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

The complainant and her husband late Mr. Kanwaljit Singh Sahai booked a residential apartment with the OP in a project, namely, ‘Unitech Habitat’  which the opposite party was to develop in Sector Pi-II of Greater Noida in U.P. Vide allotment letter dated 02.11.2006, Apartment No.102 in Tower-1 of the aforesaid project was allotted to them  for a consideration of Rs.64,49,917/-.  As per clause 4.a(i) of the terms and conditions of allotment,  the possession was proposed to be delivered to the allottees within 36 months thereof. The possession thus ought to have been offered by 02.11.2009. The grievance of the complainants is that possession was not offered to them despite they having already paid of Rs.61,69,441/- to the opposite party, namely, Unitech Ltd.

2.      The late husband of the complainant had died even before institution of this complaint. He was survived by only two Class -1 legal representatives, namely, complainant - Smt. Ritu Sahai and his son – Sanjeet S. Sahai who executed a Relinquish Deed dated 22.12.2018 in favour of the complainant thereby relinquishing his rights, title share and interest as a legal heir of his deceased father in the subject property. Therefore, the complainant is competent to maintain this complaint.

3.      The OP did not file its written version despite having been served on 20.03.2017 and, therefore, its right to file the said written version was closed vide order dated 01.09.2017.

4.      I have heard the learned counsel for the parties and have considered the affidavit filed by the complainant by way of evidence. The affidavit filed by the complainant alongwith her documents prove the allotment made to her as well as the payment she claims to have made to the OP. Since the possession of the allotted flat has not even been offered to the complainant, she is entitled to seek refund of the amount paid to the OP along with appropriate compensation.

5.      On the last date of hearing, the learned counsel for the OP had taken an adjournment to verify the payment made by the complainant to the OP.  The learned counsel for the OP appeared today in the morning and confirmed that the payment claimed by the complainant was actually made to the OP. 

6.      Though no written version has been filed by the OP in this complaint, several Consumer Complaints relating to this very project have already been allowed by this Commission.  A reference in this regard may be made to the decision of this Commission in Consumer Complaint No.403 of 2017 – Vinod Baluja Vs. Unitech Ltd. decided on 10.10.2017, CC No.1312 of 2016 - Jalaj Anand Vs. Unitech Ltd. decided on 11.9.2017, Consumer Complaint No.222 of 2014 – Pradeep Chowdhry Vs. Unitech Ltd. decided on 19.10.2016, and Akash Jain Vs. Unitech Ltd. - CC No. 122 of 2015 decided on 12.08.2016. 

7.      In Akash Jain (supra), the complainant had booked a residential flat in this very project namely ‘Unitech Habitat’ and since possession was not offered to him, he approached this Commission seeking refund of the amount paid by him to the OP alongwith interest etc.

          The complaint was resisted by the OP on several grounds.  It was pointed out that the said grounds had also been taken in CC No.347 of 2014 Swarn Talwar & Ors. Vs. Unitech Ltd. decided on 14.08.2015.

          The complainants in Swarn Talwar & Ors. (supra) and connected matters also had booked residential apartments with the OP in this very project, i.e., Unitech Habitat which the opposite party was to develop on plot No.9 in Sector Pi-II (Alistonia Estate), Greater Noida. The complainants in the above-referred matters, felt aggrieved on account of the failure of the opposite party to honour its contractual obligation and offer possession of the flats booked by them. Therefore, they approached this Commission by way of separate consumer complaints seeking refund of the amount paid by them along with interest. The complaints were resisted by the OP primarily on the grounds that (i) the amount paid by the complainants being less than Rs.1,00,00,000/- in each case, this Commission lacks pecuniary jurisdiction to entertain the complaints, (ii) as per clause 4(c) of the allotment letter the opposite party is required to pay only the holding charges calculated at Rs.5/- per sq. ft. per month of the super area for the period of delay in offering delivery of the flat beyond the agreed period, (iii) the delay is attributable to a recession in the economy, affecting the availability of the resources such as labour and raw materials, (iv) there was major disruption in the construction activity of the opposite party due to massive agitation and strikes by farmers whose lands were acquired by NOIDA, which resulted in slackening and availability of supply of raw material, (v) there was acute shortage of labour, underground water and raw material besides delayed approval from Greater Noida Authority and (vi) In terms of clause 4(e) of the allotment letter the opposite party is entitled either to offer an alternative property or refund the amount paid by the complainant with simple interest at the rate of 10% per annum without damages or other compensation. It was also alleged that notification dated 14-09-2006 issued by Government of India imposed restrictions and prohibitions on new projects or activities or on the extension or modernization of the existing projects without prior environmental clearances and the procedure for obtaining such clearances led to delay in construction schedule. It was also claimed that the Dharna by farmers who were agitated on account of acquisition of their land, in front of the projects of various builders also halted the construction work and there was default in payment of installments by several flat buyers, dues against whom amounted to nearly Rs.57,00,00,000/-.  The following inter-alia was the view taken by this Commission:

