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

IA/8042/2019 (for directions)

          The affidavits by way of evidence are taken on record.  IA disposed of.

This is a complaint instituted under Section 12(1)(c) of the Consumer Protection Act on behalf of or for the benefit of all such allottees of the project namely ‘The Residences’ , which the opposite party was to develop in Sector 117 of Noida in Uttar Pradesh and who want refund of the amount paid by them to the opposite party with compensation etc, the OP having failed to deliver possession to them within the time period committed in this regard.

2.      The requisite permission in terms of Section 12(1)(c) of the CP Act was granted to the original complainants on 22.3.2018.  Thereafter, a public notice was also published in the newspapers on 14.8.2018.  The OP having not filed its written version, its right to file the said written version was closed on 22.3.2018.  Thereafter, having noticed that no notice post grant of the permission under Section12 (1)(c) of the CP Act had been issued to the OP, a fresh notice of admission of the complaint was directed to be issued to the OP vide order dated 30.8.2018.  The said notice was served upon the OP on 27.11.2018 and an affidavit of service was filed.  Since the written version was not filed by the OP, despite the said service on 27.11.2018, its right to file its written version was closed.  The complainants as well as several other flat buyers, who were impleaded in this complaint after grant of permission under Section 12(1)(c) of the C.P. Act, were directed to file their affidavits by way of evidence and the matter was listed for final hearing for today, since it is stated to be covered by the previous decisions of this Commission.

3.      Accordingly, affidavits by way of evidence have been filed by several flat buyers.

4.      The learned counsel for the flat buyers submit that in every allotment the possession was to be delivered within 36 months of the date on which the terms and conditions of allotment were executed.  They also submit that the last date for delivery of possession had already expired in respect of the allottees by the time this was instituted.  They also submit on instructions that there is no worthwhile construction on the spot and there is no prospect of construction being completed even within a reasonable time from today.  They also submit that in these circumstances, the flat buyers do not want to wait indefinitely for the possession of the allotted flat and want refund of the amount paid by them to the OP, along with appropriate compensation.

5.      All the counsel present on behalf of the flat buyers also state that they are seeking refund of the principal amount paid to the OP along with compensation in the form of simple interest @ 10% per annum in terms of clause (D) of the terms and conditions of allotment which reads as under:

          “D.    Default

          If for any reason the Developer is not in a position to offer the allotment, the Developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with simple interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

6.      The learned counsel for the complainant have also submitted that the several other consumer complaints, including a complaint under Section 12(1)(b) of the Consumer Protection Act have already been allowed by this Commission in respect of the allotments made in this very project.  A reference in this regard is made to CC/679/2016 Residencies Flat Buyers Association & Ors. Vs. M/s. Unitech Limited decided on 14.7.2017, which to the extent it is relevant reads as under:

          “3.      The complaint has been resisted by the OP which has alleged that the delay was caused on account of circumstances beyond its control such as agitation by farmers in Noida and Greater Noida and filing of writ petitions by the farmers before the Hon’ble High Court of Allahabad.  The OP, however, has not disputed the allotment made to the above-referred 43 flat buyers.

4.      The grounds on which this complaint has been opposed have repeatedly been rejected by this Commission in a large number of consumer complaints and, therefore, need not be dealt with again. Suffice it to say that there is no evidence to prove that construction of the flats allotted to the above-referred 43 flat buyers has been delayed on account of circumstances beyond the control of the OP. More importantly, even today, when more than 3 years have already expired from the date stipulated for commencement of possession, the completion of the construction is nowhere in sight and the OP is not in a position to give any particular time frame for completion of the said flats and offering their possession to the aforesaid 43 flat buyers.

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

(i)      The OP shall refund the entire amount paid by such flat buyers of the project namely “The Residences” in Sector 117 of Noida, Uttar Pradesh – (a) who want refund of the amount paid by them to the OP, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund; (b) whose allotments have not been cancelled and (c) who have already not approached either this Commission or any other Court / Forum for the redressal of their grievances.

(ii)      The OP shall also pay compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund to the flat buyers referred in direction (i) above.

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

(iv)    The OP shall also pay a sum of Rs.50,000/- as the cost of litigation to the complainants, in addition to the cost of publication of the notice in the newspapers.