JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) The complainants in these matters are the allottees of residential flats in a project namely “Anthea Floors”, which the opposite party Unitech Ltd. was to develop in Gurgaon. Their grievance is that in terms of Clause 4(a)(i) of the Buyers Agreement, the possession of the flats was to be delivered to them within thirty-six months of the execution of the said agreement, but the opposite party has failed to offer the said possession despite they having made substantial payment to the opposite party. The following are the details of the allotment made to the complainant, the date of allotment, the date of execution of the Buyers Agreement, the sale consideration agreed to be paid for the flats and the payment alleged to have been made by the complainants to the opposite party: S.No | Flat buyer/Complainant | Unit/Flat No. and Block No. | Date of Allotment | Date of Buyers Agreement | Total sale consideration In Rs. | Payment made till date | 1. | Saurabh Sachdev | 0090, Block-E | 02/08/2011 | 29/12/2011 | 1,07,60,342/- | 1,06,90,579/- | 2. | Anshu Sharma | 02-0055 Block-E | 02/08/2011 | 25/02/2012 | 54,34,274/- | 25,76,210/- | 3. | Anubhuti Mehta Sachdev | 0022 Block-F | 02/08/2011 | 29/12/2011 | 1,93,98,719/- | 1,92,20,367/- | 4. | Dr. GurinderHarnam Singh | 0093 Block-F | 02/08/2011 | November 2011 | 1,16,40,428/- | 37,95,527/- | 5. | Rajesh Khetarpal & Anr. | 0011 Block-D | 02/08/2011 | 27/10/2011 | 1,47,52,303/- | 63,85,737/- | 6. | Prashant Mehta | 0086 Block-E | 02/08/2011 | 29/12/2011 | 1,07,60,342/- | 44,83,413/- | 7. | Sangita Arora & Anr. | 02-0115 Block-F | 02/08/2011 | 02/11/2011 | 82,49,228/- | 36,42,848/- | 8. | Nishant Mehta | 0085 Block-E | 02/08/2011 | 29/12/2011 | 1,07,60,342/- | 44,85,388/- | 9. | Lalita Kapoor & Anr. | 02-0043 Block-E | 02/08/2011 | 02/11/2011 | 53,56,124/- | 23,88,696/- | 10. | Neha Sharma | 02-0067 Block-E | 02/08/2011 | 25/02/2012 | 56,56,124/- | 26,89,889/- | 11. | Lakshya Kumar Agarwal | 0053 Block-F | 25/11/2011 | 07/01/2012 | 1,04,35,422/- | 46,07,264/- | 12. | Mayank Sahai | 02-0071 Block-E | 02/08/2011 | 03/10/2011 | 58,84,274/- | 22,54,045/- | 13. | Vikas Kumar Goel | 0101 Block-F | 02/08/2011 | 02/11/2011 | 87,65,428/- | 38,63,617/- | 14. | Mamta Mittal & Anr. | 00-0059 Block-E | 02/08/2011 | 24/10/2011 | 82,62,274/- | 35,32,757/- | 15. | Sanjeev Malik & Anr. | 0095 Block-F | 23/09/2011 | 30/10/2012 | 84,10,428/- | 28,32,000/- | 16. | Pooja Malik & Anr. | 0056 Block-F | 02/08/2011 | 02/11/2011 | 1,51,37,814/- | 60,85,135/- | 17. | Amit kumar | 0009 Block-D | 02/08/2011 | 02/11/2011 | 97,89,353/- | 96,05,781/- | 18. | Alok Agarwal & Anr. | 0103 Block-E | 02/08/2011 | 03/01/2012 | 1,00,60,742/- | 98,66,126/- | | | | | | | | | |
Being aggrieved from the failure of the opposite party to offer possession of the flats allotted to them, the complainants are before this Commission, seeking refund of the amount paid by them, alongwith compensation. 2. The learned counsel for the complainants states on instructions from the complainants that in view of Clause 4e. of the Buyers Agreement, the complainants are restricting their claims to the refund of the amount paid by them along with compensation in the form of simple interest @ 12% per annum and cost of litigation. Clause 4e. of the Buyers Agreement reads as under: “4e. Inability to offer Floor: That if for any reason whatsoever, the Developer is unable to offer the allotted floor to the purchaser(s), as agreed herein, the developer will offer the Purchaser(s) an alternative property in any complex developed, under development or proposed to be developed in the surrounding area / projects and if no alternate property is available the developer will refund the amount paid by the Purchaser(s) in full with simple interest @ 12% per annum from the date of payment(s) by the Purchaser(s). The developer shall not in the event of such an eventuality be liable to pay any other damages, charges or compensation.” 3. The learned counsel for the complainants also submits that the grounds on which the complaint has been resisted have already been rejected by this Commission in several decisions including CC/591/2015 Dr. Sunil Tuli Vs. M/s. Unitech Ltd. decided on 21.9.2016, CC/359/2015 Arun Datta Vs. Unitech Ltd. decided on 6.4.2016 and CC/1232/2015 Ravikant Bhatt Vs. Unitech Ltd., decided on 22.9.2016 with respect to allotment of residential flats in this very project. The decision of this Commission in Ravikant Bhatt (supra) to the extent it is relevant, reads as under: 2. The complaint has been resisted by the opposite party. It is alleged in the written version that the project Anthea Floors was a part of licensed plotted colony, namely, Nirvana Country III falling under License No.66 of 2011 dated 