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Judgment
V.K.Jain, J
A Memorandum of Understanding was executed on 12.4.2013 between OP-1 Shubhkamna Buildwell & Estates Pvt. Ltd. and OP-2, namely, Govt. and Public Sector Employees Welfare Housing Organization (Regd.) whereunder the OP No.1 planned construction of residential flats of different sizes in a housing complex, namely, 'Shubhkamna Epic' on Plot No.GH-02/A, Sector-12, Greater Noida, West which had been allotted to it for development of a group housing project and Opposite party No.2 expressed desire to take 820 built up flats of various sizes from OP-1 in the said project. Clause 17 of the MOU, reads as under:-
"That in case a member of the Organization withdraws after 6 months of registration with a notice of 45 days, the Promoter will refund the entire amount with simple interest @ 6% per annum. In case a member withdraws after 12 months or more, he shall be paid interest @ 12% p.a. for the period the money was kept with the Promoter/Organization. No re-sale in the project will be allowed under any circumstances whatsoever."
The opposite parties jointly advertised the above-referred project, namely, Shubhkamna Epic, issuing a brochure in their joint names wherein OP No.2 claimed to be a society setup with the objective of providing dwelling units to the government offices on 'no profit no loss basis' and claimed to be managed by serving and retired government employees. It also claimed to have completed one project in Noida and another project, namely, Shubhkamna City in Gr. Noida West. Opposite party No.1 also claimed to have completed several projects mentioned in the brochure.
Pursuant to the aforesaid brochure issued by the opposite parties, several persons applied for allotment of residential flats in the proposed project and residential flats of varying sizes in the said project were allotted to them by opposite party No.1. The payment was made by way of cheques issued in the name of OP-2 whereas the allotment letters were issued by OP-1. The builder Shubhkamna Buildwell & Estates Pvt. Ltd. also executed Builder Buyers Agreement with some of the allottees. Under the said agreements, the possession was to be delivered within three years of the start of construction which was recorded to have started in the year 2014. A grace period of six months was also available to the builder for completing the construction.
The grievance of the complainants is that there is no worthwhile construction on the site even till date, though initially some construction was raised. According to the complainants, the OPs seem to have abandoned the project and there is no prospect of the project being completed. The complainants are therefore before this Commission with a joint complaint under Section 12(1)(c) of the C.P. Act seeking refund of the amount paid by them along with compensation etc.
No one appeared for OP-2 despite service by publication. There was appearance on behalf of OP-1 but no written version was filed. The right of OP-1 to file its written version was closed initially on 6.1.2016. Thereafter, permission under Section12(1)(c) of the C.P. Act was granted to the complainants on 24.3.2017, in view of the decision rendered by a three-Members Bench of this Commission dated 7.10.2016 in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. A public notice of the complaint was also published in the newspapers and pursuant to the said notice, several other allottees applied for impleadment in this complaint and were impleaded accordingly. Since no written version was filed even thereafter, the right of both the OPs to file written version was also closed vide order of this Commission dated 12.3.2018.
I have heard the learned counsel appearing for the allottees and have considered the affidavits and documents filed by them. No one is present for either of the opposite parties. As noted earlier, neither any written version nor any affidavit by way of evidence has been filed by them.
Since the OPs have not completed the construction even within three and a half years of commencing the same and about two years have since expired, the allottees cannot be compelled to wait any more particularly when the construction has not made any substantial progress and there is no prospect of its being completed in near future. This is also evident from the fact that the OPs have chosen not to contest this complaint by not filing a written version. The allottees on whose behalf or for whose benefit this complaint is instituted and who have a common grievance against the opposite parties, the said common grievance being the failure of the OPs to complete the construction and deliver the flats despite having received substantial payment from them, they are entitled to refund of the amount paid by them along with appropriate compensation etc.
The learned counsel for the allottees submit that in view of Clause 17 of the MOU executed between them and OP Nos.1 & 2, they are entitled to compensation in the form of simple interest @ 12% p.a. since more than 12 months have already expired since the time allotement was made to them. I am in agreement with the allottees. The complaint is therefore disposed of with the following directions:-
The opposite parties shall refund the entire amount received by either of them from such allottees of the project, namely, Shubhkamna Epic proposed to be developed on Plot No.GH-02/A in Sector-12, Greater Noida, West who are desirous of taking refund of the amount paid by them, alongwith compensation in the form of simple interest @ 12% p.a. from the date of each payment till the date of refund. The liability of the opposite parties shall be joint as well as several irrespective of which out of them is the recipient of the sale price.
The payment in terms of this order shall be made within three months from today.
The opposite parties shall pay a sum of Rs.50,000/- as the cost of litigation to the complainants.