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

          The complainant Rajeev Ranjan Vederah  booked a residential flat with the opposite party namely Unitech Limited  in a project namely ‘Unitech Exquisite Nirvana Country-2’, which the opposite party was to develop in Gurgaon.  Vide allotment letter dated 30.1.2013, Flat No. 01-08-0801 in the above referred project was allotted to him for a consideration of Rs.1,92,02,850/-.  The parties then executed a sale agreement on 26.12.2013, incorporating their respective obligations. As per Clause 4a(i) of the said agreement, the possession was to be delivered within thirty six months of its execution, meaning thereby that the possession ought to have been delivered by 26.12.2016.  The case of the complainant is that the possession of the allotted flat has not even been offered to him despite he having already paid Rs.1,82,71,550/- to the opposite party.  The complainant is therefore before this Commission, seeking refund of the amount paid by him, along with compensation etc.

2.      The opposite party had filed its written version contesting the complaint.  The allotment made to the complainant and the payment received from him was not disputed in the written version filed by the opposite party.  Since there was a delay in filing the written version, the said delay was condoned vide order dated 13.10.2017, subject to payment of Rs.25,000/- as cost to the complainant.  The cost however, has not been paid till date. 

3.      Vide order dated 08.2.2018, the written version filed by the opposite party was rejected on account of its not having paid the said cost. Thereafter, the learned counsel for the OP sought some more time to pay the costs imposed on 13.10.2017 and vide order dated 15.5.2018, it was granted two weeks to pay the said cost.  The cost has not been paid.  As a result the written version filed by the OP remains rejected.

4.      I have heard the learned counsel for the parties and have considered the affidavit filed by the complainant by way of evidence.

5.      As per Clause 4(a)(i) of the sale agreement, executed between the parties, the possession of the allotted flat ought to have been offered to the complainant by 26.12.2016.  That admittedly has not been done as the payment received by OP has also not been disputed.  Since the opposite party has failed to offer the possession of the allotted flat to the complainant, he is entitled to seek refund of the principal amount paid by him to the opposite party, along with compensation etc.

6.      The learned counsel for the complainant states on instructions that the complainant is restricting his claim to the refund of the principal amount paid by him to the opposite party in terms of the Clause 4(e) of the buyers agreement, which reads as under:

          “4.(e) Default

          If for any reason the developer is 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 Allotttee (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.”

7.          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.

8.           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.”

9.    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.1,82,71,550/- 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.