JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      This order shall decide the above said four cases which are filed by eight different consumers named above, against the same builder and promoter, M/s. Unitech Ltd. & Ors.  All the eight consumers  have  got the same interest, therefore, there lies no rub in passing the common judgment in these cases.

2.      The facts of the case of Ravi Kumar Rajoria, Mr. Atul Malhotra and Mr. Pradeep Kumar Agrawal, in Complaint No.362 of 2014 are these.   The above said three complainants have booked a residential flat, each, during the year 2011 with OP No.1 under its project, “Unitech South Park”, Sector 70, Gurgaon, Haryana,  under subvention scheme of Punjab National Bank Housing Finance Ltd-OP No.2, details of which are reproduced as follows:

(i)      Ravi Kumar Rajoria, No.604 (6^th floor), Tower A-2, super area 1600 sq.ft. with covered car parking, for a sum of Rs.93,66,012/- (excluding service tax);

(ii)      Atul Malhtora & Mrs. Hina Malhotra, No.101, 2-Bed Room, Type B-3,super area 1245 sq.ft., for a sum of Rs.77,76,574/-; and

(iii)     Pradeep Kr. Agarwal, No.201 (2^nd Floor), Tower A-2, super area 1600 sq.ft. with covered car parking, for a sum of Rs.97,76,140/-.

3.      As per clause 2(c) of the buyer’s agreement, the entire payment was made by the complainants through the subvention scheme of OP No.2 i.e. Bank to the builder-OP No.1 in lumpsum in the year 2011 which payment otherwise should have been paid in instalments in phased  manner  for  completing the project in time. The basic feature of subvention scheme was that it was containing zero EMI for first 24 months and  thereafter,  the flat buyer was to pay EMI which was to start somewhere in July-August, 2013 and within 12 months of starting EMI, possession of the flat was to be handed over by OP to the complainants so as to deliver the flats within a total period of 36 months from the date of signing of agreement as per clause 4(a) (1) of the buyer’s agreement.  All the complainants signed the agreement in 2011 and thereafter subvention period of 24 months has expired and EMIs amounting to Rs.62,000/-  to Rs.80,000/- each, depending on the loan availed has also been paid to OP- bank but the project which should have been completed in 2014, is still at its initial stage and is not likely to be complete in time, soon.

4.      The Payment plan:

Payment description                    Due date                      Amount

1.      At the time of Registration    25/7/2011                     673493.00

2.      Within 45 days                       08/09/2011                   6813446.00 + 50% CMRC

3.      On final notice of possession                                  336748.00 +50%

CMRC+SDC & Other charges

5.      It is also pointed out  that our predecessor  Bench  passed order in August 2015, directing the OP1 to pay the EMIs to OP2- Bank, on behalf of buyers, but the said order was partially complied with by OP No.1 in as much as they have made partial payments i.e. one in September, 2015 and another payment  in January, 2016. Ultimately, this complaint was filed before this Commission with the following prayers.

“(i) to complete the project and handover the

possession of the flat in question to relevant complainant;

(ii) and till such time it is prayed that the opposite party No.1 to pay the EMI to the opposite party No.2 or    in the alternative the opposite party No.1 should pay the complainant’s EMI being borne by the complainants or in the alternative direct the opposite party No.2 not to charge EMI/interest from the complainant/recover the same from the opposite party No.1 for defaulting period.

(iii) direct the opposite party No.1 to pay a compensation of Rs.10,00,000/- to each complainant for not providing the flat in time as per original project timeline for mental torture, harassment and delay.

(iv) direct the opposite party No.1 to pay complainants additional amount to be spent towards the increased stamp duty due to delay in construction and handing over of possession of the flats.

(v) costs of litigation be awarded to the complainant”.

6.           Now we turn to the case  titled - Smt. Poonam Rani & her husband Sh. Abhishek Singh, Anr. Vs. M/s. Unitech Ltd. & Anr., in  Consumer Complaint No. 327 of 2015.  In March, 2011, they booked a flat bearing No.0504, Floor – 05, Towar/ Block B-2, with car parking space in the project of OP1, called  ‘Unitech South Park’, located at Sector – 70, Gurgaon, Haryana.  Like the previous case, the above said project  was  also backed by  the Subvention Scheme of Punjab National Bank – Opposite Party No. 5 in the original complaint.  The EMI was to start in the year 2013 and within 12 months of the starting of EMI,  possession was  to  be given  in time-bound manner, i.e., within 36 months, as per Clause 4(a) (i) of the Buyer’s Agreement dated 29.04.2011.  The possession was to be given by 29.04.2011.  On 31.03.2011, the complainants  received the allotment letter.  The rest of the facts are the same.  The flat was not handed over.  This complaint was filed with the following prayers :-

i) To complete the project and hand overthe possession of the flat No. 0504, Floor 05 Tower B2, along with car parking spacein opposite party No.1,s project i.e. Unitech South Park, Sector-70, Gurgaon, Haryana to Complainant.

ii) And till such time it is prayed that the Opposite    Party No.1 to pay the EMI to the Opposite Party No.5.

