JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainants booked a residential flat with the OP in a project namely ‘The Exquisite’ in Nirvana Country-2 which the OP was to develop in Gurgaon. Vide allotment letter dated 03.01.2011, flat no. J1-09-0901 in the above referred project was allotted to the complainants for a consideration of Rs.1,46,57,700/-. The parties then executed a Buyers Agreement on 14.02.2011. As per clause 4(a)(i) of the said agreement, the possession was proposed to be delivered within 36 months of its execution, meaning thereby that it ought to have been offered by 14.02.2014. The grievance of the complainants is that despite that they having paid Rs.1,38,20,750/- to the OP, including Rs.1,02,57,399/- taken as loan from HDFC Ltd., the OP has failed to offer possession of the allotted flat to them. The complainants are therefore, before this Commission seeking refund of the amount paid by them to the OP alongwith compensation etc. 2. The OP has filed written version contesting the complaint but has not filed any affidavit by way of evidence, though the complainants have filed their affidavits by way of evidence. I have heard the learned counsel for the parties and have considered the affidavit filed by the complainants by way of evidence. 3. The learned counsel for the complainants places reliance upon the decision of this Commission in 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. 4. 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.” 5. The learned counsel for the complainants states that the complainants have paid interest averaging not less than 10.5% per annum to HDFC Ltd. on a loan of Rs.1,02,57,399/- taken from the said company and therefore, the complainants are restricting their claim to compensation in the form of simple interest @ 10.5% per annum on the aforesaid amount and for the rest of the principal amount, they are restricting their claim to 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. 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.1,38,20,750/- to the complainants alongwith compensation in the form of simple interest @ 10.5% per annum on the amount of Rs.1,02,57,399/- and @ 10% per annum on the balance amount 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. |
