The complainant has not filed the rejoinder and affidavits.  The same are stated to be ready and are taken on record. 

2.      Vide order dated 15.03.2018, the delay on the part of the OP in filing the written version was condoned subject to deposit of Rs.10,000/- as cost with the Legal Aid Account of NCDRC within two weeks.  The said cost has not been deposited even despite additional time given to it on 16.08.2018.  The written version filed by the OP therefore, stands rejected in terms of the order dated 16.08.2018.  

3.      I have heard the learned counsel for the complainant.  No one is present for the OP when the matter is called.

4.      The complainant  Kabir Sethi booked a residential flat with the OP in a project namely “Anthea Floors, Wildflower Country” which the OP was to develop in Gurgaon.  Pursuant to his application dated 29.4.2013, a flat  bearing No.B-01-0097 in the aforesaid project was allotted to him, for a consideration of Rs.10148565/-.  The parties then executed a buyers agreement dated 08.05.2013, incorporating their respective obligations in respect of the aforesaid transaction.  In terms of clause 4.a(i) of the said agreement, the possession of the apartment was to be delivered within 36 months of its execution subject to force majure circumstances though the OP was entitled to a grace period of 3 months.  The grievance of the complainant is that the possession of the apartment has not been offered to him despite he having already paid Rs.31,88,837/- to the OP.  The complainant is therefore, before this Commission seeking possession of the allotted flat or in the alternative  refund of the amount paid by him to the opposite party alongwith compensation.

5.      The opposite party filed written version but did not pay the cost subject to which the delay in filing the written version was condoned. The written version, therefore, cannot be taken into consideration.

6.      The affidavit by way of evidence and documents filed by the complainant show the allotment made to him as well as the payment made to the opposite party. Since the possession of the apartment has not been offered to him despite the period for the delivery of the possession having expired way back in August 2013, the complainant is entitled to either possession of the allotted flat or refund the amount paid by him along with appropriate compensation.

7.      The learned counsel for the complainant states on instructions that the complainant does not want to wait any more for the possession of the allotted flat and wants refund of the amount paid by him to the opposite party along with appropriate compensation. It is pointed out that 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 complaint was 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.”

 8.     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.

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

(i)      The opposite party shall refund the entire amount Rs.31,88,837/- 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.