Commission rules for refund and compensation after delay in possession of residential unit

The Commission ruled in favor of the complainant, who sought a refund and compensation due to delay in possession of a residential unit. The opposite party failed to justify the delay citing legal and environmental factors. The Commission held that cancellation charges were inapplicable as the delay was not due to the complainant's actions. The complainant was entitled to a refund of the principal amount along with compensation in the form of simple interest. The opposite party was ordered to refund the principal amount, pay compensation with interest, cover litigation costs, and make the payment within three months.

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Issues Involved:
1. Delay in possession of the residential unit.
2. Alleged reasons for delay including legal and environmental factors.
3. Jurisdiction of the Commission in light of RERA.
4. Applicability of cancellation charges.
5. Entitlement of the complainant to refund and compensation.

Detailed Analysis:

1. Delay in Possession of the Residential Unit:
The complainant booked a residential flat in the 'ORB Towers' project, which was to be developed by the opposite party in Sector 74 of Noida. According to the allotment letter dated 10.12.2014, possession was to be delivered within 30 months, by June 2016 or at the latest by December 2016, including a grace period. However, the possession was not offered, and the construction was incomplete despite the complainant having paid Rs. 1,08,16,881/-. The complainant sought a refund along with compensation.

2. Alleged Reasons for Delay Including Legal and Environmental Factors:
The opposite party contested the complaint, citing several reasons for the delay:
- Legal challenges: Writ petitions by farmers challenging land acquisition, leading to delays in construction.
- Environmental restrictions: Orders by the National Green Tribunal (NGT) stopping ground water extraction and construction within a 10 km radius of the Okhla Bird Sanctuary.

The Commission referred to previous decisions, particularly in the case of Pradeep Kumar Verma, where similar pleas were rejected. The NGT orders were found to apply only to projects without proper environmental clearance. The opposite party failed to prove that their project was affected by these orders or that they had obtained the necessary clearances before starting construction.

3. Jurisdiction of the Commission in Light of RERA:
The opposite party argued that the Real Estate (Regulation and Development) Act (RERA) provisions should apply, thus questioning the Commission's jurisdiction. However, this issue was settled by a previous decision of the Commission, affirming its jurisdiction to entertain consumer complaints despite the existence of RERA.

4. Applicability of Cancellation Charges:
The opposite party contended that clause 37 of the agreement allowed them to forfeit 15% of the unit cost as cancellation charges. The Commission clarified that this clause applied only when the allottee sought cancellation for personal reasons. In this case, the complainant was forced to seek cancellation due to the opposite party's failure to deliver possession on time. Therefore, clause 37 was deemed inapplicable.

5. Entitlement of the Complainant to Refund and Compensation:
The opposite party argued that since they had not abandoned the project and intended to complete it, the complainant should wait until possession could be offered. The Commission rejected this argument, noting the indefinite delay and the complainant's unwillingness to wait further. The complainant restricted his claim to a refund of the principal amount along with compensation in the form of simple interest at 10% per annum from the date of each payment till the refund date.

Conclusion:
The Commission ordered the opposite party to:
1. Refund the entire principal amount of Rs. 1,08,16,881/- to the complainant along with compensation in the form of simple interest at 10% per annum from the date of each payment till the date of refund.
2. Pay Rs. 25,000/- as the cost of litigation to the complainant.
3. Make the payment within three months from the date of the order.

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