          In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court inter alia observed and held as under:

        “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure...

…Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.

That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.         

          It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction.

“Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants.  There is no allegation of any lock-out or strike by the labour at the site of the project.  There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project.  There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement.  It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector.  I, however, find no merit in this contention.  The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.

          As regards, alleged shortage of labour, I find that no material has been placed on record by the OP that despite trying, it could not be get labourers to complete the construction of the project within the time stipulated in the Buyers Agreement.  It was submitted by the learned counsel for the complainants that ordinarily big builders such as the OP in these cases, are contracting/sub-contracting the construction work to the contractors engaged by them, instead of employing their own labourers on a regular basis, the purpose being to ensure that they are not saddled with the wage bill of those regular labourers, in case the opposite party does not have adequate work for them.  There is no evidence of the OP having been invited tenders for appointment of contractors / sub-contractors for executing the work at the site of those projects and no contractor/ sub-contractor having come forward to execute the project on the ground that adequate labour was not available in the market.  Therefore, it cannot be accepted that the opposite party could not have arranged adequate labour, either directly or through contractors/sub-contractors, for timely completion of the project.  As regards the alleged shortage of water, bricks and sand in the market, I find that there is no evidence filed by the OP, to prove that it was unable to procure water, sand and brick in adequate quantity.  This is also their case that the notification of the Government, being relied upon by the opposite party, is an old notification, which was in force even at the time the opposite party promised possession in 36 months. There is no evidence of the opposite party having invited tenders for supply of bricks and water and there being no response to such tenders.  In fact, if the work is to be executed through contractors/sub-contractors, the material such as bricks, sand and even water will be arranged by the contractor/sub-contractor and not by the opposite party.  As noted earlier, there is no evidence of the opposite party having invited tenders after awarding the work of project in question to the contractors/sub-contractors and there being no response to such tenders.  Therefore, I find no merit in the plea that the completion of the project was delayed due to non-availability of water, sand and bricks in adequate quantity.

It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.  The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer.  Such a term in the Buyer’s Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him.  He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.  If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc.  The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation.

As regards the alleged delay in obtaining environmental clearances there is no material on record to show when the opposite party applied for such clearances, where they submitted all the requisite documents etc. while applying for such clearances and how much was the time taken by the concerned authorities in granting the said clearances. In the absence of such particulars, it would be difficult for us to accept that development of the project was delayed on account of any notification imposing restrictions on new projects. In any case, the opposite party has failed to produce before us any notification imposing restriction or prohibition on development of the project in which the flats were to be constructed for the complainants.”  

8.      Being aggrieved from the order passed by this Commission, the opposite party approached the Hon’ble Supreme Court by way of an appeal. The said Appeal being Civil Appeal D.No.35562/2015 was dismissed by the Hon’ble Supreme Court vide its order dated 11.12.2015 which reads as under:-

“We have heard learned counsel for the appellant and perused the record. We do not see any cogent reason to entertain the appeal. The judgement impugned does not warrant any interference.

The Civil Appeal is dismissed.”

9.      The learned counsel for the complainant states on instructions that the complainant is restricting her claim to the refund of the principal amount paid by her to the OP alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4.e of the allotment letter 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 damage or any other compensation on this account.

10.    For the reasons stated hereinabove, the complaint is therefore, disposed of with the following directions:-

(i)      The opposite party shall refund the entire amount of Rs.61,69,441/- paid to it by the complainant along with compensation in the form of simple interest @ 10% p.a. from the date of each payment till the date on which the aforesaid amount along with compensation in the form of interest in terms of this order is paid.

(ii)      The opposite party shall also 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.