In the alternative direct the Opposite Party No.5 Not to charge EMI/Interest from the complainant /recover the same from Opposite Party No.1 for defaulting period.

Iii)  Direct the Opposite Party No.1  to refund to the complainant an amount of Rs. 74, 82,895/-( Rupees Seventy Four Lakhs Eighty Thousand Eight Hundred and Ninety Five only) together with interest there on at the rate for 18%  per annum compounded from the  date of payment of each instalment, till refund, till realisation

iv) Direct the OPs to pay the complainant Rs.10,00,000/- towards punitive damages for gross negligence, gross deficiency in services and unfair trade practices along with interest @ 18% p.a., from the date of filing of complaint till realisation.

v) Direct the OPs to pay the complainant Rs.10,00,000/- as compensation towards the mental harassment and mental agony meted out to the complainant by the OPs along with interest @ 18% p.a., from the date of filing of complaint till realisation.

vi) Direct the OPs to pay to the complainant such expenses as this Hon’ble Commission may deem fit and proper towards travel expenses, incurred by the complainant in his visits to the site, courier / postage charges, etc., incurred in corresponding with OPs, telephone calls to his counsel, along with such interest till the date of realisation as this Hon’ble Commission may deem fit and proper

vii) award costs including legal costs to the complainant; and

viii) pass such other and further orders as this Hon’ble Commission may deem fit and proper in the interests of justice and in the facts and circumstances of the case”.

7.      The third case pertains to Shrikant Upadhyay bearing Consumer Complaint No. 500 of 2015.  Shrikant Upadhyay, booked the flat on 25.07.2011 with Unitech Ltd., for a total consideration of Rs.78,23,687/- + CMRC + SDC and other charges + applicable service tax and accordingly a sum of Rs.6,73,493/- was paid vide Annexure CW-1/1.  The complainant was allotted Flat No.0004 in Block/Tower B-1, Ground Floor, Super area 1250 sq.ft. for which the basic price was Rs.67,34,937/- +  PLC Charges in the sum of Rs.3,75,000/- + EDC/IDC charges in the sum of Rs.4,13,750/- + Car parking charges in the sum of Rs.3,00,000/-, the Buyer’s Agreement was executed between the parties which is Annexure CW-1/2.  The flat was to be given within 36 months as per clause 17 of the application and clause 4(i) of the Buyer’s Agreement, from the date of signing of the Buyer’s Agreement, dated 03.09.2011. A Tripartite Agreement dated 11.12.2015 was executed between the ICICI Bank Ltd., and the parties, marked as Annexure CW-1/4.  More than 90% of the payment has already been made to the Builder.  The flat has not been given to the complainant till now.  The present complaint was filed with the following prayers :-

“i) To direct the OP to pay the EMI of ICICI Bank or the OP should pay the complainant EMI to be paid to ICICI Bank till handover of actual physical possession of flat in a livable and habitable condition with all amenities or in the alternative

Direct the OP to offer complainant an alternative property of same/ similar specification in the same locality as per Clause 4.e Default of Builder’s Agreement in a livable and habitable condition, or In the alternative :

To return the amount of the complainant with 18% p.a., compounded interest quarterly on the amounts paid by the complainant.

ii) in case flat is being offered by the OP

a) Direct the OP to pay complainant cost of funds @

18% p.a., on the amounts paid by the complainant,

from committed date of possession till the date of handover of flat in question in a livable and habitable condition with all amenities.

(b) Direct the OP to execute conveyance of the flat in favour of complainant and handing over of physical possession of the flat

iii) cost of the complaint.

Prayer :

i) to allow the reliefs sought in the paragraphs above

ii) to pass such further order or orders as this Hon’ble Commission deem fit and proper for granting complete relief to the complainant”.

