This consumer complaint has been filed by the complainant namely M/s. Neeraj Jain & Co., against opposite parties namely M/s. Unitech Ltd. & Ors.  The brief facts of the consumer complaint are that the complainant booked a flat in the project namely “Unitech Habitat” of the opposite parties.  Vide allotment letter dated 25.08.2006, complainant was allotted Apartment No. 1404, Floor 13, HBTN Tower – 19, Unitech Habitat, Sector Pi – II, Greater Noida, District Gautam Budh Nagar, U.P. The possession was to be delivered by 2009.  The total consideration of the flat was ₹55,87,916/-.  The complainant paid an amount of ₹55,26,061/- till 15.10.2010.  However, the possession was not delivered in time.  The complainant has filed consumer complaint on 16.03.2015.  It has been alleged in the complaint that when the complainant visited the site after receiving the letter for possession, he came to know that the material used in the flat was not of standard quality. 

2.    The notice was issued to the opposite party to file the written statement.The opposite party filed its written statement.The opposite party resisted the complaint on the ground that possession was offered to the complainant on 20.05.2015 and complainant was also reminded to take possession, however, the complainant did not come forward to take the possession.It is further contended by the opposite party in its written statement that opposite party is in possession of the occupancy certificate dated 29.12.2010 in respect of the tower in which the flat of the complainant exists.

3.     Learned counsel for both the parties were directed to file their respective affidavits of evidence.Learned counsel for the complainant has filed affidavit of evidence on behalf of the complainant.However, no affidavit of evidence has been filed on behalf of the opposite party despite opportunity being granted to the opposite party.

4.     Heard the learned counsel for the complainant and examined the record as none appeared on behalf of the opposite parties.

5.     The learned counsel for the complainant stated that possession was to be delivered by June, 2009. However, the possession has not been given even after delay of two years from the due date of possession. It was stated that payments have been confirmed by the receipts w.e.f. 10.06.2006 to 15.10.2010 filed by the complainant.

6.    I have carefully considered the arguments of the learned counsel for the complainant and examined record. Clearly if the possession has not been given by the opposite party even after two years from due date of possession, the complainant is entitled to seek refund of his paid amount.  Even if the version of the opposite party that possession was offered on 20.05.2015 (actual letter 25.7.2015), after obtaining the occupation certificate on 29.12.2010, is taken to be correct, it is not clear as to why the possession was not offered after 29.12.2010 when the occupation certificate was already with the opposite party and the same was only offered after 5 years.  If there is a delay of about 6 years in offering the possession, the allottee cannot be directed to take the possession of the flat as the Hon’ble Supreme Court in Civil Appeal No.12238 of 2018 titled as “Pioneer Urban Land & Infrastructure Ltd. versus Govindan Raghavan” has upheld the order of this Commission by observing the following:

“3.8. The National Commission vide Final Judgment and Order dated 23.10.2018 allowed the Consumer Complaint filed by the Respondent - Flat Purchaser, and held that since the last date stipulated for construction had expired about 3 years before the Occupancy Certificate was obtained, the Respondent - Flat Purchaser could not be compelled to take possession at such a belated stage. The grounds urged by the Appellant - Builder for delay in handing over possession were not justified, so as to deny awarding compensation to the Respondent - Flat Purchaser. The clauses in the Agreement were held to be wholly one - sided, unfair, and not binding on the Respondent - Flat Purchaser. 6 The Appellant - Builder was directed to refund Rs. 4,48,43,026/- i.e. the amount deposited by the Respondent - Flat Purchaser, along with Interest @10.7% S.I. p.a. towards compensation.

9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant - Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent - Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent - Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent - Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent - Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent - Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.

10. The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed.”   

7.    The Hon’ble Supreme Court in the case of Kolkata West International Pvt. Ltd. Vs. Deva Asis Rudra, II (2019) CPJ 29 (SC) has reduced rate of interest on the amount of refund from 12% per annum awarded by this Commission to 9% per annum.   Relying upon this  judgment of the Hon’ble Supreme Court, the complaint no.723 of 2017 is allowed and opposite party is directed to refund the amount of ₹55,26,061/- alongwith interest @ 9% per annum from the date of respective deposits till actual payment.  This order be complied with by the opposite party within a period of 45 days from the date of receipt / service of this order.