JUSTICE V.K.JAIN (ORAL)

The complainants, namely, D. Rameshbabu and Swaroop Nandakumar booked a residential flat with the OP in a project namely ‘the Exquisite” Nirvana Country-2, which the OP was to develop in Gurgaon. Vide allotment letter dated 16.09.2010, flat no. 0103  in Block-A1 of the above-referred project was allotted to them for a consideration of Rs.12428000/-.  The parties then executed a Sale Agreement on 20.10.2010 incorporating their respective obligations in respect of the transaction.  As per clause 4(a)(i) of the said agreement, the possession was to be delivered within 36 months of its execution, meaning thereby that the possession ought to have been delivered to them by 20.10.2013.  The  possession having not been offered to them despite they having already paid Rs.10657663/- to the OP, they  are before this Commission seeking refund of the amount paid by them to the OP alongwith compensation etc. 

2.      The OP did not file its written version despite service and, therefore, its right to file the written version was closed vide order dated 27.9.2018.

3.      I have heard the learned counsel for the complainants and have considered the affidavit and the documents filed by them. No one is present for the OP when the matter is called.

4.      The affidavits  and the documents filed by the complainants prove the allotment made to them as also the payment which they made to the OP. Since the possession of the allotted flat has not been offered to them, they are entitled to refund of the amount paid to the opposite party along with appropriate compensation, etc.

5.      The learned counsel for the complainants states on instructions that the complainants are restricting their claim to the refund of the principal amount paid by them to the OP alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4.e of the agreement which reads as under:

“4.(e) Default

          If for any reason the developer is not in a position to offer the Apartment, as agreed herein, the developer may offer the Apartment Allottee(s) alternative property or refund the amount paid by the Apartment Allotttee(s) in full with interest @ 10% per annum from the date of payment(s) by the Apartment Allottee(s) without any further liability to pay any damages, charges or compensation.”

6.      The learned counsel for the complainants submits that the matter is covered by the previous decisions of this Commission including its decision dated 09.05.2019 in CC No.2712 of 2017 Amal Ganguly & Anr. Vs. M/s Unitech Ltd., CC No.1100 of 2015 Vibha Gupta Vs. M/s Unitech Ltd. & other connected matters decided on 28.11.2016 and the decision of this Commission dated 30.09.2016 in CC No.472 of 2015 Anil Kumar Gupta Vs. Unitech Ltd.

7.      The decision of this Commission in Vibha Gupta (supra) which pertains to this very project, to the extent it is relevant, reads as under:

5.    As regards the alleged non-availability of ground water on account of the use of ground water in building activities, having been stayed by the

Punjab and Haryana High Court, the following view taken by this Commission in Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matters, decided on 2.5.2016 is pertinent:-

“6. The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section-5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were

made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.”

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

(i)   The OP shall refund the entire principal amount of Rs.10657663/- 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 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.