IMPORTANT POINT
Complainants cannot be compelled to keep on waiting for OPs to obtain Occupancy Certificate.

V.K. Jain, Presiding Member—The complainants who are husband and wife booked a residential flat with the opposite party in a project namely Fresco, Nirvana Country which the said opposite party was to develop in Gurgaon. Vide letter dated 10.1.2007, Flat No.0601 in Block No.15 of the aforesaid project was allotted to the complainant for a total consideration of Rs.88,29,930/-. The aforesaid allotment was followed by execution of a Buyers Agreement between the parties on 6.3.2007. As per clause 4.a of the said agreement, the possession was proposed to be delivered to the complainant within 36 months, subject to force majure circumstances beyond the control of the developer. Clause 4.e of the agreement provided for refund in full with interest @ 10% p.a. without any further liability to pay damages if the developer for any reason was not able to offer the apartment. The complainants have already paid a sum of Rs.82,16,203/- but the possession of the flat has not been delivered to them. Being aggrieved, they are before this Commission seeking refund of the entire amount paid by them along with compensation in the form of interest @ 18% p.a. and additional compensation of Rs.10 lakhs for the mental agony and harassment caused to them.

2. The complaint has been resisted by the opposite party on the grounds which this Commission has repeatedly rejected in a large number of consumer complaints. The OP, however, has not disputed the payment made by the complainants. It is also not in dispute that the possession of the flat has not been delivered so far.

3. In Consumer Complaint No.13 of 2015 – Sumeet Singh Vs. M/s Unitech Ltd. & Anr. and several other connected complaints decided by this Commission on 18.1.2016, the complaints were resisted by the OPs on the grounds identical to the grounds taken by them in their written version to this complaint. Rejecting all those contentions and relying upon a number of its earlier decisions, this Commission directed delivery of possession of the flats to the complainants in Consumer Complaint No.13 of 2015 and Consumer Complaint No.15 of 2015 along with compensation in the form of simple interest @ 12% p.a. w.e.f. the expiry of the period stipulated in the buyers agreement/allotment letter for offering possession to them. For the sake of brevity, I am not reproducing the reasons given by this Commission while rejecting the grounds taken by the opposite party while resisting the said complaints.

4. When this complaint came up for hearing on 20.9.2016, the learned counsel for the opposite parties stated that they had offered possession of the flat to the complainants vide letter dated 28.8.2015, during pendency of this complaint subject to payment of the outstanding amount. She further stated that the said flat was still available with them for being handed over to the complainants. In view of the said statement, the OPs were directed to deliver possession of the flat complete in all respects and in a habitable condition to the complainants within 45 days from the date of the said order subject to the complainants giving an undertaking to this Commission that they shall pay to the opposite parties such further amount, if any, as may be directed by this Commission. It was further ordered that the questions (i) as to what is the balance amount, if any, payable by the complainants to the OPs and (ii) whether the complainants are entitled to any compensation and if so to what amount, would be decided at the time of final hearing.

5. When this matter came up for hearing on 22.11.2016, the learned counsel for the OPs stated that they had not obtained the Occupancy Certificate in respect of the aforesaid flat. Considering the statement, which the counsel had made on the previous date of hearing, the Managing Director of the OPs was directed to remain present to explain why the order passed by this Commission on 20.9.2016 had not been complied. The learned counsel appearing for the OPs states that