JUSTICE AJIT  BHARIHOKE, PRESIDING MEMBER

            Saurabh Sood, the complainant herein booked a residential apartment no. 1101 on 11^th floor Block No.3 in the development project Unitech South Park to be developed by the opposite party in Sector 70, Gurgaon.  The parties entered into a Buyer’s Agreement dated 16.07.2012. The consideration amount agreed for the subject apartment was Rs.83,85,839/- inclusive of basic price, external development charges, infrastructure development charges, club management registration preferential location charges and use of car parking space.  As per clause 4.9 of the agreement, possession was supposed to be delivered by the opposite party within 36 months from the date of agreement subject to Force Majeure circumstances.  The possession, therefore, was supposed to be delivered by 16.07.2015.  The grievance of the complainant is that although he has paid almost entire consideration amount to the opposite party, the opposite party has failed to complete the construction of the project and deliver possession of the apartment.  The complainant has thus raised the instant consumer dispute seeking refund of Rs.83,32,695/- paid to the opposite party against the agreed consideration with 18% interest thereon, besides compensation for mental agony and harassment and litigation charges. 

2.         The opposite party in its written statement has admitted Builder-Buyer agreement between the parties.  It is also admitted that complainant has paid sum of Rs.83,32,295/- inclusive of Rs.67,08,671/- advanced by ICICI bank against the agreed consideration.  It is pleaded that loan was advanced by ICICI bank under Tripartite Agreement.  Therefore, ICICI bank being the beneficiary, is a necessary party to the present complaint.  According to the opposite party, it has failed to observe the time schedule for construction and delivery of possession because of force majeure circumstances reproduced below:

1. The opposite party submitted application dated 10.9.2011 to the Ministry of Environment and Forests for obtaining environmental clearance for this project but the said environmental clearance came to be accorded only on 10.1.2014, the intervening time having been taken by the State Expert Appraisal Committee (SEAC) and State Environment Impact Assessment Authority (SEIAA).
2. Some of the buyers in this project filed a complaint with EOW Cell, of Delhi Police under section 406/420/120 B of IPC and the matter is under investigation of Delhi Police.
3. There was slump in the real estate market, because of overall economic conditions, as a resultof which the supply of labour and raw-material became scarce.
4. There was shortage of labour and the building materialdue to Common Wealth Games held in October 2010.
5. There was shortage of labour due to implementation of social schemes such as National Rural Employment Guarantee Scheme (NREGS) and Jawahar Lal Nehru National Urban Renewal Mission (JNNURM)
6. The use of ground water for building purposes was stayed by Punjab & Haryana High Court vide its order dated 16.7.2012.
7. Restrictions were placed by Ministry of Environment and Forests vide Notification dated 14.9.1999 which resulted in the reduction in availability of bricks in the market since manufacture of clay bricks was stopped within a radius of 50 km from Coal and Ignite based Thermal Power Plants without mixing at least 25% of ash with soil.
8. There was shortage of sand on account of mining in the Aravali Region having been stopped by the Hon’ble Supreme Court.”

3.         The complainant has filed affidavit evidence in support of the complaint.  The opposite party failed to file affidavit evidence despite of opportunity given.  On 14.12.2017 on the request of the opposite party, adjournment was granted to the opposite party to file affidavit evidence subject to cost of Rs.20,000/- and the matter was listed for 04.05.2018.  The opposite party,  however, neither deposited the cost of Rs.20,000/- nor filed affidavit evidence.  The right of the opposite party to file affidavit evidence was, therefore, closed.

4.         I have heard counsel for the parties and perused the record.  The complaint has been resisted by the opposite party on the ground which have  been repeatedly rejected by this Commission in number of consumer complaints including CC No.1407/2015 Aakriti Jain Vs. M/s Unitech Limited and connected matters decided on 01.06.2017.  The decision of this Commission in Aakriti Jain (supra) was based upon its earlier decision in CC No.667/2016 Rachna Sukhija & Anr. Vs. M/s Unitech Limited & Anr. and connected consumer complaints, Ravikant Bhatt Vs. M/s Unitech Ltd. – CC No.1232 of 2015 decided on 22.9.2016 and Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matters, decided on 02.05.2016. 

