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Judgment
V.K. Jain, J.
The learned counsel for the opposite party seeks an adjournment on the ground that the learned counsel of the opposite party is not available. However, I find no justification for the adjournment, particularly when no advance letter has been circulated, seeking adjournment. The request is therefore declined.
I have heard the learned counsel for the complainant. The learned counsel for the opposite party however has declined to make any submissions on behalf of the opposite party.
One Smt. Mukta Dhingra booked a residential flat with the opposite party in a project namely "Aster Court', which the opposite party to develop in Sector 85 of Gurgaon. Vide allotment letter dated 1.12.2010, Unit No.901, having super area of 2150 sq. ft. was allotted to her at a basic sale price of Rs.2544/- per sq. ft. Later on, the allotment was changed to Unit No. 4F-901 vide letter dated 03.10.2011. She then executed an Apartment Buyers Agreement with the opposite party on 10.12.2011. As per Clause 10.1 of the said agreement, the possession was expected to be delivered with thirty six months, plus grace period of six months from the execution of the said agreement or sanction of plans or commencement of construction, which was later, unless there was delay or failure due to reasons mentioned in Clause 11.1, 11.2 11.3 and Clause (38). The aforesaid allotment was purchased by the complainant from Smt. Mukta Dhingra, where-after a tripartite loan agreement was executed between the complainant, the opposite party and the Union Bank of India from which finance was taken by the complainant.
Before executing the said agreement, the allotment had been endorsed by the opposite party in favour of the complainant. In terms of the aforesaid tripartite agreement, the opposite party guaranteed that the construction will be completed as per the terms and conditions contained in the allotment letter dated 07.10.2010 and the possession would be delivered to the borrower within thirty six months as stated in the said allotment letter. The grievance of the complainant is that the possession of the flat has not been offered to him and even the construction is far from complete, despite about six years and eight months having expired from the date on which the apartment buyers agreement was executed. The complainant has already paid a sum of Rs.71,53,491/- and Rs.2,41,000/- as administrative charges to the opposite party. The complainant is therefore, before this Commission, seeking immediate possession of the aforesaid flat with compensation or in the alternative, refund of the amount paid by him, along with compensation in the form of interest.
The complaint has been resisted by the opposite party which has admitted the allotment made to the predecessor in interest of the complainant as well as the endorsement of the transfer in favour of the complainant after charging the requisite administrative fee. It is alleged that in WP No. 20032 of 2008 titled as Sunil Singh Vs. Ministry of Environment and Forests, the Hon'ble High Court, vide order dated 31.7.2012 imposed a blanket ban on the use of the ground water, in the region of Gurgaon and adjoining areas for the purpose of construction. It is further alleged that in the light of the said order, the opposite party had to arrange and procure water from alternative sources, which were far away from the construction site and the said arrangement required additional time and money, resulting in delay. It is thus claimed that the possession has been delayed on account of reasons beyond the control of the opposite party. A reference is also made to Clause 11.1, 11.2 and 11.3 and 38 of the Apartment Buyers Agreement. The opposite party however, does not claim in its written version that the construction of the flat allotted to the complainant is complete and that it is in a position to offer possession of the said flat to him.
Since the construction of the flat allotted to the complainant is not even alleged to be complete, the only question which arises for consideration is as to whether the delay in completion of the construction was on account of reasons beyond the control of the opposite party. Though it is alleged that the Hon'ble High Court had vide order dated 31.7.2012 imposed a blanket ban on use of the ground water for construction purpose. A copy of the said order has not been placed on record. The written version filed by the opposite party does not even disclose the period during which the aforesaid order of the Hon'ble High Court remained in force. As noted earlier, the opposite party had executed a tripartite agreement with the complainant and his banker on 14.8.2012. As noted earlier, by virtue of the said agreement, the opposite party guaranteed that the construction would be completed as per the terms and conditions contained in the allotment letter and that the possession would be delivered to borrower within thirty six months. Having made the aforesaid written commitment after passing of the order of the Hon'ble High Court, placing a ban on the use of ground water for construction purposes, the opposite party cannot take any advantage of the said order, in order to justify the delay in completion of the construction. The opposite party being aware of the order dated 31.7.2012, stated to have been passed by the Hon'ble High Court ought not to have committed a period of thirty six months as per the allotment letter for delivery of possession, while executing the tripartite agreement dated 14.8.2012.
A copy of the order of the Hon'ble High Court dated 31.7.2012 passed in CWP 20032 of 2008, which is available on the Internet shows that it was mandatory as per permission and environmental clearance given to the builders not to use ground water to construct any building. The High Court therefore, directed the construction to be stopped wherever any person was found contravening the conditions of the environmental clearance. It is therefore, evident that if the opposite party was seeking to use ground water for construction purposes, that was in violation of the conditions of the environmental clearance. Since the environmental clearance itself prohibited use of ground water for construction purposes, the opposite party ought to have taken the aforesaid factor into consideration, while committing the timeframe for delivery of possession to the allottees.
This is the case of the opposite party itself that the ground water had to be arranged from alternative sources. It clearly shows that the water was available for the purpose of construction though, it is possible that the opposite party had to incur additional expenditure for arranging water from the alternative sources. The written version filed by the opposite party does not show how much delay can be attributed to arranging water for construction purposes from alternative sources. Even if delay of a few months is attributable to arrangement of water from alternative sources that cannot justify the delay of more than three years since the possession in terms of the buyers agreement ought to have been delivered by June, 2015. What is more important is that despite the first prayer of the complainant being for delivery of possession of the flat, the opposite party has not come forward with an offer to deliver possession of the flat complete in all respects.
As far as reliance upon Clause 11.1, 11.2 and 11.3 is concerned, the same is of no help to the opposite party since there is no evidence of the delay in completion of the construction being beyond the control of the opposite party. There is no evidence of non-availability of cement and / or steel or other building material or water supply or electric power. There is no evidence or even allegation of slow down, strike or any dispute, resulting in delay in the construction. There is no allegation of any civil commotion, earthquake or any other act of God, resulting in the delay of delivery of possession. There is no evidence of the construction having been delayed on account of any order / notice of any public Authority. This is also not the case of the opposite party that the building plans were not approved by the Director Township & Country Planning, Haryana. In any case, the opposite party did not cancel the transaction on any ground whatsoever, and therefore, Clause 11.2 of the Buyers Agreement is not applicable.
For the reasons stated hereinabove, I hold that since the opposite party has failed to deliver possession of the flat allotted to the complainant, the complainant is entitled to seek refund of the amount paid by him to the opposite party along with compensation on that amount.
The learned counsel for the complainant states on instructions taken from the complainant that in order to avoid any further litigation in the matter, the complainant is restricting his claim in this complaint to the refund of the entire principal amount, including administrative charges paid by him, to the opposite party, along with compensation in the form of simple interest @ 10% per annum on the amount of Rs.71,53,491/- from the date of each payment till the date of refund. He however seeks payment of cost of litigation from the opposite party.
For the reasons stated hereinabove, the complaint is disposed of with the following directions:
(i) The opposite party shall refund the entire principal amount of Rs.71,53,491/-, along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund and administrative charges amounting to Rs. Rs.2,41,000/-.
(ii) The opposite party shall 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.