Delhi

StateCommission

CC/1161/2016

JAGDISH NARAYAN PALIWAL - Complainant(s)

Versus

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

JALAJ AGARWAL

13 Sep 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:13.09.2018

 

 

Complaint Case No.1161/2016

 

 

Shri Jagdish Narayan Paliwal,

S/o Shri Panna Lal Paliwal,

R/o A-32, Shivalik Nagar, Ranipur,

Haridwar (UP).

…Complainant

 

Versus

 

M/s. Unitech Ltd.,

6, Community Centre,

Saket, New Delhi – 110017.                                           ….Opposite Party

 

 

CORAM

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

 

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

    

2. To be referred to the reporter or not?

 

 

 

Justice Veena Birbal, President

 

 

1. Shri Jagdish Narayan Paliwal, the complainant herein had purchased an apartment/flat No.1402, 13^th Floor, Tower-23 in Unitech Horizon, at Greater Noida having Customer Code UZ1185A from original allottee Mr. Nitin Arora. It is alleged that the said apartment was originally allotted in the name of aforesaid person. It is stated that the total sale consideration of the aforesaid apartment was Rs.49,27,755/-.  It is stated that the original allottee had paid a sum of Rs.47,29,703/- i.e. about 95% of the total costs of the apartment and balance 5% was to be paid at the time of possession. It is further stated that after paying the requisite amount to the original allottee, the complainant stepped into the shoes of the said allottee and apartment was subsequently allotted to the complainant in August 2012 and his name was duly endorsed in the records of the OP  vide agreement cum endorsement dated 20.11.2012 (Annexure –A to the complaint). It is stated that OP also issued an allotment letter dated 27.11.2012 in favour of the complainant (Annexure –B to the complaint). It is alleged that the OP had assured that the said apartment will be provided to the complainant within a period of six months only from the date of allotment to the complainant. However, as promised the apartment was not delivered and finding some foul play, the complainant visited the site of construction wherein she was shocked to see that the pace of the construction of Tower  No.23 wherein the apartment was allotted to her, was very slow and upon making enquiry she was informed that it will take about 02 years more. Thereafter, complainant starting making enquiries about the status of the allotment, however, no response was given to her. It is alleged that OP failed to meet commitment and construction has not been completed as agreed. It is stated that the complainants have made several inquiries/calls to the OP regarding construction/possession of the flat but complainants did not receive anything except the false assurance given by the OP. It is further stated that on one hand, the complainants have been harassed by the OP by not carrying out the construction within the stipulated time and not responding to the letters of the complainant, on the other hand, the OP has been giving false and lucrative advertisement in the newspapers falsely advertising that the construction was  in full swing in the aforesaid project of the OP with the obvious malafide objective of getting unjust enrichment by inducing the prospective customers to part with their hard earned money by investing in the aforesaid project and thereby getting unjust enrichment at their expenses. Alleging deficiency in service and unfair trade practice on the part of the OP, complainant has filed the present complaint with the following prayers:

    

1. Direct  the opposite party to deliver the physical possession of the flat i.e. said Apartment/Flat  No.1402, 13^th Floor, Tower-23 in Unitech Horizon, at Greater Noida (UP) alongwith interest of 18% per annum till the delivery the possession of the flat.

 

2. Direct the opposite party to pay the maintenance charges and other charges till the delivery the possession of the flat.

 

382.  

 

3. Direct the opposite party to refund the money of the complainant i.e. Rs.47,29,703/- (Rupees Forty Seven lac Twenty Nine Thousand Seven Hundred and Three only) alongwith interest of 18% per annum from the date of deposit alongwith pendent lite and future interest at the same rate or such higher rate which this Hon’ble Commission may deemed fit in the interest of justice.

 

4. Direct the opposite party to refund the transfer charges of Rs.89,394/- (Rs. Eighty Nine Thousand Three Hundred and Ninety Four Rupees) to the complainant.

 

5. Direct the opposite party to refund the complainant Rs.1,02,073/- (Rupee One Lac Two Thousand Seventy Three) charged by opposite party from the complainant as penal interest.

 

6. Direct the opposite party to pay a sum of Rs.10,00,000/- to the complainant as compensation for harassment, inconvenience and mental agony caused by opposite party.

 

7. That a sum of Rs.50,000/- be allowed as litigation costs.

 

 

2. OP was served with the notice of the complaint. AR of the OP had appeared. However, no written statement was filed by the OP within the stipulated period as such the right of the OP to file written statement was closed vide order dated 24.08.2017. The said order was not challenged by the OP.
3. In support of their case, complainant has filed her own evidence by way of affidavit alongwith the written arguments. Complainant in her affidavit has reiterated the contents of complaint case on oath.  She has proved on record agreement cum endorsement dated 20.11.2012 in her favour i.e.  Exb. CW -1/A. She has also proved on record copy of Allotment Letter i.e. Ex-CW-1/B, copy of transfer charge of Rs.89,394/- i.e. Ex-CW-1/C; and statement of payments made i.e. Ex. CW -1/D, copy of letter/email dated 22.08.2016 i.e. Ex. CW -1/E.  He has deposed about the amount paid to OP i.e. Rs.47,29,703/- apart from an amount of Rs.89,394/- taken by the OP as transfer charges and payment of an amount of Rs.1,02,073/- taken from the complainant as penal interest for delay payment. He has also deposed that possession of the flat was to be handed over despite the aforesaid period being over. He has further deposed that 95% payment has been made to the OP.  Complainant has stated on oath that delay in handing over the possession is an unfair trade practice on the part of OP.  He has further stated in the affidavit that the complaint be allowed and relief prayed be granted.
4. There is no evidence on behalf of OP as their right to file written statement was closed vide order dated 24.08.2017.
5. From the un-rebutted evidence, it stands proved that OP has received in all Rs.49,21,170/- for the flat in question but has failed to deliver the possession of the said apartment to complainant as per terms and conditions of the agreement/allotment Letter Ex. CW -1/B,  and substantial period has already elapsed from the agreed date of possession. One is not expected to wait indefinitely. In the absence of any explanation for failure to handover possession as per the stipulated date, we hold that the OP has committed deficiency in service and has indulged in unfair trade practice.
6. Ld. Counsel for the OP has referred to Clause 4(e) of the Agreement between the parties i.e. Exb. CW-1/B, which deals with compensation to be paid if OP is not in a position to offer possession of Apartment to Allottee.  The relevant clause is reproduced as under:

 

“If for any reason the Company is not in a position to offer the Apartment, altogether, the Company shall offer the Allottee(s) an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay any damages or any other compensation on this account.”   

 

7. On reading the above, it is clear that if OP is not in a position to offer the possession of the Apartment, OP shall refund the amount alongwith simple interest @ 10% p.a.  In the present case, OP has failed to deliver the possession of the Apartment even after the expiry of stipulated period.  The allottee is not expected to wait for possession of the Apartment for an indefinite period.  Thus, OP is directed to refund the amount deposited by the complainants along with 10% interest per annum.
8. In view of above discussion, the present complaint is allowed and OP is directed to refund the entire amount of Rs.49,21,170/- to the complainants within 8 weeks from today alongwith compensation by way of simple interest @ 10% per annum from the date of receipt of each payment till realization. OP shall also pay Rs.20,000/- as cost of litigation to the complainants.
9. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. 

              File be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member