Delhi

StateCommission

CC/1229/2016

PRAKHAR BHATNAGAR & ANR. - Complainant(s)

Versus

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

SOMESH CHAND JHA

16 Apr 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

Date of Decision: 16.04.2019

 

Complaint Case No. 1229/2016

 

In the Matter of:

       

  1. Prakhar Bhatnagar

C/o- Dr. Jagbir Singh, G-1,

Plot No. 10 A, Sector-6, Vaishali,

Ghaziabad, U.P.

 

  1. Ms. Soniya  Chaudhary,

C/o- Dr. Jagbir Singh, G-1,

Plot No. 10A, Sector-6, Vaishali,

Ghaziabad, U.P. …Complainants

 

Versus

 

M/s. Unitech Ltd.,

Through its Managing Director,

Having its registered office at

6, Community Centre, Saket,

New Delhi-110017....Opposite Party

 

 

CORAM

 Justice Veena Birbal, President

Salma Noor, Member

 

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

2.   To be referred to the reporter or not?                                                                    

 

SALMA NOOR, MEMBER

 

  1.  Present complaint is filed under Section 17 of the Consumer Protection Act 1986 (in short the ‘Act’).
  2.  Briefly facts of the case are that complainants applied for and were allotted an Apartment bearing unit no. 902, Block G2, 9th Floor admeasuring 1268 sq. ft. in in the project of OP Known “Unihomes PH-II”, Plot no. GHP 0001, Sector-117, Noida UP. The total sale consideration of the flat was Rs.49,61,485/-. Thereafter, on 23.03.2013, detailed Terms and Conditions of provisional allotment were executed between the parties. It is stated that complainants opted for construction linked plan. It is further stated that as per clause 5A of the detailed Terms and Conditions of provisional allotment, possession of the said flat was to be handed over to the complainants within 36 months i.e. by 24.12.2015. It is alleged by complainants that till date the OP has not even started the construction of the flat. It is alleged that in fact no work is going on in the project. It is stated that complainants have paid Rs.13,69,112/- to the OP. It is stated that complainants have made various representation to OP but construction is on complete stand still. It is further alleged that whenever complainants have enquired about the construction, they were informed by the staff of the OP that the construction will start after about 06 months or so.  It is further stated that due to the delay in giving possession of the flat, complainants are forced to live in a rented accommodation.
  3. Alleging deficiency in service and unfair trade practice on the part of OP, the complainants have filed the present complaint with the following prayers:-
  1. Direct the OP to refund the amount paid by the complainants alongwith interest @18% p.a. compounded quarterly from the date of respective payments made by the complainants till the date of realisation;
  2. Order the OP to pay a sum of Rs.1,62,000/- (One Lakh and Sixty Two Thousand Only) being the rent paid by the complainants;
  3. Direct the OP to pay a sum of Rs.5,00,000/- (Rupees Five Lakh only) as compensation for mental agony and mental harassment suffered by complainant on account of deficiency in service committed by the OP;
  4. An order may be passed directing the OPs to pay litigation cost of Rs.1,00,000/- (Rupees One Lakh) to the complainant;

 

  1. Notice of the complaint was issued to the OP. Counsel for OP had appeared on 20.09.2017 and received copy of the complaint, but failed to file written statement within the prescribed period and the right of OP to file written statement was closed vide order dated 12.04.2018. The said order has not been challenged by OP.
  2. Complainants have filed evidence by way of affidavit and written arguments. OP has also filed its written arguments.
  3. The complainant-1 Sh. Prakhar Bhatnagar has filed his own affidavit by way of evidence wherein the facts stated in the complaint case have been reiterated on oath and has also exhibited on record allotment letter dated 24.12.2012, Ex.CW-1/1; copy of detailed terms and conditions of provisional allotment dated 23.03.2013, Ex.CW-1/2; photograph of Tower G-2 taken on 04.09.2016, Ex.CW-1/3(Colly); and payment receipts dated 23.03.2013, Ex.CW-1/4.
  4. We have heard the arguments of the parties and perused the material on record.
  5. The evidence of complainants have gone unrebutted and unchallenged from the unrebutteed evidence it stands established that Apartment No. 902 Tower G2 on Floor No. 9 was booked by the complainants in the project of OP. It also stands established that the complainants have also paid a total sum of Rs.13,69,112/- towards sale consideration. The grievance of the complainants are that as per Terms and conditions of the provisional allotment the possession of the flat was expected to be handed over within 36 months of execution of the Terms and Conditions which is already over long back and construction is at stand still. Clause 5C(ii) of the Agreement provides that if the Developer i.e. Unitech fails to handover the possession within the stipulated period of 36 months, OP will pay charges @ Rs.5/- per sq. ft. per month for the period of delay in offering the possession of the apartment.
  6. As noted above the defence of OP has already been struck down. OP in the written arguments has taken the plea that due to force majeure circumstances OP is unable to hand over the possession of the apartment to the complainants. The force majeure circumstances alleged are restrain orders passed by National Green Tribunal regarding ground water extraction for construction purposes as a result of which OP had to depend on Noida/Greater Noida Authority for supply of water for construction and related purposes.  The other force majeure circumstances alleged is agitation by farmers in Noida and Greater Noida and filing of writ petitions by farmers in Allahabad High Court. It is alleged that there was strike by farmers due to which there was disruption in construction activity. To substantiate its aforesaid pleas OP has not filed any affidavit in support of aforesaid contentions. In such circumstances the above plea taken by the OP has no substance as the same has remained unsubstantiated. Further the aforesaid plea of OP has already been rejected by National Commission in no. of cases in other projects of OP at Noida. Reliance is placed on the judgment of Richa Aggarwal and Anr. vs. Unitech Hitech Developers Ltd., I (2017) CPJ 216 (NC); S.N. Mohanty vs. Unitech Hitech Developers Ltd., I (2017) CPJ 550 (NC); Krishna Swami Subramanium vs. Unitech Hitech Developers Ltd., III (2017) CPJ 682 (NC).
  7. Thus, we find no force in the plea of Force Majeure taken by the OP in the written arguments. From the unrebutted evidence filed by the complainants it is proved that despite having received Rs.13,69,112/-. OP has not done even substantial construction and time for handling over of possession has already lapsed.
  8. In our considered view OP has committed deficiency in service and has also indulged in unfair trade practice.
  9. Regarding the question of compensation, Clause 5(D) of the Detailed terms and conditions of provisional allotment deals with the compensation to be paid by the OP in case OP is unable to offer possession.
    1. 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 @10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

 

  1.           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 apartment, 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 till today not completed the construction of apartment. The complainants cannot be expected to wait for possession of the apartment for an indefinite period. 
  2.           In view of the above discussions, the complaint is allowed with the following directions:

 

The OP shall refund the entire amount of Rs.13,69,112/- paid to the complainants within eight weeks from today alongwith simple interest @10% from the date of each deposit till the realization.

 

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

 

                                                              (Justice Veena Birbal)

                                                                 President

 

 

                                                              (Salma Noor)

                                                                 Member

 

 

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