8.      The last case, i.e., Consumer Complaint No. 513 of 2014,  was filed by Lt. Col. Ajay Singh (Retd.) and his wife, Mrs. Reena Singh, the complainants.  Both of them booked a Ground Floor in Gurgaon on 14.06.2011, with the OP, in a Construction Linked Plan and also made the payment of Rs.8,60,000/-  towards booking amount.  They paid the second installment in the sum of Rs.10,73,679/-  on 02.08.2011.  The Builder – Buyer’s Agreement was to be executed after receipt of 20% of the consideration of the flat, but the same was not executed.  The third instalment of Rs.10,97,999/- was paid on 22.09.2011, but no Builder – Buyer Agreement was executed.  The complainants were assured that the flat  would  be  delivered to the complainants well before three years.  The OP informed the complainant on 14.12.2011 that the PNBHFL (Punjab National Bank Housing Finance Ltd.), OP2 is partnering them in  the  subvention Scheme. The complainants were asked to opt for that Scheme, as they will pay the EMIs on account of loan, for 18 months. The OPs, without executing the builder – Buyer Agreement, insisted the complainants to opt for subvention Scheme.  The complainants ultimately agreed for the subvention Scheme on 17.12.2011.

9.      The complainants received a demand letter from OP1 on 20.12.2011 giving reference to their acceptance of subvention scheme and stating that balance amount of Rs.67,45,966/- was due or payable by or 04.01.2012 for them to avail this offer.  The loan was sanctioned by OP2 on 20.02.2012 without the builder – Buyer agreement.  The loan amount of Rs.65,00,000/- was sanctioned by OP 2 on 20.02.2012.  The builder – Buyer agreement was got signed on 24.02.2012 making the date of possession as 24.02.2015 giving the unfair advantage to OP1.  Letter of mortgage dated 27.02.2012 was sent by OP1 to OP2 mentioning that all clearances and approvals for the project were applied by OP1.  A Tripartite Agreement was signed on 27.02.2012 itself.   The loan amount of Rs.64,90,000/- got disbursed to OP1 by OP2, by 29.02.2012 in one-go, contrary to Article 2(5) of Loan Agreement  dated 28.02.2012 with OP2.  Service tax was also paid and total payment to OP1 was made in the sum of Rs.97,77,644/-, out of Rs.1,02,22,504/-

10.    The complainants had to pay the rate of interest on their EMI at 11.25%, w.e.f. 01.10.2013.  Rest of the facts such as environmental clearance, etc.,  are the same.  The flat was not handed-over to the complainants.  The Consumer Complaint  No.513/2014 was filed with the following prayers :

“a) By way of decree, the Builder, M/s. Unitech Ltd., be ordered to return / refund a sum of Rs.1,09,25,780/- along with interest @ 18% p.a., to the complainants, till realization, from the date of payment by the complainants to the Builder till actual recovery.  Due to default by the Builder in not giving possession of the flat to the complainants in time, M/s. Unitech Ltd., be asked to pay for the EMI and rent of the complainants rented accommodation till the refund of the complainants full amount with interest and damages  as deemed fit by the commission. 

b) M/s. Unitech Ltd., be ordered to pay a compensation amount on account of damages (mental stress and agony being undergone by the complainants since the last three years) to the complainants as directed and deemed fit by the Hon’ble Commission.

c) The complainants be awarded Rs.50,000/- as compensation in the above matter towards the cost and litigation expenses of the present complaint. 

d) Any other relief which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case be also awarded in favour of the complainants and against the opposite parties/ respondents”.

DEFENCE :

11.    The OPs have contested all these cases.

SUBMISSIONS AND FINDINGS :

12.    At the very outset, the counsel for the complainants submitted that the OP1 is unable to handover the flats, immediately. On the other hand, counsel for the  OP showed photographs which go to reveal that the parking space on  the Ground Floor has been partly constructed and the First Floor has been constructed  to some extent only, i.e., about 4-5 ft. height only. The structure is still under construction.  It is thus clear that the complainants cannot get their flats in the near future. Counsel for the OP has admitted that they have abandoned the said Scheme.  He could not tell when the flats would be handed over to the complainants. He admitted that it would take some time for completion of these flats.

13.    The second submission made by the counsel for the OP is that the OP is ready to refund  the entire amount(s)  to the complainants, but difficulties faced by the OP should be considered.  It was argued that the OP was very prompt in moving application for Environment clearance.  The same  was moved on 10.09.2011.  Notification of MOEF dated 14.09.2006 has been placed on record.  It clearly mentions that an application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1-A and Supplementary Form – 1A, as given in appendix, after the identification of prospective site(s) for the project and /or activities to which the application relates, before commencing any construction activity or preparation of land, at the site by the applicant.

