IMPORTANT POINT
The delayed payment having been accepted with interest, the alleged default was condoned by the OP.

ORDER

V.K. Jain, Presiding Member—The complainants applied to the opposite party Logix Infratech Pvt. Ltd. for allotment of residential apartment in a project namely ‘Blossom Greens’, which the opposite party was to develop in Sector 143 of Noida. Vide allotment letter dated 21.7.2011, apartment No. K 601 in the above referred project was allotted to them for a consideration of more than Rs.1.00 crores. The parties then executed a flat-buyers agreement dated 25.8.2011, incorporating their respective obligations in respect of the said transactions. As per Clause 17 of the terms and conditions of allotment, the developer was endeavour to complete the construction and deliver possession within a period of eighteen months, though a grace period of six months was also available for this purpose. Thus, the possession ought to have been delivered within two years from the execution of the agreement on 25.8.2011. The grievance of the complainants is that the possession of the allotted flat has not even been offered to them despite they having already paid Rs.96,74,631/- to the opposite party. The complainants are therefore, before this Commission, seeking refund of the said amount, with compensation etc.

2. The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the payment received from them. It is however, claimed that the complainants had committed delay in making payment for which interest amounting to Rs.70,159/- was levied on them. It is also alleged vaguely that the project got delayed as NGT ordered use of only recycled water for construction purposes and rapidly changing price of the material further hit the progress of the work.

3. Though the complainants had allegedly delayed payment of some instalments, interest was for the said delay debited in their account. If the complainants had defaulted in making timely payments of the instalments, nothing prevented the OP from cancelling the allotments made to the complainants, forfeiting the Earnest Money and returning the balance amount to the complainants. That having not been done and delayed payment having been accepted with interest, the alleged default was condoned by the OP. Hence, the relief sought by the complainants cannot be denied on account of the alleged delay.

4. The opposite party has not placed on record the order of the NGT referred in its written version. In the absence of the said order, it cannot be known when the NGT directed use of only the recycled water for the construction purposes. In any case, if a ban was imposed on the use of the ground water for the construction purposes, it was for the builder to arrange the water from such alternative sources where it could be available. The flat buyers cannot be penalised for the order of the NGT, prohibiting use of the ground water for construction purposes.

5. As per the terms and conditions of allotment, the possession ought to have been delivered within two years of 25.8.2011, when the agreement was executed between the parties. The possession therefore, ought to have been delivered latest by 25.8.2013. More than five years have since expired but the possession of the allotted flat has not been offered and the construction is not complete, even as on today. The complainants cannot be made to wait indefinitely for the possession of the allotted flat when there has already been a delay of more than five years. The complainants are entitled to refund of the amount paid by them to the OP, along with compensation.

6. In Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra Civil Appeal No. 3182 of 2010 decided on 25.3.2019, the possession of the flat was to be delivered by the builder by 30.6.2009. However, the completion certificate was received by the builder only on 29.3.2016. On a consumer complaint filed by the respondent, the State Commission directed refund of the amount paid by the complainant to the appellant, before the Hon’ble Supreme Court, with int