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

1.      The complainant Rama Sahdev booked a residential apartment with the opposite party in a project, namely, ‘Verve’ which the said opposite party was to develop in Greater Noida. Fat No.303 in Tower-6 of the aforesaid project  admeasuring 1588 Sq.ft. was allotted to her. The booking was made by her on 4.12.2006 and the Buyers Agreement between the parties was executed on 14.3.2007. The possession was to be delivered to her within 36 months from the date of the Buyers Agreement, i.e., 14.3.2010. Her grievance is that though she has already paid Rs.54,73,369/- to the opposite party, the possession has not been offered to her. She is, therefore, this Commission seeking refund of the amount paid by her to the opposite party along with compensation in the form of interest. The aggregate of the principal amount paid by the complainant and compensation claimed by her by way of interest comes to more than Rs.1 crore.

2.      The compliant has been resisted by the opposite party on the same grounds which this Commission today itself rejected in CC No.479 of 2015 – Alka Agrawal Vs. Unitech Reliable Projects Pvt. Ltd. and connected matters.

3.      Vide order dated 27.7.2016, this Commission directed as under:

          “The Opposite party is directed to file affidavit of its Managing Director stating therein that as per the rules of Greater Noida Industrial Development Authority, the Conveyance Deed of the flat in favour of the flat buyers can be executed on the basis of the Occupancy Certificate and no Completion Certificate for the project is required before execution of the Conveyance Deed. The opposite party is also directed to file photographs of the flat allotted to the complainant along with the certificate of its architect certifying therein that the construction of the flat is complete in all respects and all development works which the opposite party was to carry out in the aforesaid project as per the building plans, sanctioned by the Greater Noida Industrial Development Authority, have already been completed.

Re-notify on 24.8.2016”.

4.      In compliance of the said direction, the complainant has filed the affidavit of its Managing Director and the photographs.  However, the affidavit of the Managing Director of the opposite party does not state that as per the rules of the Greater Noida Development Authority, the conveyance deed of the flat, in favour of the flat buyer can be executed on the basis of the occupancy certificate and no completion certificate for the project is required before execution of the conveyance deed.  The learned counsel for the opposite party, on instructions, states that they are not a position to file an affidavit in terms of the aforesaid directions.

          The learned counsel for the opposite party also states that they are in a position to file the certificate of the Architect certifying therein that the construction of the flat is complete in all respects and all development works, which the opposite party was to carry out as per the building plan sanctioned by the Greater Noida Industrial Development Authority, have already been completed. Considering the statement made by the learned counsel for the opposite party, the complainant, in my view cannot be compelled to accept the possession of the flat which was allotted to her by the opposite party. She is entitled to possession coupled with execution of the Conveyance Deed in her favour. She is also entitled to the use and enjoyment of all the facilities and the amenities, which the opposite party is under a legal and contractual obligation to provide.

5.      Mr. Sahil, learned counsel for the opposite party states that along with the affidavit of Managing Director, they have filed a copy of the conveyance deed executed by them, in respect of the other project in the same vicinity on the basis of the occupancy certificate obtained from Greater Noida Industrial Development Authority.  However, the fact remains that the opposite party is not ready to commit by way of the affidavit of its Managing Director that the rules of the Greater Noida Industrial Development Authority permit execution of the sale deed on the strength of the occupancy certificate obtained by it and without obtaining the completion certificate for the project.  In any case, the opposite party has not even filed the certificate of the Architect, in terms of the directions dated 27.7.2016 and in the absence of such a certificate, it would be difficult to accept that the construction of the flat is complete in all respects and all development works which the opposite party was to carry out, as per the building plans sanctioned by Greater Noida Industrial Development Authority, have been completed.

6.      Since the complainant cannot be compelled to accept the possession of the flat allotted to her, she on the principles of parity, is entitled to refund of the amount paid by her to the opposite party, in terms of the decision of this Commission dated 16.09.2016 in CC/479 of 2015 and connected matters.  The complaint is therefore disposed of with the following directions:

(i)      The opposite party shall refund the amount of Rs.54,73,369/-to the complainant, along with compensation in the form of simple interest @ 18% per annum from the date of each payment till the date on which the principal amount, along with compensation in the form of interest is paid, in terms of this order;

(ii)      The opposite party shall also pay Rs.10,000/- as the cost of litigation in the complaint;

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

(iv)    If the order passed by this Commission in Consumer Complaint No. 535 of 2015 - Ravi Marwah & Mrs. Aarty Marwah Vs. Unitech Reliable Projects Pvt. Ltd.,  Consumer Complaint No. 536 of 2015 - Mr. Amit Bhatia & Mrs. Bhawna Bhatia Vs. Unitech Reliable Projects Pvt. Ltd., decided on 20.5.2016 or Consumer Complaint No. 709 of 2015, Ankur Goel Vs. Unitech Reliable Projects Pvt. Ltd. decided on 27.7.2016 is set aside or modified  by the Hon’ble Supreme Court before this order is complied, the order passed by the Hon’ble Supreme Court will apply to this complaint as well.