PRESIDENT
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
CONSUMER
CASE NO. 1604 of 2017
Versus
M/s Unitech
LTD (Opposite party –OP)
6. The learned counsel for the
complainants also submits that in order to avoid any further litigation in the
matter, 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% per annum, in terms of Clause 4€ of the Buyers 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 Allottee (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.”
7. For the reasons stated hereinabove
the consumer complaint is hereby disposed of with the following directions:
i.
The
opposite party shall refund the entire principal amount of Rs.1,31,12,152/- to
the complainants, along with compensation in the form of simple interest @ 10%
per annum from the date of each payment till the date of refund.
ii.
The
opposite party shall pay a sum of Rs.25,000/- as the cost of litigation to the
complainants.
3. The Builders Buyers Agreement
executed between the parties fortifies the case set out in the complaint and
shows that the possession of the flat allotted to the complainant ought to have
been delivered by 02.7.2017. Since the possession of the flat has not even been
offered to the complainants, they cannot be compelled to wait any more and are entitled
to refund of the amount paid to the opposite party.
4. All the above referred grounds
have repeatedly been rejected by this Commission in a number of cases including
CC No. 182 of 2015 and connected matters decided on 29.09.2016. The following
view taken in the aforesaid matters is relevant for the purpose of deciding
this complaint:
“6. As regards the delay in
obtaining the environmental clearance, the opposite party knew before accepting
booking from the complainants and allotting a flat to them that since the size
of the project was more than 20,000 sq.ft. of built up area, environmental
clearance in terms of the Notification dated 14.9.2006 would be necessary and
the said clearance would be given only after the project was approved by State
Environment Impact Assessment Committee and then by State Level Environment
Impact Assessment Authority. It was, therefore, necessary for the opposite
party to either obtain the requisite environmental clearance before accepting
the booking or at least inform the buyers that the construction would commence
only after obtaining the requisite environmental clearance which they were yet
to receive. This is particularly necessary in a case where the builder is
promising delivery of the apartment in a time-bound manner linked with the date
of the Buyer’s Agreement and not with the date on which the construction
actually commences after obtaining all the requisite clearances. If such a
disclosure is made to the buyer and still he chooses to make a booking knowing
fully well that the builder may not be held responsible for the delay to this
extent it is attributable solely to the concerned environmental authority, it
will not be possible to hold the builder responsible for the delay in the
aforesaid extent.”
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”
6. 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.
7. 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.
8. 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
9. 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 laour 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 labor nor the
building material in sufficient quantity was available in the open market.”
Warm Regards
For FEDERATION
OF RESIDENTS WELFARE ASSOCIATION
KULDEEP KUMAR
KOHLI
PRESIDENT