21.7.2011. Thus, the layout plan for the said colony had been approved on 21.7.2011. The opposite party applied for demarcation-cum-revised layout plan for Nirvana Country III on 19.9.2011. However, the said revised layout plan was not approved since Haryana Government was demanding charges, which the builders challenged before the Punjab and Haryana High Court by way of Writ Petition No.15537 of 2015. It is also stated in the affidavit filed by the opposite party by way of evidence that Govt. of India, Ministry of Environment and Forests had made it mandatory to obtain environmental clearance in respect of certain projects vide notification dated 14.9.2006 and the opposite party had submitted an application for obtaining the requisite environmental clearance in respect of Anthea Floors on 7.4.2012 but there was a delay on the part of the government authorities in granting the requisite clearance which came to be issued only on 10.1.2014. It is also stated in the said affidavit that as per clause 4(e) of the Buyer’s Agreement, in case the amount deposited by the complainants is to be refunded, the same would be refunded with simple interest @ 12% per annum and the prayer for refund with 18% interest is not maintainable. 3. As noted earlier, the opposite party had the requisite approval to the layout of the project in which the allotment was made to the complainants, the said approval having been granted way back on 21.7.2011. The opposite party submitted the revised layout plan on 19.9.2011. Despite a revised layout plan having already been submitted by that date, the opposite party did not disclose in the allotment letter issued to the complainant that they had submitted a revised layout plan for the project Anthea Floors on 19.9.2011 and the said revised plan was yet to be approved. If the opposite party wanted to develop the project only in accordance with the revised layout plan submitted on 19.9.2011, the aforesaid vital information ought to have been disclosed to the complainants at the time of booking of the flat. The Buyer’s Agreement with the complainants was executed on 20.3.2013. Even in the said Buyer’s Agreement, it was not disclosed that the opposite party did not intend to act upon the previously approved layout plan and had submitted a revised layout plan to the TCPO, which was yet to be approved. Had that been disclosed to the complainants, it is quite possible that they would have not have entered into the said agreement with the opposite party since, they could not have been sure that the opposite party which was yet to receive approval to the revised layout plan, would be able to deliver possession of the flat within 36 months from the date of the Buyer’s Agreement. 4. The revised layout plan, according to the opposite party could not be approved by Haryana Government since the External Development Charges (EDC) being demanded by the said Government were not acceptable to the opposite party which filed a Writ Petition before Punjab and Haryana High Court challenging the said charges. In my view, considering the contractual obligation incorporated in the Buyer’s Agreement to deliver possession within 36 months from the date of the said agreement, the opposite party ought to have paid the EDC and obtained approval to the revised layout plan instead of waiting for the outcome of the Writ Petition challenging the said charges. The opposite party even after paying the EDC as demanded by the Haryana Government could have challenged the said charges and sought refund from the Government. Such a course of action, however, was not adopted by the opposite party. 5. Admittedly, the Writ Petition filed by the opposite party challenging the demand of EDC has been dismissed by Punjab and Haryana High Court on 15.12.2015 though a Special Leave Petition against the aid order has been filed before the Hon’ble Supreme Court and a notice in the said petition has already been issued. The dismissal of the Writ Petition by Punjab and Haryana High Court implies that there was no merit in the challenge to the demand of EDC by Govt. of Haryana. Therefore, the failure of the Government to approve the revised layout plan is attributable solely to the decision of the opposite party not to pay the EDC and rather challenge the same by way of a Writ Petition. The complainants, in my view, cannot be made to suffer on account of the course of action adopted by the opposite party. 