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

          The affidavits filed by the complainants by way of evidence have been taken on record today.  The copy has been supplied to the learned counsel for the OP.  The right of the OP to file its written version has already been closed vide order dated 09.03.2018 since the OP did not file the said written version despite having been served on 30.12.2017. 

2.      I have heard the learned counsel for the parties and have considered the affidavits filed by the complainants alongwith their documents. 

3.      The complainants booked a residential flat with the OP namely Unitech Ltd. in a residential project namely ‘The Residences’ which the OP was to develop in Sector-117 of Noida.  Vide allotment letter dated 01.09.2012, apartment no. 0704 in Tower C1 was allotted to them on the terms and conditions annexed thereto, for a total consideration of Rs.62,04,856/-.  As per clause 5A(i) of the terms and conditions of allotment, the possession of the apartment was expected to be delivered within 36 months thereof subject to force majeure circumstances.  The possession therefore, was expected to be delivered by September 2015.  The case of the complainants is that the possession has not even been offered to them despite they having already paid a sum of Rs.54,32,123/- to the OP.  The complainants are therefore, before this Commission seeking possession of the aforesaid apartment or in the alternative, refund of the amount paid by them alongwith compensation etc. 

4.      When this matter came up for admission hearing on 21.11.2017, the learned counsel for the complainants, on instructions from the complainants, stated that they were dropping the prayer for possession of the apartment and were seeking only refund of the amount paid by them to the OP alongwith compensation etc. 

5.      The affidavits coupled with the documents filed by the complainants prove the allotment made to them and payment received from them by the OP.  Since the possession of the apartment has not even been offered to them, by the date stipulated in the allotment letter, they are entitled to seek refund of the amount paid by them to the OP alongwith appropriate interest. 

6.      The learned counsel for the complainants states on instructions from the complainants that they are restricting their claim to the refund of the principal amount paid by them alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 5(d) of the allotment letter which reads as under:

D.      Default

          If for any reason the developer is not in a position to offer the allotted apartment, the developer shall offer the allottee(s) an alternative property or refund the amount paid by the allottee(s) with simple interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.

7.      The learned counsel for the complainants also submits that though no written version has been filed in the present case, some other Consumer Complaints in respect of this very project have already been allowed by this Commission.  A reference in this regard is made to CC/679/2016 Residences Flat Buyers Associates & Ors. Vs. M/s Unitech Ltd. decided on 14.07.2017, which to the extent, it is relevant, reads as under:

“3.      The complaint has been resisted by the OP which has alleged that the delay was caused on account of circumstances beyond its control such as agitation by farmers in Noida and Greater Noida and filing of writ petitions by the farmers before the Hon’ble High Court of Allahabad.  The OP, however, has not disputed the allotment made to the above-referred 43 flat buyers.

4.      The grounds on which this complaint has been opposed have repeatedly been rejected by this Commission in a large number of consumer complaints and, therefore, need not be dealt with again. Suffice it to say that there is no evidence to prove that construction of the flats allotted to the above-referred 43 flat buyers has been delayed on account of circumstances beyond the control of the OP. More importantly, even today, when more than 3 years have already expired from the date stipulated for commencement of possession, the completion of the construction is nowhere in sight and the OP is not in a position to give any particular time frame for completion of the said flats and offering their possession to the aforesaid 43 flat buyers.”

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

          (i)      The OP shall refund the entire principal amount of Rs.54,32,123/- received from the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of 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.