JUSTICE V.K.JAIN (ORAL)

The complainants, namely, Abhishek Agarwal and. Mani Agarwal  booked a residential apartment with the opposite party, namely, Unitech Reliable Projects Pvt. Ltd.   in a project namely ‘Capella’ in Uniworld City, which the opposite party was to develp  on plot No.GH-01, Sector-MU of Greater Noida. Vide allotment letter dated 31.07.2008, Apartment No.0702 in Tower 17 of the aforesaid project was allotted to them on the terms and conditions forming part of the allotment and executed on 30.8.2008. The price of the apartment was fixed at Rs.5618836/-. As per clause 4(a)(i) of the said terms and conditions, the possession of the apartment was proposed to be delivered to the allottees within 40 months of the execution of the said terms and conditions.   The possession, therefore, ought to have been offered by 30.11.2011.

2.      Subsequently, the allotment made to the complainants was shifted to another project, namely, ‘Unitech Verve’ which the opposite party was to develop in Greater Noida and vide provisional allotment letter dated 10.3.2011, flat No.03-13-1403  in the said project - ‘Unitech Verve’ was allotted to them for a consideration of Rs.5630075/-, on the terms and conditions executed on 29.3.2011. As per clause 4(a)(i) of the said terms and conditions, the possession of the apartment was proposed to be delivered within 15 months of their execution, meaning thereby that the possession ought to have been offered by 29.6.2012. The grievance of the complainants is that the possession of the apartment has not been offered to them despite they having already paid Rs.5373561/- to the OP.  The complainants are, therefore, before this Commission seeking refund of the said amount alongwith compensation etc. 

3.      The OP did not file its written version. On 22.1.2018, the opposite party was granted time till 25.1.2018 to file its written version subject to deposit of Rs.10,000/- as cost with the ‘Consumer Legal Aid Account’ of NCDRC, failing which its right to file the said written version was to stand closed. However, neither the written version was filed nor the cost was deposited  and, therefore, its right to file the written version was closed vide order dated 26.3.2018.

4.      I have heard the learned counsel for the complainants and have considered the affidavit filed by them by way of evidence.

5.      The affidavit and the documents filed by the complainants prove the initial allotment made to  them in ‘Capella’ as well as the subsequent allotment made in the project ‘Unitech Verve’. The affidavit and the documents filed by the complainants also prove the  payment made by them to the opposite party.  Since the possession of the allotted flat has not been offered to them, they are entitled to refund of the amount paid to the opposite party along with appropriate compensation, etc.

6.      The learned counsel for the complainants 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 alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4.e which reads as under:

4.e    Default:

If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer shall offer the Allottee(s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.

7.      The learned counsel for the complainants states that no alternative property has been offered to the complainants. He  also states that though no written version has been filed in this consumer complaint, several other consumer complaints pertaining to this very project have already been allowed by this Commission.  

8.      Reliance is placed upon the decision of this Commission in Dewan Ashwani & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. & Anr. CC No.282/2012, decided on 07.05.2015.  Reliance is also placed upon Consumer Complaint No. 709 of 2015, Ankur Goel Vs. Unitech Reliable Projects Pvt. Ltd., decided on 27.07.2016, wherein some additional contentions advanced by the opposite party with respect to the pecuniary jurisdiction of this Commission were rejected by this Commission.

Reliance is also placed upon Neha Suri Vs. M/s Unitech Reliable Projects Pvt. Ltd. CC No. 977 of 2015 decided on 04.01.2017 and Kiran Agarwal Vs. Unitech Reliable Projects Pvt. Ltd. CC No.1487/2016, decided on 31.08.2017.

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

(i)      The opposite party shall refund the entire principal amount of Rs.5373561/- to the complainants alongwith compensation in the form of simple interest @ 10% per annum with effect from the date of each payment till the date of full refund. 

(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.