This consumer complaint has been filed by the complainant Kanchan Malik against the opposite party M/s. Unitech Ltd.  It has been alleged in the complaint that the builder-buyer agreement was signed on 13.09.2011 for apartment wherein the possession was to be handed over within a period of three years from the date of builder-buyer agreement with grace period of three months.  It has been alleged in the complaint that the possession has not yet been delivered as construction of tower has not been completed.  The total consideration in the case is Rs.68,70,603/- and an amount of Rs.67,94,422/- has been paid to the opposite party.  The complaint has been filed for directing the opposite party to refund the principle amount along with 18% p.a. interest or in the alternative hand over the possession of the flat or some alternative flat of the same size and cost within six months. 

2.      On admission of the complaint, notice was issued to the opposite party.  The opposite party contested the complaint by filing the written statement.  The complainant filed its evidence, however, opposite party did not file evidence inspite of opportunity granted to them.  Vide order dated 02.01.2019 the opportunity to file evidence was closed and opposite party was proceeded ex-parte.   

3.      Heard the learned counsel for the complainant.  Learned counsel for the complainant reiterated the facts mentioned in the complaint and stated that as there has been a huge delay in getting the possession of allotted flat, the complainant is now not interested in taking the possession as it is not possible for the opposite party to give the possession in reasonable time.  It was stated by the learned counsel that now the complainant is only interested in getting the refund of the deposited amount.  Learned counsel for the complainant stated that in similar matters this Commission has allowed the refund along with 10% p.a. interest and complainant would be satisfied if a similar order is passed in the present complaint.  In this regard, learned counsel referred to the following cases:-

“(1)    CC No.776 of 2015, Sachin Malhotra & Ors. Vs. Unitech Ltd., decided on 04.10.2018 (NC)

(2)     CC No.1727 of 2016, Shalabh Gupta & Ors. Vs. Unitech Limited,  decided on 06.04.2018 (NC)

(3)     CC No.940 of 2016, Sorabh Sood Vs. Unitech Limited, decided on 22.05.2018 (NC)”

4.      It was further stated by the learned counsel for the complainant that even as per Clause 4.e. of the builder-buyer agreement, the opposite party has committed itself to refund the amount deposited along with 10% p.a. interest, if the opposite party is not able to give possession of the flat to the complainant or to offer any alternate accommodation. In the present case, neither the opposite party is able to handover the possession within a reasonable time, nor the opposite party has offered any alternative accommodation to the complainant and, therefore, according to this clause opposite party is obliged to refund deposited amount along with 10% p.a. interest. 

5.      In the written statement filed by the opposite party, the opposite party has taken preliminary objections in respect of the complaint being barred by limitation as well as being not maintainable in this Commission on the ground of pecuniary jurisdiction.  In the written statement, the opposite party has stated that the delay in completion of the project has happened due to conditions and circumstances, which were beyond the control of the opposite party.  It has been stated that the delay has occurred in obtaining different statutory approvals from the concerned authorities.   It has been further stated that there was shortage of ground water and the position worsened due to order of High Court of Punjab and Haryana, dated 16.07.2012, which banned the use of ground water.  Accordingly, the water was required to be brought from outside area, which caused delay.  Time was also taken by the concerned authorities to give required clearances for the project.  Thus, the delay has happened due to force majeure conditions and the opposite party is not responsible for such delay as they were beyond the control of the opposite party.  It has been further stated in the written statement that there is a clause for compensating the complainant for delay in handing over the possession @Rs.5/- per sq.ft. per month and therefore, the complainant is not at any disadvantage if the complainant waits for the possession.   It has been further accepted in the written statement that if the opposite party is not able to hand over the possession, the opposite party has committed itself to refund the deposited amount along with 10% p.a. interest.  It has been stated that the demand of 18% p.a. interest on deposited amount is not justified as the contracting parties cannot go beyond the contract. 

6.      I have given a thoughtful consideration to the arguments advanced by the learned counsel for the complainant and have examined the material on record.  So far as the preliminary objections taken in the written statement are concerned, it is seen that the opposite party has neither given the possession nor has refunded the amount to the complainant, therefore, the cause of action continued and hence the complaint cannot be considered as time barred.   The total consideration of the flat is Rs.68,70,603/- and the complainant has paid Rs.67,94,422/-.This Commission in Gaurav Aneja & Anr. Vs. Supertech Limited, II (2018) CPJ 365 (NC) has decided that in cases of refund, 18% p.a. interest will be considered as due compensation for deciding the pecuniary jurisdiction. Thus, if 18% p.a. interest is considered either on the amount of total consideration or on the amount paid, the figure certainly reaches beyond Rupees One Crore.  Hence, this Commission will have the jurisdiction to decide the present complaint.

7.      Coming to the merits of the case, it is seen that the opposite party in its written statement has relied upon different circumstances particularly order dated 16.07.2012 passed by High Court of Punjab and Haryana as well as delay in obtaining various clearances from the competent authorities for delay in construction.  Clearly, first of all, the opposite party should have obtained statutory approvals before advertising the project, therefore delay in obtaining these approvals cannot be considered force majeure.  So far as the order of the High Court of Punjab and Haryana is concerned no ban was put on the construction and the opposite party Company should have put its resources and managerial skills for combatting this situation for bringing water from outside to complete construction in time.  The fact is that the delay has occurred in construction beyond reasonable time and therefore, complainant has right to demand refund.  Clearly, the opposite party has failed in handing over the possession even after long delay beyond the stipulated period as per the builder-buyer agreement therefore, complainant has every right to seek refund of their deposited amount as nobody would like to block its capital for such a long time.

8.      From the prayers made in the complaint it is clear that the primary prayer is for refund of the deposited amount, though in the alternative, possession of the flat is requested.  The opposite party is not in a position to handover the possession to the complainant. Therefore, based on the above examination, the complainant is entitled to refund of the deposited amount.  As per Clause 4.e. of the builder-buyer agreement, the opposite party has already agreed that if the possession is not handed over, they will refund the deposited amount along with 10% p.a. interest. The complainant is satisfied with the order of refund with 10% p.a. interest. Accordingly the following order is passed:-

ORDER

The Consumer Complaint No.1396 of 2017 is allowed and the opposite party M/s. Unitech Ltd. is directed to refund the amount paid/deposited by the complainant viz Rs.67,94,422/- along with 10% p.a. interest from the date of respective deposits till actual payment.  The opposite party is also directed to pay Rs.20,000/- (rupees twenty thousand only) as cost of litigation to the complainant.  The order be complied with by the opposite party within a period of 60 days from the date of receipt/service of the order.