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

          The complainant booked a residential flat with the OP in a project namely ‘Unitech Verve’ which the OP was to develop in Sector Pi-II of Greater Noida.  Vide allotment letter dated 13.01.2007, Apartment No.1001 in Tower 1 of the aforesaid project was allotted to the complainant.  The aforesaid letter was followed by a formal allotment letter dated 12.03.2007 enclosing therein the terms and conditions of the said allotment.  As per clause 4(a)(i) of the terms and conditions of the allotment, the possession ought to have been delivered within 36 months thereof, meaning thereby that the possession ought to have been delivered to the complainant by 12.03.2010.  The grievance of the complainant is that the possession of the flat has not even been offered to him despite he having already paid Rs.59,52,776/- to the OP.  The complainant is therefore, before this Commission seeking refund of the aforesaid amount alongwith compensation etc. 

2.      The OP filed its written version contesting the complaint but has not filed any affidavit by way of evidence though the complainant filed his rejoinder and affidavits way back on 31.08.2017.  The learned counsel for the complainant states that the matter is covered by the previous decision of this Commission.  Hence, there is no justification for grant of further time to the OP for filing its affidavits particularly when more than one year has already expired since affidavit by way of evidence by the complainant and no one was present for the OP when the matter was called.  The right of the OP to file its affidavits therefore, stands closed. 

3.      The learned counsel for the complainant states that the grounds on which the complaint has been contested have already been rejected in several decisions of this Commission relating to this very project.  Reliance is placed upon the decision of this Commission in CC No. 253 of 2017 Sanjiv Razdan & Anr. Vs. Unitech Reliable Projects Pvt. Ltd. decided on 05.12.2017 and Kiran Agarwal Vs. Unitech Reliable Projects Pvt. Ltd. decided on 31.08.2017.  Reliance is also placed upon Dewan Ashwani & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. CC No. 282 of 2012. 

4.      In Consumer Complaint No. 709 of 2015, Ankur Goel Vs. Unitech Reliable Projects Pvt. Ltd. relating to this very project and decided on 27.7.2016, some additional contentions were advanced by the opposite party and were rejected by this Commission, taking the following view:

5.      The learned counsel for the complainants also relies upon the decision of the Hon’ble Supreme Court in Sudha Jain Vs. Chief Manager & Anr. [(2007) 5 SCC 717]. In Sudha Jain (supra), the State Commission directed return of the complaint for being filed before the District Forum, on the ground that the claim made in the complaint was exaggerated. The order of the State Commission was confirmed by this Commission in the revision petition. Setting aside the order passed by this Commission, the Hon’ble Supreme Court held as under:- 

“As the amount claimed was Rs.68,51,321, which was within the jurisdiction of the State Commission and beyond the jurisdiction of the District Consumer forum. The State Commission was not justified in a returning the complaint. Accordingly, the civil appeal is allowed, impugned orders are set aside and the complaint is restored to its original file. Now, the State Commission shall dispose of the complaint in accordance with law after giving opportunity of hearing to the parties.”

Reliance is also placed upon Neha Suri Vs. M/s Unitech Reliable Projects Pvt. Ltd. CC No. 977 of 2015 decided on 04.01.2017. 

5.      The learned counsel for the complainant states on instructions that in order to avoid further litigation in the matter, the complainant is restricting his claim to the refund of the principal amount paid by him alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4.e. of the terms and conditions of the allotment which reads as under:

“4.e. Default:

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 paid in full with simple interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.”

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

(i)      The OP shall refund the entire principal amount of Rs.59,52,776/- to the complainant 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 complainant.

(iii)     The payment in terms of this order shall be made within three months from today.