5.         In the matter of Rachna Sukhija Vs. M/s Unitech Limited and Anr. and other connected complaints, the Coordinate Bench of this Commission has observed as under:

“3.      The complaints have been resisted by the opposite party on identical grounds. The grounds taken in the written version of the opposite party have repeatedly been considered and rejected by this Commission in a number of cases. The following primarily are the grounds on which the complaints have been resisted:-

1. The opposite party submitted application dated 10.9.2011 to the Ministry of Environment and Forests for obtaining environmental clearance for this project but the said environmental clearance came to be accorded only on 10.1.2014, the intervening time having been taken by the State Expert Appraisal Committee (SEAC) and State Environment Impact Assessment Authority (SEIAA).
2. Some of the buyers in this project filed a complaint with EOW Cell, of Delhi Police under section 406/420/120 B of IPC and the matter is under investigation of Delhi Police.
3. There was slump in the real estate market, because of overall economic conditions, as a resultof which the supply of labour and raw-material became scarce.
4. There was shortage of labour and the building materialdue to Common Wealth Games held in October 2010.
5. There was shortage of labour due to implementation of social schemes such as National Rural Employment Guarantee Scheme (NREGS) and Jawahar Lal Nehru National Urban Renewal Mission (JNNURM)
6. The use of ground water for building purposes was stayed by Punjab & Haryana High Court vide its order dated 16.7.2012.
7. Restrictions were placed by Ministry of Environment and Forests vide Notification dated 14.9.1999 which resulted in the reduction in availability of bricks in the market since manufacture of clay bricks was stopped within a radius of 50 km from Coal and Ignite based Thermal Power Plants without mixing at least 25% of ash with soil.
8. There was shortage of sand on account of mining in the Aravali Region having been stopped by the Hon’ble Supreme Court.

4.      As far as the delay in grant of the environmental clearance is concerned, admittedly it was not disclosed to the flat buyers, either in the Buyer’s Agreement or in the allotment letters that the requisite environmental clearance had not been granted by the concerned authorities. Ideally the environmental clearance ought to have been obtained before accepting the booking of the flats. In any case, if the opposite party had applied for the grant of the requisite environmental clearance before booking of the flats allotted to the complainants, it ought to have disclosed to them that though the said environmental clearance had been applied, the same had not been granted. In case the environmental clearance was applied after the booking, the opposite party ought to have disclosed to the buyers at the time of booking itself that they were yet to apply for the grant of the requisite environmental clearance. Thus neither the opposite party obtained the requisite environmental clearance before  booking of the flats nor did it disclose to the flat buyers that the requisite environmental clearance was yet to be granted.

This issue came to be considered by this Commission in Ravikant Bhatt Vs. M/s Unitech Ltd. – CC No.1232 of 2015 decided on 22.9.2016 and the following view was taken:-

“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.”

5.      More importantly even after obtaining the requisite environmental clearance, the opposite party has not been able to complete the construction and in fact the construction admittedly has not even reached the level of completing the superstructure. The time of more than rather 2 years and 8 months which was available to the opposite party after grant of the requisite environmental clearance was sufficient if the said opposite party was keen to complete the project, to either complete the construction or at least reach an advanced stage of the construction. Therefore, it would be difficult to accept the plea that the delay in offering possession of the flats to the complainants has happened on account of the time taken in obtaining the environmental clearance.

6.      As regards the alleged non-availability of ground water on account of the  use of ground water in building activities, having  been stayed by the Punjab and Haryana High Court, the following view taken by this Commission in Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matters, decided on 2.5.2016 is pertinent:-

“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.”

7.      As regards the alleged shortage of labour and building material on account of Commonwealth Games, the plea taken by the opposite party is wholly misplaced since the said games were over in October 2010 much before the allotment in this project was made to the complainants.

8.      As regards the alleged economic slowdown and consequent recession in the real estate market, the same cannot be a valid ground for delaying the possession of the flats to the  complainants since some of the buyers made advance payment of almost 95% of the sale consideration whereas the other buyers were to make payment linked with the progress of construction and this is not the case of the opposite party  that they had defaulted in performing their contractual obligations as regards the payment of the sale consideration. Therefore, it cannot be said, as far as this project is concerned, that the construction was delayed on account of funds not being available with the opposite party.

9.      As regards the alleged shortage of labour due to NREGS and Jawahar Lal Nehru National Urban Renewal Mission, there is no evidence of the opposite party having attempted to recruit labour and having not found the requisite labour available in the market. Ordinarily such big builders operate by giving contracts/sub-contracts to third parties. There is no evidence of the opposite party having not been able to get any contractor/sub-contractor on account of non-availability of labour and/or building material in the market. Moreover, this is not the case of the opposite party that no construction activity took place in Gurgaon in the last 5 years or so. Had the labour and/or building material not been available in the market, the problem would have been faced not only by the opposite party but by all other builders as well as the individuals who were seeking to construct houses in this area. Therefore, I find no merit in the aforesaid plea taken by the opposite party.

