Delhi

StateCommission

CC/734/2016

RAJNESH GIRI - Complainant(s)

Versus

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

G.D. CHOPRA

22 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                         

Complaint Case No. 734/2016

 

Dated: 20^th February, 2019

 

In the matter of:

 

Rajnesh Giri

G-10, Vivek Apts.

Shrestha Vihar

•  

 

Versus

M/s Unitech Ltd.

Through Managing Director

Registered Office:

6 Community Centre

Saket, New Delhi-110017              .........Opposite Party

                                                                                                                  

BEFORE:

 

JUSTICE VEENA BIRBAL                 -                       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

 

ORDER

 

Justice Veena Birbal, President

 

1.         A complaint filed under section 17 of Consumer Protection Act 1986 (in short, the ‘Act’) is filed by complainant Sh. Rajnesh Giri wherein it is stated that complainant was allotted an apartment by OP bearing no. 0904 on Floor No. 09 in Tower A5 admeasuring super area of 83.52 sq. mtr. (899 sq. ft.) at Unitech Unihomes-3 in plot No. GHP0001, Sector 113, Noida. An allotment letter dated 02.04.2012 giving the details of terms and conditions of provisional allotment was also executed between the parties. The total consideration of the apartment was Rs. 30,17,427/-. It is stated that complainant had paid Rs. 2,80,308/- at the time of booking and further two instalments of Rs. 3,24,492/- and Rs. 3,19,274/-  respectively by way of cheques favouring OP. It is stated that as per clause 5 of terms and conditions of the allotment, OP had agreed to give the possession of the apartment within 30 months from the date of detailed terms and conditions of allotment dated 02.04.2012 subject to force majeure circumstances or the circumstances beyond the control of developer. It is stated that as and when payment was demanded, the complainant had paid the same. It is stated that complainant had in all paid Rs. 23,36,533/- to OP. It is stated that despite receiving substantial amount, OP never indicated the location of the tower wherein the flat was allotted to the complainant nor informed the stage of construction despite repeated requests made by the complainant. Complainant had written number of letters to OP but no response was given. Even legal notice dated 13.02.2014 was sent. But no reply was given. It is stated that till date complainant is not aware of the stage of construction nor OP has informed anything in this regard. The period for handing over the possession has already lapsed long back and no offer of possession is also made by the complainant. It is stated that there is deficiency in service and unfair trade practice on the part of OP. By way of present complaint complainant has made prayer for delivery of possession or in the alternate refund of amount paid by him alongwith interest @ 18% p.a. from the date of deposit till the date of payment.
2.         Notice of complaint was sent to OP. Counsel for OP had appeared. No written statement was filed by OP. Therefore, vide order dated 09.08.2017 right of OP to file written statement was closed. The aforesaid order is not challenged by the OP and as such has become final.
3.         To prove its case, complainant has filed evidence by way of affidavit wherein contents of the complaint case are reiterated on oath. Complainant has also exhibited following documents i.e. letter of allotment dated 09.01.2012, Exhibit CW1/1; payment schedule, exhibit CW1/2; terms & conditions of allotment, exhibit CW1/3; receipt of Rs. 2,80,308/-, exhibit CW1/4; receipt of Rs. 3,24,492/-, exhibit CW1/5; receipt of Rs. 3,19,274/-, exhibit CW1/6; notice dated 01.05.2014, exhibit CW1/7; exhibit CW1/8; legal notice dated 13.02.2014 issued by complainant, exhibit CW1/9; invoice by OP dated 28.02.2014, exhibit CW1/10; copy of final notice (prior cancellation) dated 28.03.2017 demanding payment, exhibit CW1/11; complainant’s letter dated 08.04.2014 making payment of Rs. 11,43,108/- under protest, exhibit CW1/12; receipt for payment of Rs. 11,43,108/-, exhibit CW1/13 OP.
4.         Complainant has filed written arguments also. We have heard Ld. Counsel for parties.
5.         Evidence by way of affidavit of complainant has gone unrebutted and unchallenged. The documents on record establishe that the complainant had booked subject apartment with OP and vide letter of allotment dated 09.01.2012 exhibit CW/1, complainant was allotted subject unit and in pursuant thereto had made a payment of Rs. Rs. 23,36,533/-. As per terms and conditions exhibit CW/3 the agreed period for handing over the possession has already lapsed long back and till date the construction is not complete. OP is enjoying the hard earned money of complainant. The deficiency in service and unfair trade practice is established on the part of OP.
6.         Counsel for OP is present and has fairly conceded that even till date construction is not complete. Terms and conditions of allotment are placed on record i.e. CW1/3. Clause 5D of Ex CW1/3 provides that in case OP is not in a position to offer the apartment in that event it has agreed to offer alternative property as far as possible of similar area without any further liability to pay any damage and compensation. In the present case no such offer has been made by OP. The complainant cannot be expected to wait for possession of apartment for an indefinite period.
7.         In view of above discussion, we allow the complaint and direct OP to refund the amount of Rs. 23,36,533/- to the complainant alongwith compensation by way of simple interest @ 10% p.a. from the date of each receipt of amount till of its realization.

The aforesaid payment shall be made by the OP to the complainant within a period of 08 weeks from the date of receipt of this order.

8.         Copy of the order be sent to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(Justice Veena Birbal)​

President

(Salma Noor)​

Member