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

1.      The learned counsel for the complainant states that the complainant is a senior citizen aged about 73 years and has to leave for USA.  Therefore, with the consent of the parties, the matter is taken up for final hearing.  I have heard the learned counsel for the parties.  The complainant in this matter booked a residential flat with the OP in a project namely ‘Harmony’ which the OP is developing in Sector-50 of Gurgaon.  The sale consideration was agreed at Rs.1,15,20,060/-.  The parties entered into a Buyers Agreement dated 27.12.2006 incorporating their respective obligations.  The complainant has already paid a sum of Rs.1,06,86,789/- to the OP.  As per clause 4.a of the Buyers Agreement, the possession was to be delivered to the complainant by 30.09.2009 subject to force majeure circumstances.  Since the OP failed to deliver possession of the flat in question, the complainant approached this Commission seeking refund of the entire amount paid by her alongwith compensation in the form of interest @ 18% per annum. 

2.      The complaint has been resisted by the OP on the grounds which this Commission has repeatedly rejected in a number of consumer complaints including CC No.143 of 2015 Amit Garg & Anr. Vs. M/s Unitech Limited & Anr. and connected matters decided on 21.1.2016.  The complainants in Amit Garg & Anr. (supra) also had booked a residential flat in this very project namely Harmony which the OP is developing in Sector-50 of Gurgaon.  He as well as other flat buyers in the aforesaid project had approached this Commission seeking possession of the flats booked by them and the complaints came to be allowed vide order dated 21.06.2016. 

3.      In CC No.1225 of 2015 Anand K. Srivastava Vs. M/s Unitech Limited & Anr., the complainant who was a very senior citizen, booked a residential flat in the same project and approached this Commission for refund of the entire amount paid by him since the OP failed to deliver possession of the flat booked by him.  Since instead of seeking refund, the aforesaid complainant opted for possession of the flat during the hearing of the complaint, this Commission, accepting the contention of the OP, directed the counsel representing the OP to take instructions as to whether the OP was ready and willing to refund the entire amount paid to it by the complainant namely Mr. Anand Kumar Srivastava alongwith interest.  The learned counsel for the OP, after taking instructions, stated that the OP was not in a position to refund the said amount.  It was therefore, held by this Commission that since the OP was not ready and willing to refund the principal amount received from the complainant, he was entitled to possession of the flat, alongwith appropriate compensation.  

4.      The learned counsel representing the OP states on instructions that they are not in a position to refund the amount paid by the complainant to them and would have no difficulty in delivering possession of the flat booked by her as soon as they are able to obtain the requisite occupancy certificate. 

5.      In these circumstances and relying upon the decisions of this Commission in Amit Garg & Anr. (supra) and Anand Kumar Srivastava (supra), it would only be appropriate to direct the OP to deliver possession of the flat in question to the complainant alongwith appropriate compensation.  The learned counsel for the complainant, on instructions from the complainant, who is present in the court, states that in order to avoid further litigation in the matter, the complainant is ready and willing to accept compensation in the form of interest @ 8% per annum from the committed date of possession till the date on which the possession is actually delivered to her.  The complaint is therefore, disposed of with the following directions:

(i)      The opposite party shall obtain all the approvals and clearances, including the occupancy certificate in respect of flat in question at its own cost and responsibility on or before 31.05.2017 and offer possession to the complainant on or before 30.06.2017;

(ii)  The opposite party shall pay to the complainant compensation in the form of simple interest @ 8% per annum with effect from the committed date of possession as per the Buyers’ Agreement till the date on which the possession is actually offered to him.

The compensation shall be paid at the time of offering possession of the flat to the complainant in terms of this order.

(iii)     If any amount remains payable by the complainant to the opposite party, the compensation calculated in terms of this order shall be adjusted while demanding the said amount from him.

(iv)    If the opposite party fails to deliver possession and pay compensation in terms of this order, the complainants shall be entitled to seek execution in terms of Section 25 and 27 of the Consumer Protection Act.

(v)     The opposite party shall pay Rs.10,000/- as the cost of litigation in the complaint.