IA/5908/2018 (For amendment of complaint)

          This is an application seeking amendment of the complaint.

          Heard. Allowed.

          The amended complaint is taken on record.  IA disposed of.

CC/305/2017

          On 16.11.2017, the delay on the part of the OP in filing the written version was condoned subject to payment of Rs.25,000/- as cost.  The said cost has not been paid.  On 23.2.2018, the learned counsel for the OP expressed his inability to pay the cost.  The written version therefore was rejected.

2.      I have heard the learned counsel for the complainants and have considered the affidavit by way of evidence.  No-one is present for the OP when the matter is called.  The complainants -  Lalit Vij and Vidhu Vij, booked a residential flat with the OP in a project namely ‘Exquisite’  Nirvana Country-2,  which the OP was to develop in Gurgaon.  Vide allotment letter dated 16.9.2010, Flat No.A2-02-0201 in the aforesaid project was allotted to them for a consideration of Rs.1,22,93,952/-.

3.      The parties then executed apartment allotment agreement dated 2.11.2010, incorporating their respective obligations. In terms of Clause 4.a(i) of the said agreement, the possession was to be delivered within 36 months of its execution. The possession therefore, ought to have been delivered by 2.11.2013. The grievance of the complainants is that the possession has not even been offered to them despite they having already paid Rs.12241508/- to the OP. The complainants are, therefore, before this Commission seeking refund of the aforesaid amount along with compensation in the form of interest.

4.      As noted earlier the written version filed by the OP has already been rejected on account of non-payment of the cost. I have heard the learned counsel for the complainants and have considered the evidence filed by the complainant by way of evidence. The documents filed by the complainants coupled with their evidence, prove the allotment made to them as well as payments made by them to the OP. The agreement executed between the parties required the OP to deliver possession of the flat to the complainants on 2.11.2013. Since the possession has not even been offered to the complainants, they are entitled to seek refund of the amount paid by them along with compensation. The learned counsel having taken instructions from the complainants states that the complainants are restricting their claim to the refund of the principal amount paid by them to the OP along with interest @ 10% per annum in terms of Clause 4.e of the Buyers Agreement which reads as under:-

4.e. Default:

If for any reason the developer in not in a position to offer the apartment, as agreed herein, the developer  may offer the apartment allottee(s) alternative property or refund the amount paid by the apartment allottee(s) in full with interest @ 10% per annum from the date of payment(s) by the apartment allottee(s) without any further liability to pay any damages, charges or compensation.

5.      The learned counsel for the complainants also places reliance upon the decision of this Commission in CC No. 1100 of 2015 Vibha Gupta Vs. M/s Unitech Ltd. & other connected matters decided on 28.11.2016 and the decision of this Commission dated 30.09.2016 in CC No. 472 of 2015 Anil Kumar Gupta Vs. Unitech Ltd.

6.     The decision of this Commission in Vibha Gupta (supra) which pertains to this very project, to the extent it is relevant, reads as under:

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

(i)   The OP shall refund the entire principal amount of Rs.12241508/-  to the complainants alongwith compensation in the form of simple interest @ 10% per annum 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 OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainants.

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