6. As regards the delay in obtaining the environmental clearance, the opposite party knew before accepting booking from the complainants and allotting a flat to them that since the size of the project was more than 20,000 sq.ft. of built up area, environmental clearance in terms of the Notification dated 14.9.2006 would be necessary and the said clearance would be given only after the project was approved by State Environment Impact Assessment Committee and then by State Level Environment Impact Assessment Authority. It was, therefore, necessary for the opposite party to either obtain the requisite environmental clearance before accepting the booking or at least inform the buyers that the construction would commence only after obtaining the requisite environmental clearance which they were yet to receive. This is particularly necessary in a case where the builder is promising delivery of the apartment in a time-bound manner linked with the date of the Buyer’s Agreement and not with the date on which the construction actually commences after obtaining all the requisite clearances. If such a disclosure is made to the buyer and still he chooses to make a booking knowing fully well that the builder may not be held responsible for the delay to this extent it is attributable solely to the concerned environmental authority, it will not be possible to hold the builder responsible for the delay in the aforesaid extent. 7. More importantly in the present case even after obtaining the requisite environmental clearance in January 2014, the opposite party has not even started construction of the flat which it had allotted to complainants. According to the learned counsel for the complainants even the excavation work at the site has not begun though the environmental clearance came to be accorded about 2 years and 8 months ago. The aforesaid conduct of the opposite party in not even starting the construction for about 32 months after obtaining the requisite environmental clearance clearly indicates that the delay in the project has occurred for reasons other than the time taken in obtaining the environmental clearance. 4. For the reasons stated hereinabove, the complaints are disposed of with the following directions: In CC/1157/2015 (i) The opposite party shall refund the entire principal amount of Rs.1,06,90,579/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1158/2015 (i) The opposite party shall refund the entire principal amount of Rs. 25,76,210/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1159/2015 (i) The opposite party shall refund the entire principal amount of Rs. 1,92,20,367/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1160/2015 (i) The opposite party shall refund the entire principal amount of Rs. 37,95,527/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1161/2015 (i) The opposite party shall refund the entire principal amount of Rs. 63,85,737/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1162/2015 (i) The opposite party shall refund the entire principal amount of Rs. 44,83,413/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1163/2015 (i) The opposite party shall refund the entire principal amount of Rs. 36,42,848/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1164/2015 (i) The opposite party shall refund the entire principal amount of Rs. 44,85,388/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1165/2015 (i) The opposite party shall refund the entire principal amount of Rs. 23,88,696/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1420/2015 (i) The opposite party shall refund the entire principal amount of Rs. 26,89,889/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/50/2016 (i) The opposite party shall refund the entire principal amount of Rs. 46,07,264/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/51/2016 (i) The opposite party shall refund the entire principal amount of Rs. 22,54,045/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/52/2016 (i) The opposite party shall refund the entire principal amount of Rs. 38,63,617/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/53/2016 (i) The opposite party shall refund the entire principal amount of Rs. 35,32,757/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/375/2016 (i) The opposite party shall refund the entire principal amount of Rs. 28,32,000/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/376/2016 (i) The opposite party shall refund the entire principal amount of Rs. 60,85,135/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1405/2016 (i) The opposite party shall refund the entire principal amount of Rs. 96,05,781/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. In CC/1406/2016 (i) The opposite party shall refund the entire principal amount of Rs. 98,66,126/- to the complainants, alongwith compensation in the form of simple interest @ 12% per annum from the date of each payment till the date of refund with compensation in terms of this order. (ii) The opposite party shall also pay Rs.25,000/- as cost of litigation in each complaint, to the complainants. (iii) The payment in terms of this order shall be made within three months from today. |
