Delhi

StateCommission

CC/574/2015

ISH PRASANNA PALTANI & ANR. - Complainant(s)

Versus

M/S UNITECH LTD. - Opp.Party(s)

08 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 08.02.2019

Complaint Case No. 574/2015

In the matter of:

Ish Prasanna Paltani & Sangeeta Paltani

89 C Paraspar Colony, Chuna Bhatti,

Kolar Road, Bhopal (MP)-462016.                                         ..........Appellant

 

Versus

 

M/s. Unitech Ltd.

1. Through its Managing Director, 6, Community Centre, Saket

New Delhi-17

 

2. Through Manager Customer Care, Unihomes Noida, UGCC Pavilion, Sector-96,

Expressway Noida (UP)-201305.…….Respondents

 

CORAM

 

SALMA NOOR                                    -                       MEMBER

 

1.             Whether reporters of local newspaper be allowed to see the judgment?                                    Yes

2.             To be referred to the reporter or not?                                                                                                      Yes

 

 

SALMA NOOR            -           MEMBER

 

1.        The complainants booked Flat no.407 in Tower D4 with super area of 766 sq. ft. in ‘Unihomes Phase II’ in sector 117 of Noida. The basic consideration price of the flat was of Rs.2871 per sq. ft. and the payment was construction linked. According to the Buyer Sellers Agreement the possession of the apartment was agreed to be delivered within 24 months from the date of agreement i.e. 09.09.2009. The complainants paid Rs.14,69,042/- within 19 months as demanded by the OP.  It is alleged by the complainants that they were very prompt in payments and had never delayed any of the payments rather they have deposited an advance payment of Rs.4,39,045/- on 14.07.2010 on the assurances given by the OP that they will pay interest @9% on advance money paid by them. It is alleged by the complainants that after 19 months of executing the Flat Buyer’s Agreement the complainant found out that the said tower had not even reached the plinth level. Thereafter, complainant contacted the officials of the OP to know about the progress of the project but the OP was clueless about the deadline and instead OP offered Flat no.002 in tower F1 having super area 951 sq. ft. whose structural civil work was almost complete and complainant was told that it would be ready for possession by the set deadline. It is stated that for the unit OP asked the complainants to give differential super area at the new market rate i.e. BCP of Rs.3150 per sq ft. and all other conditions and deadlines would be the same as stated in the original Buyer Seller Agreement. Complainant agreed to the above and new unit was allotted vide letter dated 13.05.2011. On 28.07.2011 revised demand note was raised for payment of Rs.12,10,729/- which was paid on 19.08.2011 Revised Allotment Letter was also issued carrying original date of allotment as 09.09.2009. It is stated by the complainant that out of total price of Rs.30,39,634/- they had paid Rs.26,18,848/- which is 86% of the total agreed price. It is alleged by the complainant that on assurance of OP, they shifted from Delhi to Noida, in view of the academic sessions of their children into a rented house by paying Rs.16,500/- per month. It is alleged that the project was never completed and they were burdened with financial crunch and had to relocate from Noida to their home state in Bhopal. It is alleged that the OP had never honored their commitment to hand over the possession of the said flat. Thereafter complainants had sent legal notice to the OP on 17.06.2015 which was never replied by the OP.
2.        Alleging deficiency in service complainants have filed the complaint with the following prayers:-

1. To deliver the possession of the said unit by 31.03.2016 as per their standards, designs, and commitment made in the advertisement booklet. Else cancel the said allotment and refund the money at current market price @Rs.6500/-.
2. To pay quarterly compound interest @9% per annum on Rs.4,39,0455/- which is the credit balance(i.e. advance payments) as per account statement dated 14.07.2010 to 08.09.2011.
3. To pay quarterly compound interest @12% per annum on Rs.26,18,848/- w.e.f. 09.09.2011 till the time possession.

 

3.        Notice of the complaint was issued to the OP. AR of OP appeared and received the copy of the complaint but no written statement was filed within the stipulated period and the right to file written statement was closed vide order dated 03.08.2016. The said order has not been challenged by OP.
4.        The complainants have filed their evidence by way of affidavit and written arguments.
5.        The complainants Sh. Isha Prasanna Paltani and Ms. Sangeeta Paltani have filed evidence by way of joint affidavit and have placed on record copy of  advertisement issued by the OP, copy of the Buyer Seller Agreement cum allotment letter dated 09.09.2009, account statement dated 27.07.2011, photograph of site as on March 2012 of Tower D3 and D4 indicating condition of site 06 months after promised date of possession, letter dated 13.05.2011 by which OP offered Flat no.002 in Tower1, receipts of payments of Rs.12,10,279/-, revised allotment letter dated 09.09.2009, account statement upto date 12.04.2012, rent agreement of complainant, photograph of F Block as on July 2012, the photograph of F Block as on Feb 2013, photographs of F Block in Dec 2014, statement issued by Blue Home Finance Ltd. indicating 12% as interest rate charged from complainant, construction update till Feb 2015, photograph of letter dated 26.03.2015 issued by OP, notice sent to OP by complainants on 17.06.2015, email sent to OP on 09.06.2015 and 17.06.2015, brochure of Unihomes 2 Block G and H, brochure of Unihomes phase 3 press release dated 04.04.2014, copy of list of projects that started alongwith Unihomes and are awarded OC, demand letter dated 27.01.2016, email dated 22.02.2016 sent to OP, letter dated 09.06.2016 of offer for reconciliation; marked as Evidence No.1 to Evidence No.24 respectively in the affidavit.
6.        We have heard the arguments and perused the material on record.
7.        Evidence on record of complainants has gone unrebutted and establishes that OP has failed to construct and deliver the possession within the stipulated period of 24 months from the date of execution of Buyer Seller Agreement i.e. September, 2011. Since then more than 07 years have passed and till today no offer of possession has been made by OP. It is stated by the complainants that neither the construction is completed nor the OC has been obtained by the OP. Material on record shows that complainants have already paid Rs.26,18,848/- out of total price of Rs.30,39,634/- to OP. In the absence of any defense of OP for failure to comply with the stipulated date of delivery of possession of flat, we are of the considered view that OP has committed deficiency in service and has also indulged in unfair trade practice.
8.        As regards compensation, clause 5(D) of the Allotment Letter deals with the liability of the OP in case they are unable to offer the possession of the flat. The aforesaid clause is reproduced as under:

5 (D) Default

“If for any reason the Developer is not in a position to offer the allotted Apartment, the Developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with Simple Interest A10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

 

9.        On reading of the above, it is clear that if for any reason, OP is not in a position to offer possession of flat, OP shall refund the amount with simple interest @10% p.a. There is no dispute that OP has failed to construct and deliver possession of the flat even till today. The complainants cannot be expected to wait for possession of the flat for an indefinite period of time. Complainants have already paid substantial amount to OP towards sale consideration and have suffered harassment as they had to be shifted from Delhi to Noida and further from Noida to Bhopal. It may be mentioned that for each and every date of hearing, the complainant no.1 had been commuting from Bhopal to Delhi at his own expense.
10. In view of the above facts and circumstance, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.26,18,848/- paid to the complainants within forty five days from the date of receipt of the order alongwith simple interest @10% from the respective date of payment of installments and Rs.2,00,000/- towards compensation to the complainant.

 

11. Copy of the orders be sent to the parties free of costs as per rules. Thereafter file be consigned to Record Room.

 

                                                                                                                                                                                     (Justice VeenaBirbal)

                                                                                                                                                                                                President

 

 

(Salma Noor)

Member