14.    The total land area of the subject project is 81746.37 sq.mts.  The

counsel for the OPs contended that they got the environmental clearance on 01.01.2014 (Annexure C8).  The counsel for the OP further argued that as a matter of fact, the Chairman of the Environment Office, Sh. R.D. Shouhak, had passed away.  His  post remained vacant and, therefore, the delay had occurred.  There was 28 months’ delay on the part of the Government Department. However, it is note-worthy that entire amount constituting 90% or 95% of the total consideration backed by subvention Scheme was already paid.

15.    Counsel for the complainants have vehemently argued that OP did not disclose the fact that they had not got the environmental clearance even after receiving a lion’s share of the consideration of the flats, but it was disclosed for the first time that they have not received the environment clearance. They should have got the environment clearance before starting this project.  We find a considerable force in the arguments submitted by the counsel for the complainants that they have fraudulently misled and  cheated the complainants to buy the flats as they could not have given the possession of the flats within 36 months from the signing of the Buyer’s Agreement.  Instead of touching the heart of the problem, the learned counsel for the OP, just skirted it.

16.    Furthermore, the allotment of flat No. and Tower / Block Nos. and entering into the agreements with the Buyers without approval of the site plan by HUDA which included site plan of Tower and without approval of building heights by AAI, which are the material facts, were suppressed.  This was in violation of Sections 2, 11 & 13 of the Haryana Apartment Ownership Act, 1983.  The defence of ‘force majeure’ is an eye wash.  This amounts to unfair trade practice.  It is also note-worthy that Unitech applied to AAI for Height clearance, on 19.06.2012 and received the clearance on 16.07.2012.  They submitted site plan for approval from HUDA for drawing, on 27.05.2011 and received the approval on 12.07.2011.  However, agreement was prior to that.  It is just like putting the cart before the horse.

17.    M/s. Unitech Ltd. has many irons in the fire. It has floated projects without number.  It does not seem to making much headway with the project in dispute.  It seems that it has other fish to fry.  It has been accepting the money, whether, it was able to accomplish the work or not.  It is well said that to despise money, is to dethrone a King.  Money is a bottomless sea in which, honour, conscience and truth may be drowned.  The action of OP is below the belt.  It is unfair trade practice and deficiency on the part of the OP which stands proved to the hilt.

18.    Counsel for the OP further submitted that under these circumstances, another Bench  in Consumer Complaint case No.359 of 2015, titled Arun Datta & Anr. Vs. Unitech Ltd. & Anr, decided on 06.04.2016, granted simple interest @ 14.16% p.a., and imposed costs in the sum of Rs.2,10,000/-, on the OP – Builder.

19.    There is a delay of 5 years.  The facts of this case are different and unique. The complainants/consumers have incurred their hard-earned monies.  They have taken loans from the Banks.  They have already lost the idea of having paradise in their respective flats.  Again, ‘Home’ is seminary of all other institutions.  It is not clear, whether, they would get their flats/houses, till their life-time.  The Hon’ble Apex Court in K.A. Nagamani  Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012,  has held at paras 25  26,  as under :

“25.  The case of the complainant is covered by one of the examples  cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above.  In this case also, the amount was simply returned and the complainant  is suffering a loss inasmuch as she had  deposited  the money in the hope of getting a flat, but she is  being  deprived of  that  flat and thereby deprived of the benefit of escalation of the price of that flat.  Therefore, the compensation in this case should necessarily have to be higher, as per the decision of this Court.

               26.  For the reasons aforesaid, we allow the appeals and pass the following orders :- 

i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/-  from  the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer  Forum.

ii) The respondent is directed to pay the appellant – complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.

iii) The respondent is also directed to pay the appellant – complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her”.

20.    The counsel for the complainants also placed reliance on few  authorities, where, interest @ 18% p.a., was granted :

i) Batch of CC No.427/2014 & other connected matters – Satish Kumar Pandey & Anr. Vs. Unitech Ltd., decided on 08.06.2015;

ii) Batch of CC No.347/2014 & other connected matters – Swarn Talwar & Ors., Vs. Unitech Ltd., decided on 14.08.2015;

iii) CC No.267/2014 – Yogesh Sharma & Ors. Vs. Unitech Ltd., decided on 26.11.2015;

iv) CC No.368/2014 – Shweta Kapoor & Anr., Vs. M/s. Unitech Ltd. & Anr., decided on 14.01.2016.