JUSTICE V.K. JAIN, (ORAL)

Vikrant Tomar, Ajay Kalra and Ritesh Manchanda booked a residential villa  with the OP  in a project, namely, Espace Premiere Nirvana Country-2,  which the opposite party  was to develop in Sectors -71 & 72 of Gurgaon.  Villa No.0048 in Block B of the aforesaid project was allotted to them for a consideration of Rs.21320104/- and they executed a buyers agreement dated 2.4.2011 with the opposite party. The said allotment was later purchased by the complainant and the transfer was endorsed in their favour by the OP on 21.4.2014. As per clause 4.a(i) of the agreement dated 2.4.2011, the possession was to be delivered within 24 months of its execution. The possession, therefore, ought to have delivered by 2.4.2013. The grievance of the complainants is that the possession has not even been offered and the construction is not complete till date despite payment of Rs.11392615/- to the OP. The complainants are,  therefore, before this Commission seeking possession of the villa along with compensation etc.

2.      The learned counsel for the complainants having taken instructions from the complainants states that since the OP has not offered possession  of the allotted villa  even after institution of this complaint  and the construction is not likely to be completed in near future, the complainants are no more interested in possession of the allotted villa and want refund of the entire amount  paid by them to the OP along with compensation etc.

3.      The OP has not filed any written version and its right to file the written version has been closed vide order dated 1.6.2018.

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

5.      The documents and the affidavits filed by the complainants prove the allotment as well as the payment made to the OP. The OP having not offered possession of the villa within two years of the buyers agreement, and even thereafter, the complainants are entitled either to possession of the said villa or to refund of the amount paid to the OP for purchase of the said villa. Though the prayer made in the complaint was only for possession of the flat, the said prayer will not come in the way of granting refund of the amount paid to the OP along with compensation etc., considering that the OP did not offer possession of the allotted villa to the complainant even during pendency of the complaint which came to be instituted more than two years ago. In fact, the construction of the allotted villa is nowhere near completion.

6.      The learned counsel for the complainant states on instructions that the complainants are restricting their claim to the refund of the principal amount paid to the opposite party for the said villa, along with compensation in the form of simple interest @ 10% per annum in terms of Clause 4(e) of the buyers agreement, which reads as under:-

“4.e   Inability to offer Villa:

          That if for any reason whatsoever the Developer is unable to offer the aforesaid Villa to the purchaser, as agreed herein, the Developer may offer the Purchaser(s) an alternate property or refund the amount in full with simple interest @ 10% per annum.  The developer shall not, in such an eventuality, be liable to pay any other charges or compensation.”

7.      The learned counsel for the complainant also states that though no written version has been filed in this complaint several other consumer complaints pertaining to allotments in this very project have already been allowed by this Commission after rejecting the grounds on which the said complaint was opposed. A reference in this regard is made to the decisions of this Commission in CC No.368/2015 Sudhanshu Pokhriyal Vs. Unitech Ltd., decided on 03.05.2017 and CC No.603/2014 Capt. Gurtaj Singh Sahni & Anr. Vs. Unitech Ltd. & Anr. and connected matters, decided on 02.05.2016.

8.       The decision of this Commission in Sudhanshu Pokhriyal (supra) to the extent it is relevant, reads as under:

2.       The complaint has been resisted by the OP on the grounds which this Commission has already rejected in several consumer complaints.  It is inter-alia stated in the reply filed by the opposite party that the construction of the project was affected due to shortage of water since the Hon’ble Punjab & Haryana High Court, vide order dated 16.07.2012, stopped the usage of underground water and directed use only of the treated water from the available Sewerage Treatment Plants. Since the availability of the sewerage treatment plants and water from such plants is very limited as compared to the requirement, it became difficult to maintain the timely schedule of construction. Relying upon clause 4(a) of the Buyers Agreement, it is claimed that the completion of the construction has been delayed on account of circumstances beyond the control of the opposite party. Relying upon clause 4(e), it is stated that in case the developer is unable to offer possession, it is liable either to offer an alternative property or to refund the amount received from the buyer alongwith interest @ 10% per annum. It is also claimed that as per clause 4(c)(iii) of the Buyers Agreement, in case of delay in delivering possession, the buyer is entitled to compensation @ Rs. 50/- per sq. yd. per month for the period the possession is delayed.

3.       In Captain Gurtaj Singh Sahni & Anr. Vs. Manager, Unitech Limited & Anr. and connected cases,  this Commission while allowing the complaints filed by the buyers of residential villa in the above referred project namely ‘Espace Premiere’, Nirvana Country-2, Sector-71 & 72, Gurgaon inter-alia held as under:

“3.      It would thus be seen that admittedly, the opposite party had entered into Buyers Agreement with the complainants and promised to offer possession within two years from the date on which the said Buyers Agreements were executed. It is also not in dispute that the opposite party has not been able to complete the construction of the villa though more than 1½ years have already expired from the date by which the last villa was to be handed over and more than three years have expired from the date by which the first villa was to be offered. Thus, the opposite party is at least 1½ years behind schedule in each case and it is not known when it would be able to complete the construction.

4.      During the course of hearing, I asked the representative of the opposite party to inform as to when it will be able to complete the construction of the villas and offer possession to the complainants. She states on instructions that the construction was likely to be completed within one year from the date on which it resumes but the opposite party cannot commit any particular date for resuming the construction of the villas.

5.      Since it is an admitted position that the opposite party had entered into Buyers Agreements with the complainants and deliver possession to them within 24 months of the said agreements, the direction sought by those complainants for completing the construction of the villas in a time bound manner is eminently justified in the facts and circumstances of the case. Taking into consideration all the facts and circumstances of the case, the opposite party, in my opinion, should resume the construction within three months from today, complete the same in all respects within one year thereafter and offer possession after obtaining the requisite completion certificate, within three months thereafter. Thus, the villas after completion of construction and obtaining the requisite completion certificate should be offered to the complainants on or before 18 months from the date of this order.

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.”

4.       The learned counsel for the OP states on instructions that the construction of the villa has started in December 2016, though she admits that the possession of construction is very slow.  She is not in a position to commit any particular time period for completion of construction and delivery of possession of the villa to the complainant.” 

9.      For the reasons stated hereinabove, the complaint is disposed of with the following directions:

(i)      The opposite party shall refund the entire principal amount of Rs.11392615/- to the complainants along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund of the full amount along with compensation.

(ii)      The opposite party shall pay Rs.25,000/- as the cost to the complainants.

(iii)     The payment in terms of this order shall be made within three months from today.