages or compensation.”

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

(i)      The opposite party shall refund the principal amount of Rs.57,39,895/-  to the complainants along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund with compensation.

(ii)      The opposite party shall pay Rs.25,000/- as cost of litigation to the complainants.

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