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

          The complainant namely Anita Kaul booked residential plot with the opposite party in a project namely “The Willows” of Unitech Grande, which the opposite party was to develop in Sector 96, 97 & 98 of Noida.  Vide allotment letter dated 07.10.2009, plot No. 0011, Street 04, (Client ID TW 0068I) of the aforesaid project was allotted to the complainant as per the terms and conditions annexed to the allotment letter.  The sale consideration for the plot was agreed at Rs.1,01,04,191/-.  As per Clause 5(a)(i) of the terms and conditions of allotment the possession was expected to be delivered within eighteen months thereof, meaning thereby that the possession ought to have been offered to the complainant on or before 26.4.2011, when eighteen months from the execution of the terms and conditions of allotment expired.  The grievance of the complainant is that the possession has not even been offered to her, despite she having made substantial payment to the opposite party.  The complainant is therefore, before this Commission seeking refund of the aforesaid amount with interest etc.

2.      The opposite party was served with the notice of admission of the complaint on 11.10.2018 but has not filed its written version till date.  The right of the opposite party to file the written version was closed vide order dated 13.2.2019.

3.      I have considered the affidavit filed by the complainant by way of evidence on 15.4.2019 and have heard the learned counsel for the parties.

4.      The learned counsel for the complainant has pointed out that several other consumer complaints pertaining to allotment of the residential plot in this very project have already been allowed by this Commission. A reference in this regard is made to the decision of this Commission dated 02.11.2016 in CC/148/2015 Gaurav Chhabra Vs. M/s. Unitech Hi-Tech Developers Ltd.  The decision of this Commission in Gaurav Chhabra (supra) to the extent it is relevant reads as under:

          “3.      The complaints have been resisted by the opposite party on identical grounds. The opposite party has admitted the allotment made to the complainants as well as the receipt of the payment claimed by them. The delay in offering possession of the plots to the complainants is sought to be justified primarily on the following grounds:-

(i)      There was agitation by farmers whose land was allotted  by Noida Authority and allotted to the opposite party. The farmers were seeking increase in compensation and allotment of developed plots in lieu of the acquired land.

(ii)      High Court of Allahabad while deciding a bunch of writ petitions filed by various farmers had restrained Noida as well as the developers from carrying out any development and implementing the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board were incorporated in Master Plan 2021 to the satisfaction of the said Board.

(iii)     The National Green Tribunal had passed an order on 17.9.2013 stopping construction activity in and around 10 km of Okhla Bird Sanctuary and the present project falls within 10 km of the said bird sanctuary. The said order dated 17.9.2013 finally came to be replaced by a Notification issued by Govt. of India, M/o Environment  on 19.8.2015 declaring an Eco Sensitive Zone of 100 meters around the Okhla Bird Sanctuary.

(iv)    Restrictions were imposed by National Green Tribunal on use of ground water for construction purposes in Noida and Greater Noida.

(v)     There was acute shortage of labour”.

“8.      More importantly, the aforesaid order by the National Green Tribunal came to be passed much later than the date by which the possession was agreed to be delivered to the complainants.  In fact, the contention of the learned counsel for the complainants is that since the OP was required only to undertake development of the plots and unlike in a case of residential flats, no construction of the flat at the site was required, the aforesaid order of the National Green Tribunal would not at all apply to their case and could not have come in the way of completing the development of the plots.  Be that as it may, in my view, the OP has failed to prove that the development of the plots was delayed on account of the aforesaid order of the National Green Tribunal.  Moreover, as already noticed the aforesaid order came to be passed much later than November 2011, by which the possession of the plots was to be delivered to the complainants.

9.      As regards delay on account of agitation by farmers, there is no evidence of the work at this particular site having been halted by the farmers. No affidavit of the contractor engaged by the opposite party for the development of plots in this project has been filed to prove that he had to halt the work on account of agitation by farmers. No affidavit by any construction labourer has been filed to prove that the labourers were prevented by farmers from carrying out development on the site of this project. Therefore, the delay in completion of the development on account of the alleged agitation by the farmers could not be substantiated by the opposite party.            

10.    As far as the litigation before the High Court of Allahabad is concerned, admittedly, there was no order passed by the said High Court restraining the OP from undertaking development of the plots at the site of this project.  Therefore, the aforesaid order did not come in the way of the OP completing the development in terms of its contractual obligations contained in the allotment letter. 

11.    As regards the alleged shortage of labour, no material has been placed on record by the OP to show that it could not get adequate work force to complete the development of the plots despite efforts having been made in this regard.  There is no evidence of the OP having invited tender for engagement of Contractors/Sub-Contractors with adequate manpower for executing the work at the site of this project and no such Contractor/Sub-Contractor having come forward to execute the work on account of non-availability of the manpower.  Therefore, there is no merit in the plea taken by the OP in this regard. 

5.      The documents and the affidavit filed by the complainant prove the allotment made to her as well as the payment which she made to the opposite party.  Since the possession of the allotted plot has not even been offered to her, she cannot be compelled to wait indefinitely for the possession of the allotted plot and is entitled to seek refund of the amount paid by her to the opposite party, along with appropriate compensation in the form of interest.

6.      The learned counsel for the complainant states on instructions that the complainant is seeking refund of the amount paid by her to the opposite party, along with compensation in the form of simple interest @ 10% per annum in terms of Clause 5(d) of the terms and conditions of allotment which reads as under:

          “5(d)  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 of any other compensation on this account.”

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The learned counsel for the complainant also states that no alternative plot has even been offered to the complainant.

7.      The learned counsel for the complainant states that one plot and one flat was booked by the complainant, who made a total payment of Rs.2,07,82,660/- toward the price of the flat as well as the plot allotted to her.  She also states that in CC/1217/2015 decided on 04.10.2017, this Commission has already directed to pay Rs.1,15,92,639/- relatable to the flat along with interest @ 10% per annum on that amount.  Therefore, the balance amount which remains payable to the complainant comes to Rs.92,52,521/-, inclusive of the club membership fee of Rs.62,500/-.

8.      The complaint is disposed of with the following directions:

(i)      The opposite party Unitech Hi-Tech Developers Ltd. shall refund the entire principal amount of Rs.92,52,521/- inclusive of club membership fee of Rs.62,500/- to the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund, in terms of this order.

(ii)      The opposite Party Unitech Hi-Tech Developers Ltd. shall pay a sum of rs.25,000/- as the cost of litigation to the complainant.

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