Delhi

StateCommission

CC/1513/2017

RAVINDER MIDHA - Complainant(s)

Versus

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

PRADEEP MAHAJAN

11 Jul 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 11.07.2019

Complaint Case No. 1513/2017

In the matter of:

Dr. Ravinder Midha

S/o Late Dharam Chand Midha

R/o 838-D, Sector-7 Extension,

Opposite Gouri Shankar Mandir,

Gurgaon-122001                                                             ….....Complainant

 

Versus

 

M/s. Unitech Ltd.

Through its Managing Director/Authorized Signatory,

6, Community Centre

Saket, New Delhi-110017

 

Also at:

Unitech House

Block-L, South City-1, Gurgaon                                        …..Opposite Party

 

                                                                  

CORAM

SALMA NOOR , Presiding Member

 

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

2.             To be referred to the reporter or not?                                                                                                     

 

 

SALMA NOOR  : Presiding Member

 

1. Present complaint is filed under Section 17 of the Consumer Protection Act 1986 (in short the ‘Act’).
2. Brief facts of the case are that the complainant booked a 2 Bedroom residential flat with OP vide allotment letter dated 21.05.2011. Complainant was allotted flat no. 0130 Block/Tower B, Ground Floor with super area of 942 sq. ft. in Unihomes Sector 16, Ambala with a total sum of Rs.23,80,824/- . The Flat Buyer’s Agreement (in short the ‘Agreement’) was executed between the parties on 17.06.2011. In view of the Flat Buyer Agreement OP was supposed to handover the possession of the flat to the complainant within 24 months from the execution of the Flat Buyer Agreement that means the delivery of the flat ought to have been delivered to the complainant by June, 2013. It is alleged by the complainant that as the possession of flat was not forthcoming and substantial payment was made by the complainant, OP persuaded the complainant to swap the unit as mentioned above with the Unit No. B-00-0032 (two bed rooms apartment) admeasuring 953 sq. ft. in Unihomes Sector-16, Ambala for which the complainant agreed and the amount paid earlier i.e. Rs.9,61,124/- has been credited in the new unit. It is stated that the OP has charged additional amount of Rs.18,202/- which was paid on 10.04.2015. In this way total amount paid by the complainant to the OP is Rs.9,79,326/-. The swapping/change was confirmed by OP vide its letter dated 10.04.2015 and customer code No. UHA-0253. It is further stated that in view of the new agreement the total consideration amount was also enhanced to Rs.24,16,956/-. It is stated that even after swapping there was no construction at the site. It is stated that OP neither has raised further demand nor offer any possession letter to the complainant. It is stated that complainant has approximately paid Rs. 10 lacs in the year of 2011-12, OP is using his hard earn money without issuing any possession/offer of possession. It is alleged that after having received substantial payment OP has failed to deliver the possession of the flat to the complainant and he is staying in a rental apartment. Complainant had also issued a legal notice dated 21.08.2017 to OP which was never replied. It is further stated that the tower is yet to be completed and the project which is a multi tower complex, none of the flat buyers including the complainant till date has been given offer of possession. It is alleged that OP has pocketed the hard earned money of the complainant with the dishonest and malafide intention which is causing mental agony and harassment to the complainant.
3. In view of the aforesaid facts alleging deficiency in service on the part of OP, complainant has filed the present complaint with the following prayers:

1. To direct the OP to return the amount of the complainant with 18% p.a. interest on the amounts paid by the complainant.
2. Cost of the complaint.
3. Pass any other or further orders as may be deemed fit and proper in facts and circumstances of the present case.

 

4.  Notice of the complaint was issued to the OP. Counsel for OP appeared and received copy of the complaint on 08.03.2018, but failed to file written statement within the prescribed period and the right of OP to file written statement was closed on 19.09.2018. OP did not challenge the said order.
5. Complainant filed evidence by way of affidavit and written arguments. OP has not filed written arguments despite given sufficient opportunities.
6. The complainant, Mr. Ravinder Midha, has filed her 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 the allotment letter dated 21.05.2011, Ex.CW-A; Buyer’s Agreement dated 17.06.2011, Ex.CW-B; letter dated 08.04.2015 issued by complainant, Ex.CW-C; Letter No. UL;RED 859/15 dated 10.04.2015 issued by OP, Ex.CW-D; amendment agreement, Ex.CW-E; statement of account dated 11.08.2017, Ex.CW-F; legal notice dated 21.08.2017, Ex.CW-G.
7. I heard the arguments of the parties and perused the material on record.
8. As noted above the evidence of complainant has gone unrebutted and unchallenged. From the unrebutted evidence it stands established that the construction of the unit in question is not near completion yet and the period of 6 years is already over. It is also stated by the counsel for the complainant that there is no sign of completing of the project in near future. OP has retained hard earned money of the complainant.
9. In the absence of any evidence/explanation for failure to comply with the delivery of possession, we are of the considered view that OP has not completed the construction and is not in a position to deliver the possession of the flat to the complainant despite receiving an amount of Rs.9,79,326/- from the complainant in the year of 2011 and has committed deficiency in service and also indulged in unfair trade practice.
10. Clause 4.e. of the Allotment Letter deals with the inability of the OP in case they are unable to offer possession. Clause 4.e. is reproduced as under:

Clause 4.e

“That if for any reason whatsoever, the Developer is unable to offer the allotted Floor to the Purchaser(s), as agreed herein, the Developer will offer the Purchaser(s) an alternative property in any complex developed, underdeveloped or proposed to be develop in the surrounding area/projects and if o alternate property is available the Developer will refund the amount paid by the Purchaser(s) in full with simple interest @10% per annum from the date of payment(s) by the Purchaser(s). The Developer shall not in the event of such an eventuality be liable to pay any other damages, charges or compensation.”

 

11. 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 flat, the OP shall be laible to 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 construct and deliver the possession of the flat till today. The complainants cannot be expected to wait for possession of the flat for an indefinite period. 
12. In view of the above discussions, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.9,79,326/- paid to the complainant within forty five days from the date of receipt of the order alongwith simple interest @10% from the respective dates of payment of instalments to the complainant.

 

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

 

 

 

(Salma Noor) 

Presiding Member