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

          The complainants have filed affidavits by way of evidence.  The right of the OP to file its written version has already been closed vide order dated 06.08.2018.  I have heard the learned counsel for the parties. 

2.      The complainants booked a residential flat with the OP namely Unitech Ltd. in a project namely ‘Unitech Cascades’ which the OP was to develop in Sector Pi-II of Greater Noida.  On 29.09.2005, Apartment No. 0101, in Tower 2 of the aforesaid project was allotted to the complainants for a consideration of Rs.38,18,819/-.  As per clause 4(a)(i) of the terms and conditions of allotment, the possession was to be delivered by 31.03.2008.  The grievance of the complainants is that the possession of the flat has not even been offered to them despite they have already paid Rs.38,90,044/- to the OP.  The complainants are therefore, before this Commission seeking refund of the amount paid by them alongwith compensation in the form of interest etc. 

3.      As noted earlier, the OP did not file its written version and therefore, its right to file its written version was closed vide order dated 06.08.2018.

4.      I have heard the learned counsel for the parties and have considered the affidavits by way of evidence filed by the complainants.  The affidavits and the documents filed by the complainants prove the allotment made to them as well as the sale consideration paid by them to the OP.  As per the terms and conditions of allotment, the possession of the apartment was required to be delivered to the complainants by 31.03.2008.  Since the possession was not offered and about nine years had passed from the aforesaid date when this complaint was instituted, the complainants are entitled to seek refund of the amount paid by them to the OP alongwith compensation in the form of interest. 

5.      In CC No. 60 of 2016, Surender Chauhan & Anr. Vs. M/s Unitech Limited & Anr. decided on 10.02.2017, the complainants had booked a residential flat with the OP in this very project namely ‘Unitech Cascades’.  Since the OP failed to deliver possession of the said flat, they approached this Commission seeking refund of the amount paid by them with compensation.  The complaint was resisted by the OP primarily on the following grounds:

          (i)      There was major disruption in the construction activities due to agitations and Dharans by farmers whose land was acquired by the Noida Authority and the said agitations had resulted in slackening of the availability and the supply of raw-material.

(ii)      Vide Notification dated 14.9.2016 issued by Ministry of environment and Forest (MOEF), Central Govt. imposed certain restrictions and prohibitions on new projects or activities based on their potential environmental impact unless prior environmental clearances were obtained. The procedure for obtaining the approvals and sanctions  led to delay in the construction schedule.

(iii)     There was acute shortage of labour, water and other raw-material.

(iv)    Writ Petitions were filed by the farmers before the Allahabad High Court challenging the acquisition of land by the State of Uttar Pradesh.

(v)    Some of the towers in this project have already been constructed whereas construction is going on in the remaining towers. As regards Tower-2 in which flat allotted to the complainants was to be located, it is alleged that external and internal plaster are going on in the said tower.

          It was also alleged that in view of clause 4.c of the terms and conditions of allotment in the event of delay, the allottees entitled only to the agreed compensation of Rs.5/- per sq.ft. of the super area per month.

          All the aforesaid contentions were rejected by this Commission and the OP was directed to refund the entire principal amount alongwith compensation in the form of simple interest @ 10% per annum. 

6.      The learned counsel for the complainants states on instructions from the complainants Col. Harish Soni who is present in the court that the complainants are restricting their claim to the refund of the principal amount paid by them alongwith compensation in the form of interest as per clause 4.e of the terms and conditions of allotment which reads as under:

“4.e. Default:

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

7.      The complaint is therefore, disposed of with the following directions:

          (i)      The OP shall refund the entire principal amount of Rs.38,90,044/- 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.