ORDER (ORAL)

JUSTICE V.K.JAIN, PRESIDING MEMBER

          The complainants, Mrs. Manjula Mahajan and Umesh Mahajan booked a residential apartment with the Opposite Party in a project Unitech Habitat, which the OP was to develop on plot No. 9 in Sector-Pi-II of Greater Noida. Vide allotment letter dated 17.11.2006, apartment No. 002, Floor G, HBTN-Tower-I (unique customer code - HBTN-0788) of the aforesaid project was allotted to them on the terms and conditions annexed thereto.  The total sale consideration of the apartment was agreed to be Rs.68,80,949/-.  As per clause 4(a)(i) of the terms and conditions of the allotment, the possession of the apartment was proposed to be delivered to the complainants within 36 months thereof, meaning thereby that the possession ought to have been offered by 17.11.2009. Since the possession of the allotted flat was not offered to them despite they having paid Rs.62,15,597/- to the OP, the complainants are before this Commission, seeking refund of the aforesaid amount, along with interest, etc.

2.       The OP filed its written version contesting the complaint, but was thereafter proceeded ex-parte vide order dated 23.04.2018, passed by Bench No.1 of this Commission.

3.       The complainants have filed their affidavit by way of evidence. I  have heard the learned counsel for the parties and have considered the documents filed by them. 

4.       Neither the allotment made to the complainants is in dispute nor is the payment received by the OP from them.  The OP was under a contractual obligation to offer possession of the allotted flat to the complainants within 36 months from the date of the signing of the agreement and that having not been done, the complainants are entitled to seek refund of the amount paid by them to the OP.

5.       On the last date of hearing (27.11.2018), since Attorney of the complainants expressed the willingness to accept the possession of the allotted flat complete in all respects, provided Occupancy Certificate has been obtained and possession is delivered to them, within three months, the learned counsel for the OP was directed to take instructions as to whether it has obtained the requisite Occupancy Certificate in respect of the allotted flat and is ready to give the flat to the complainants, complete in all respects, within three months from the date of last order.  Learned counsel for the complainants states, on instructions, that the complainants are restricting their claim to refund of the principal amount paid by them, along with compensation in the form of simple interest @ 10% p.a., in terms of clause 4(e) of the terms of allotment, which reads as under :-

“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”.

6.       The Learned counsel for the complainants also states that several other consumer complaints in respect of this project have also been allowed by this Commission after rejecting the grounds on which those complaints were contested.  A reference in this regard is made to the decision of this Commission dated 19.10.2016 in CC No.222/2014, which, to the extent, it is relevant, reads as under :-

“3. The complaint has been resisted by the opposite party on several grounds. The opposite party has admitted the booking made by the complainant as well as the execution of the Buyers Agreement with him. The delay in offering possession of the flat to the complainant is sought to be justified on the very same grounds which this Commission has repeatedly rejected in a number of consumer complaints. The following broadly are the reasons given by the opposite party to justify the delay in offering possession of the apartment to the complainants:-

(i)  There was blockage of construction work in Greater Noida by the farmers agitating for enhancement of compensation, from February 2008 to February 2009.

(ii)  There was shortage of labour as well as building material from April 2010 to March 2011 on account of Commonwealth Games.

(iii)  There was shortage of labour  due to implementation of social schemes such as NREGA and JNNURM.

(iv)  The farmers had filed several writ petitions in Allahabad High Court challenging acquisition of land allotted to developers for the housing complexes.

(v)  The acquisition of land in some villages of Greater Noida was quashed by the court and thereafter there was unrest amongst the farmers who  did dharnas in front of  various projects of the builders.

(vi)  There was default on the part of several buyers in making payment resulting in acute resource crunch.

(vii)  There was recession in real estate agency during 2008-2009.

3.      Rejecting identical grounds taken by the opposite party, this Commission interalia held as under in Anil Kumar Gupta Vs Unitech Ltd. - CC No.472 of 2015 decided on 30.9.2016 and Aakash Chopra Vs. Unitech Acacia Projects - CC No.930 of 2015 decided on 20.6.2016:-

“(i) As regards the alleged shortage of labour and building material on account of Commonwealth Games, the plea taken by the opposite party is wholly misplaced since the said games were over in October 2010 much before the allotment in this project was made to the complainant.

(ii)      As regards the alleged economic slowdown and consequent recession in the real estate market, the same cannot be a valid ground for delaying the possession of the flats to the  complainant since some of the buyers made advance payment of almost 95% of the sale consideration whereas the other buyers were to make payment linked with the progress of construction and this is not the case of the opposite party that they had defaulted in performing their contractual obligations as regards the payment of the sale consideration. Therefore, it cannot be said, as far as this project is concerned, that the construction was delayed on account of funds not being available with the opposite party.

(iii)     As regards the alleged shortage of labour due to NREGS and Jawahar Lal Nehru National Urban Renewal Mission, there is no evidence of the opposite party having attempted to recruit labour and having not found the requisite labour available in the market. Ordinarily such big builders operate by giving contracts/sub-contracts to third parties. There is no evidence of the opposite party having not been able to get any contractor/sub-contractor on account of non-availability of labour and/or building material in the market. Moreover, this is not the case of the opposite party that no construction activity took place in Gurgaon in the last 5 years or so. Had the labour and/or building material not been available in the market, the problem would have been faced not only by the opposite party but by all other builders as well as the individuals who were seeking to construct houses in this area. Therefore, I find no merit in the aforesaid plea taken by the opposite party. 

(iv)    As regards the alleged shortage of bricks and sand, there is no evidence of the opposite party having invited tenders for supply of bricks and sand and the said material having not been available in the market. Moreover, there is no evidence of any sub-contractor/contractor of the opposite party having stopped the work awarded to him on account of non-availability of labour and/or building material in the market. It is possible that the wages of the labour and the cost of the building material may have gone up with the passage of time but it would be difficult to accept that neither the required labour nor the building material in sufficient quantity was available in the open market.

 (v) As far as the alleged agitation by farmers is concerned, there is no evidence of any agitation by the farmers on the site of this particular project.  Therefore, the plea taken in this regard appears to be only afterthought with a view to justify the delay on the part of the opposite party”.

7.       For the reasons stated above, the complaint is disposed of with the following directions :-

i)  The OP shall refund the entire principal amount of Rs.62,15,597/- to the complainants along with compensation in the form of simple interest @ 10% p.a., from the date of each payment, till the date of refund;

ii)   The OP shall pay Rs.25,000/- as costs of litigation to the complainants;

iii)    The entire payments in terms of this order shall be made within three months, from today.