Delhi

StateCommission

CC/1251/2016

KUNDAN S. BHANDARI & ANR. - Complainant(s)

Versus

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

RAJ K. MITTAL

05 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Decision: 05.02.2019.

 

Complaint Case No. 1251/2016

 

In the Matter of:

         

1. Sh. Kundan S. Bhandari

S/o late Sh. N S Bhandari

 

2. Mrs. VimlaBhandari

W/o Sh. Kundan S. Bhandari

AdarshArya Apartment

Plot No. 39 A, Sector-6

Dwarka, New Delhi-110075.……Complainants

 

Versus

 

M/s Unitech Limited

Through its Managing Director/Director

Having its registered office at:

6, Community Centre, Saket

New Delhi-110017

 

Also At:

 

Grande Pavillion, Sector-96

Express Way (Near Amity Management School)

Noida-201305 (UP)                                                                  …….Opposite Party

 

 

CORAM

 Justice VeenaBirbal, President

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.             This is a complaint filed under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’).
2.             The case of the complainants is that they had booked a residential plot in the project of OP namely “UniHomes” at Uniworld City developed in Sector-MU, Greater Noida, UP by depositing a sum of Rs. 2,85,000/- vide receipt no. 000190 on 01.10.2009. The complainants were provisionally allotted Plot no. 0022, Main 04, Street 00 ad measuring 191.30 sq. yds. @ of Rs. 15,000.00 per sq. yds., vide letter dated 01.10.2009. The total cost of the flat was Rs.35,45,539/-. At the time of booking of the plot, OP had assured to deliver the plot, within 18 months from the date of allotment.  Thereafter, allotment letter dated 24.07.2010 was forwarded to complainant by OP. The complainants have stated that they had paid an amount of Rs.24,19,928/ till 20.12.2012 as against the total agreed price of Rs.35,45,539/-. It is stated that OP did not adhere to its commitment to deliver possession of the plot within the agreed period. The complainants wrote a number of e-mails to the OP in response to which OP only gave assurances, but neither any plot was handed over nor any definite date of delivery of the possession was given.
3.             Aggrieved by the deficiency in service and unfair trade practice on part of the OP present complaint is filed with the prayer to refund an amount of Rs.52,48,747/- with interest @18% per annum, damages and compensation of Rs.5,00,000/- and litigation cost of Rs.75,000/-.
4.             Notice was issued to the OP. The AR of OP appeared on 31.05.2017 and received a copy of the complaint, but OP failed to file written statement within the prescribed period and the right of the OP to file written statement was closed on 09.08.2017. OP did not challenge the said order. The complainants filed their evidence by the way of affidavit. Both parties filed their written arguments.
5.             In evidence the complainants have reiterated the complaint on oath. The complainants have also exhibited the copy of receipt dated 01.10.2009 Ex.CW1/1, copy of provisional allotment letter dated 01.10.2009, EX.CW1/2, copy of letter dated 17.08.2010, Ex.CW1/3; copy of allotment letter dated 24.07.2010 EX.CW1/4, copy of receipts dated 15.03.2010, Ex.CW/5; copy of receipt dated 01.07.2010, Ex.CW1/6; copy of receipt dated 17.08.2011 EX.CW1/7; copy of receipt dated 20.12.2012, Ex.CW1/8, and copy of the various e-mails exchanged on different dates between complainant and OP, EX.CW1/9(Colly).
6.             We have heard the counsel for the parties and perused the material on record.
7.             The contention of the complainants is that the OP failed to offer possession of the plot as per the terms and conditions of allotment letter which caused tension, mental agony, harassment to the complainants and their dream to have their own house is shattered, despite depositing their hard earned money. Further the OP has mis-utilized the funds deposited by them to expand their business.
8.             It is evident from the terms and conditions of the allotment letter dated 24.07.2010 that complainants were allotted Plot no.0022 on Main 04, Street 00 in Unihomes for a total consideration amount of Rs.35,45,539/-. It is also clear that out of the total consideration amount was Rs.35,45,539/-, Rs.24,19,928.00/- has been paid by complainant. It is also clear from Clause 5.(A) of the Allotment Letter that possession of the aforesaid plot was to be offered within a period of 18 months form the date of signing of said Agreement.  
9.             Clause 5. A. of the Allotment Letter  reads as under:-

 

1. Possession

 

1. The possession of Plot is expected to be offered by the Developer within 18 months hereof subject to Force Majeure circumstances (as mentioned herein) or such other circumstances as are beyond the reasonable control of the Developer and upon registration of Sub lease Deed provided that all the amounts due and payable by the Allottee(s) in accordance with the Terms and Conditions of Allotment have been paid to the Developer. It is, however, understood between the parties that the development of the Colony/township shall be completed in phases.

 

10.             In View of the above OP was supposed to deliver the possession of the plot by 24.01.2012. It is stated by the complainants that there is no development work at the site even after expiry of about 08 years. The complainants have also written number of e-mails to the OP enquiring about the possession of his plot and the OP replied that sewerage and drainage pipelines are laid and work is near completion for the water pipes, however no plot has been handed over to OP till date. It is stated by the complainant that they booked the plot with a hope for better living by constructing the same and to reside there but due to the delay in handing over the possession by the OP their dreams of having their own home is shattered and therefore they have asked the OP to refund their money alongwith interest but the OP did not refund their money despite repeated requests.
11.             As noted above, the right of OP to file written statement was closed vide order dated 09.08.2017. From the complaint as well as the unrebutted evidence of the complainant it is proved that despite having received Rs.24,19,928/-  OP has failed to deliver the possession of the plot. In the absence of any evidence/explanation for failure to comply with the stipulation of delivery of possession, we are of the considered view that OP has committed ‘deficiency in service’ and has also indulged in unfair trade practice by not handing over the Plot within the stipulated time.
12.             As regards the question of compensation, clause 5 D of the Allotment Letter deals with the liability of the OP in case they are unable to offer possession. Clause 5 D is reproduced as under:

 

4.  

“If for any reason the Developer is not in a position to offer the Plot, The Developer shall be responsible only to consider allotment of an alternative property or refund the amount deposited by the Allottee(s) along with the simple interest @10% p.a. However, the Developer shall not be liable to pay for any other damages, charges or compensation on this account.”  

 

13.             On reading of the above, it is clear that if for any reason, the OP is not in a position to offer possession of the plot, the OP shall refund the amount with simple interest @10% p.a. (from the date of payment by the purchaser) without any further liabilities. There is no dispute that OP has failed to deliver the possession of the plot till today. The complainants cannot be expected to wait for possession of the plot for an indefinite period.  
14.             In view of the above discussion, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.24,19,980/- 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 to the complainant.               

 

15.             Copy of the orders be sent to the parties free of costs as per rules.

File be consigned to Record Room.

 

                                                                                                                                                                                       (Justice VeenaBirbal)

                                                                                                                                                                                             President

 

​

 

(Salma Noor)

Member​