This complaint has been filed by Vishesh V. Puvadi & Anr.against the opposite party, M/s. Unitech Ltd.

2.      Brief facts of the complaint as alleged in the complaint are that on 01.07.2006 original allottee booked a residential flat No.1403, Escape Tower-7, Nirvana Country, Sector 50, Gurgaon, Haryana (one of the projects being developed by opposite party) for a total consideration of Rs.96,94,845/-.  On 05.09.2006 buyers agreement/apartment allotment agreement was executed with opposite party. Transfer of allotment letter dated 13.12.2010 was issued in favour of complainants confirming allotment in complainants’ names.  On 22.12.2010, complainants took a housing loan from HSBC Bank enabling complainants to make timely payments without any default. On 28.01.2016 Complainants got a legal notice issued to the opposite party, but opposite party has not even bothered to reply to the said notice.  Aggrieved by the acts of the opposite party, the present complaint has been filed on the above facts with the following prayers:-

“(i)  To direct the O.P. to immediately hand over the possession of the residential flat/Apartment No.1403, Block ESC-Tower-7 in the project of OP i.e. Escape AT Nirvana  Gurgaon i.e. flat in question in a habitable and livable condition with all amenities or in alternative

Direct the Opposite party to offer complainants an alternative property of same/similar specifications in the same locality as per Clause 4.e. Default of Buyers’ Agreement in a livable and habitable conditions or in the alternative.

to return the amount of the complainants with 18% p.a. on the amounts paid by the complainants.

(ii)  In case flat is being offered by the opposite party.

(a)   Direct the opposite party to pay complainants cost of funds @12% pa on the amounts paid by the complainants, from committed date of possession till the date of handover of flat in question in a livable and habitable condition with all amenities.

(b)     Direct the opposite party to execute conveyance of the flat in favour of complainants and handing over of physical possession of the flat.

(iii)   Cost of the complaint.”

3.      The complaint was resisted by the opposite party by filing the written statement wherein it has been stated that the delay in possession has occurred due to force majeure conditions and the construction is under progress.  Both the parties have filed their evidence by way of affidavit.

4.      Heard the learned counsel for the parties and perused the record.  It was argued by the learned counsel for the complainants that for the same project this Commission has passed a reasoned order in CC 498 of 2015, Mr. Sunil Kumar Sawhney Vs. M/s. Unitech Ltd., decided on 19.08.2016 (NC) with connected matters, wherein the following order has been passed:-

“11.        The complaints are, therefore, disposed of with the following directions:-

(i)     The opposite party shall complete the construction of the flats allotted to the allottees/complainants in all respects, provide all the facilities and amenities as per its contractual obligations, obtain the requisite Occupancy Certificate/ part Occupancy Certificate and then offer possession of the said flats to the complainants on or before 31.8.2017.

(ii)   If further construction of the towers in which flats have been allotted to the aforesaid complainants is lying stopped, it shall be resumed by the opposite party within two months from today.

(iii)  The allottees/complainants other than the complainant in CC No.501 of 2015 shall be paid compensation in the form of simple interest @ 10% per annum w.e.f. the committed date of possession till the date the possession in terms of this order is offered to them.

(iv)   The complainants/allottees in CC No.501 of 2015 will be paid compensation in the form of simple interest @ 10% p.a. w.e.f. 20.9.2014, till the date the possession in terms of this order is offered to them. They will also be paid the contractual compensation at the rate of Rs.5/- per sq.ft. per month of the super area of the flat for the period between 14.10.2009 to 20.9.2014.

(v)  The opposite party shall pay Rs.5,000/- each as the cost of litigation in each complaint.”

5.      Learned counsel for the complainants stated that though the possession was handed over to the complainants, however, no occupancy certificate has been received by the opposite party.  Presently, there is a provision of Rs.5/- per sq.ft. per month as delay charges to be paid to the complainants and the opposite party has already adjusted these charges.  However, a complaint has been filed for getting more compensation for delayed possession.  Learned counsel for the complainants requested that a similar order be passed in the present complaint as in CC No.498 of 2015 (supra).

6.      On the other hand learned counsel for the opposite party stated that the complainants herein are subsequent allottee and not the original allottee, therefore, they are not entitled to any interest on amount deposited by the original allottee.

7.      Learned counsel for the opposite party further stated that order in CC 498 of 2015, Mr. Sunil Kumar Sawhney Vs. M/s. Unitech Ltd. (supra) was passed on 19.08.2016 and the rate of interest is continuing to decline in the market and banks.  Keeping in view this trend, this Commission in other judgment in CC No.638 of 2016, Kalpana Chandra Vs. M/s. Unitech Limited, decided on 09.02.2017 (NC) has passed similar order but with interest @8%p.a.  Learned counsel requested that even after this judgment interest rates have further declined and accordingly, the reduced rate of interest be allowed.

8.      Learned counsel confidently stated that the project is nearing completion and possession to allottees shall start  after some time.  Learned counsel for the opposite party informed that all the certificates have been obtained except NOC  from the Fire Department and the same will be obtained very soon.

9.      I have considered the arguments of both the learned counsel and have examined the material on record. The assertion of the opposite party regarding delay due to force majeure conditions is not acceptable as no cogent proof has been filed by the opposite party. In this matter the complainants have already taken the physical possession. As the opposite party is confident of completion of the project and receiving the Occupancy Certificate, Consumer Complaint No.362 of 2016 is disposed of with the following directions:-

 “(a) The opposite party shall pay the delay charges @ Rs.5/- per sq.ft. per month as per the agreement to the complainants from due date of possession till date of issue of Occupancy Certificate.  The charges if already adjusted shall be counted against this.

(b)   The opposite party shall pay interest @6% p.a. on the deposited amount by the allottees with the opposite party before the due date of possession as per the agreement, from 13.12.2010 till the date of physical possession.  On the amounts paid after the due date of possession, the interest shall be payable from the date of completion of one year from the date of deposit till the date of physical possession.  

(c)   Opposite party shall also pay the cost of litigation as Rs.7,500/- (rupees seven thousand five hundred only) to the complainants.