10.    As far as filing of a complaint with EOW Cell of Delhi Police, I fail to appreciate how filing such a complaint could have justified the delay in completing the construction. Such a complaint rather should have put pressure on the opposite party to expedite the completion of the construction in order to ventilate the grievance of the flat buyers.

11.    As regards the alleged shortage of bricks and sand, there is no evidence of the opposite party having invited tenders for supply of bricks and sand and the said material having not been available in the market. Moreover, there is no evidence of any sub-contractor/contractor of the opposite party having stopped the work awarded to him on account of non-availability of labour and/or building material in the market. It is possible that the wages of the laour and the cost of the building material may have gone up with the passage of time but it would be difficult to accept that neither the required labor nor the building material in sufficient quantity was available in the open market.

12.    For the reasons stated hereinabove, I am satisfied that the delay in construction of the flats allotted to the complainants did not happen on account of reasons beyond the control of the opposite party. Therefore, the said opposite party was deficient in rendering services to the complainants by not delivering timely possession of the flats allotted to them.

13.    It is also an admitted position that no alternative allotment was offered to the complainants at any point of time. Even during the pendency of this complaint, the opposite party has not come out with any offer to provide alternative flats to the complainants. Therefore, in view of clause 4.e of the Buyer’s Agreement, the opposite party is under a contractual obligation to refund the entire amount received from the complainants along with interest on that amount @ 10% per annum from the date the said amount was deposited with it.

14.    The learned counsel for the complainants states on instructions that in order to avoid any further litigation and bring the matter to a closure, the complainants are ready and willing to accept the principal amount paid by them along with compensation in the form of simple interest @ 10% per annum in terms of clause 4.e of the Buyer’s Agreement.”

6.         The above order of the Coordinate Bench is well reasoned and I find  no reason to differ from the same, particularly when the opposite party has led no evidence in support of its defence.  Thus, I find no hesitation in holding that the opposite party is deficient in service.

7.         Counsel for the complainant has stated at the Bar that al-though the complainant has claimed compensation on the refund amount @ 18% p.a., in order to bring the litigation to an end, the complainant is restricting his claim for refund of the amount paid by him alongwith compensation in the form of interest @ 10% p.a. in terms of clause 4.e of the Buyer’s agreement.

8.         Counsel for the opposite party has contended that consideration amount was paid by the complainant particularly from his own pocket and balance amount was advanced by the ICICI bank pursuant to the Tripartite Agreement between the parties and the bank against the mortgage of concerned residential unit with the bank.  In this regard, counsel has referred to para 10 & 11 of the Tripartite Agreement, which are reproduced above:

10.       The Developer as the case may be, shall on behalf of the Borrower deposit the Sale Deed of the above said Residential Unit with ICICI only immediately after the sale deed of the said residential unit is executed and registered.  The Borrower hereby authorizes the Developer to deposit the title documents with ICICI and further that the Borrower undertakes to take steps for creation of mortgage of the above said residential unit in favour of ICICI in the form and manner required by ICICI and as stipulated under the loan agreement;

11.       The Developer hereby confirm that they do not have any objection in creation of mortgage of the above said residential unit by borrower in favour of ICICI after the sale deed executed by the Developer in favour of the Borrower has been registered and agree to creation of an interim security in favour of ICICI by the Borrower by way of marking lien on the unit by way of Lien Letter which would be duly deposited with ICICI before disbursement of the loan and further agrees to give the necessary consent / no objection as and when required.”

9.         On perusal of the above, it is clear that complainant has made certain payments against the consideration amount after seeking finance from the ICICI bank against the mortgage of the subject flat.  As the complainant has prayed for refund of consideration amount paid by him, he is required to forego his right over subject apartment and make sure that the loan against the mortgage has  been paid to the bank.

10.       In view of the above, consumer complaint is allowed with following directions:

a.         The opposite party shall refund sum of Rs.83,32,295/- to the complainant alongwith compensation in the form of simple interest @ 10% p.a.  from the date of each payment till realization of the amount, subject to the complainant furnishing no objection certificate from the ICICI Bank regarding clearance of the  loan amount.  It is made clear that if some part of the loan is pending, it shall be paid from the decretal amount and balance amount shall be paid to the complainant within 30 days from the date of submitting the No Objection Certificate

b.         The opposite party shall pay cost of Rs.10,000/- as litigation charges to the complainant;

c.         Payment in terms of this order shall be made within three months from today.