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

          The complainants booked a residential flat with the opposite party in a project namely ‘Anthea Floors’, Gurgaon and vide letter dated 02.8.2011, Flat No. F-01-0021 of the aforesaid project was allotted to them for a consideration of Rs.1,34,07,119/-.  The parties then executed a sale agreement dated 02.11.2011, incorporating their respective obligations. In terms of Clause 4a(i) of the aforesaid agreement, the possession was to be delivered within thirty-six months of its execution.  The possession therefore, ought to have been delivered by 02.11.2014.  The case of the complainants is that the possession has not been delivered to them, despite they having already paid Rs.59,18,811/- to the opposite party.  The complainants are therefore before this Commission, seeking refund of the amount paid by them, along with compensation.

2.      The opposite party did not file its written version, despite service and its right to file the said written version was therefore closed vide order dated 21.4.2017.  I have heard the learned counsel for the complainant and have considered the affidavit filed by the complaint by way of evidence.  No-one is present for the opposite party when the matter is called.

3.      The documents filed by the complainants coupled with their affidavit prove the case set out in the complaint.  The possession of the flat ought to have been delivered to them by 02.11.2014.  The possession having not been delivered, they are entitled to refund of the amount paid by them along with compensation in the form of appropriate interest.  The learned counsel for the complainants submits that though no written version has been filed in this case, several other consumer complaints in respect of this very project have already been allowed by this Commission, after rejecting the grounds on which the said consumer complaints were contested.  Reliance in this regard is placed upon the decision of this Commission in CC/1232 of 2016 Ravikant Bhatt Vs. Unitech Ltd. decided on 22.9.2016, which 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.      The learned counsel for the complainant also states on instructions that the complainant is restricting his claim to refund of the principal amount paid by him alongwith compensation in the form of simple interest @ 12% per annum in terms of clause 4.e. of the Buyers Agreement which reads as under:

“4.e     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, underdevelopment 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.”

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

(i)      The opposite party shall refund the entire amount Rs.59,18,811/- taken from the complainant along with compensation in the form of simple interest @ 12% p.a. 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 opposite party shall 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.