Delhi

StateCommission

CC/642/2014

SHRI SANDEEP BRAJ - Complainant(s)

Versus

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

VIKAS NEGI

15 Jan 2020

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 15.01.2020

Date of Decision : 23.01.2020

Complaint No. 642/2014

 

In the matter of :-

 

Shri Sandeep Braj,

320, Nirman Apartments,

Mayur Vihar, Phase-I,

Delhi-110091.                                                                   ….........Complainant

 

Versus

 

M/s. Unitech Ltd.,

Through its Director/MD,

6, Community Centre,

Saket, New Delhi-110017.                                               ….......... Opp. Party

                                                                

CORAM

 

Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. The complaint has been filed on the allegations that OP floated a scheme under name and style of ‘Unitech Unihome’ for allotment of flats at Flat No.GHP 0001, Phase-II, Sector-117, Noida, UP.  Complainant applied for booking a three bed room flat vide application dated 11.09.2009.  He was allotted Flat No.D4-02-0205 forRs.30,95,094/- under Link Instalment Plan B.  He paid Rs.50,000/- vide cheque dated 10.09.2009.  He further paid Rs.2,50,000/- by cheque on 11.10.2009.  Allotment letter dated 11.09.2009 was issued. Terms and conditions of the said letter are not only unilateral but against spirit of law.  since he has already paid Rs.3,000,000/-, he did not have any option but to sign the allotment letter. 

 

2. Complainant paid Rs.2,00,000/- by cheque on 30.12.2009, Rs.20,445/- by cheque dated 16.04.2010.  OP issued letter dated 26.03.2010 of offering rebate of 8% on all future dues, on basic sale price of BCP, PLS and parking charges on preponement of future instalment with an understanding that Rs.24,50,772/- would be paid on or before 12.04.2010.  He paid Rs.19,50,000/- vide cheque dated 03.04.2010.  Possession was assured to be delivered within 24 months from the date of allotment.  He was paying rent @Rs.22,000/- to 27,000/- per month.  He took loan from the bank.  OP failed to perform contractual obligations. Complainant sent letter dated 20.10.2012 and 14.12.2012 but did not receive any positive response. OP issued letter dated 10.03.2014 demanding Rs.1,09,239/-.  He sent mail dated 30.03.2014 and 15.04.2014.  OP issued reminder dated 29.04.2014.

 

3. As OP charges interest @18% per annum on delayed payment, he is also entitled to interest @18% per annum. Apart from that he is entitled to rent for the delayed period at the rates as mentioned in para-13 of the complaint. OP is also liable to be interest paid by the complainant to the bank and Rs.5,00,000/- as damages towards mental agony and harassment and inconvenience.  He sent legal notice dated 07.07.2014.  OP has called him in his office and offered that if he withdraws the notice, OP would give interest @8% per annum and adjust the amount deposited by complainant towards current and future demands. Hence this complaint for directing OP to handover possession of the flat, pay interest @18% per annum, pay rent, pay Rs.5,00,000/- as damages.

 

4. OP filed WS raising objections that complaint is not maintainable as the complaint has been filed by one of the allottees only.  The flat was booked jointly by the complainant and his wife Mrs. Archana Kumari.  It took preliminary objections that the parties entered into an agreement whereby OP agreed to sell Apartment No.0205, Block-D4 in the complex “Unihomes PH-II” to be developed in Sector-117, Gurgaon, Haryana with super area of approximately 91.97 sq. mts. for Rs.30,95,094/-.  Delivery of the apartment  was proposed to be offered within 24 months subject to Force Majeure.  Overall recession and financial problems which plagued the real estate industry not only in India, but globally, and which were not foreseen, also contributed to the delay in the completion of the project. Due to active implementation of social schemes like National Rural Employment Guarantee Act and Jawaharlal Nehru National Urban Renewal Mission, there was sudden shortage of labour as the available labour preferred to return to their respective states due to guaranteed employment. There was agitation of farmers in Noida and Greater Noida. More than 500 writ petitions were filed in Hon’ble High Court of Allahabad challenging notification u/s 4 & 6 Land Acquisition Act.  Some portion of the land of project was also subject matter of writ petition.  The Writ Petition No.37443/11 titled as Gajraj Singh Vs. State of UP was decided on 11.10.2011.  The farmers went in Hon’ble Supreme Court of India where the appeal was decided on 14.05.2015 number of which was Civil Appeal No.4506/11 titled as Savitri Devi Vs. State of UP.  Decision of the Hon’ble High Court of Allahabad was upheld. Restraint order dated 11.11.2013 was passed by NGT regarding restriction on use of Ground Water Extraction for construction purposes in Noida and Greater Noida. The work had to be stopped for quite some time.

 

5. This Commission has no territorial jurisdiction as the agreement provided that court at Gautam Budh Nagar, UP had the exclusive jurisdiction as per clause 14 of the Agreement.  In taking this objection, OP has placed  reliance of decision of Hon’ble Supreme Court in A.B.C. Laminart Pvt. Ltd. Vs. A.P. Agencies, Salem, AIR 1989 SC 1239.  Cause of action arose at Noida, correspondences were made at Noida.  OP also placed reliance of decision of Hon’ble Supreme Court in Sonic Surgical Vs. National Insurance Company Ltd. IV (2009) CPJ 40SC.  There was arbitration clause in the agreement. Clause 5.c.ii of agreement provided that in case of delay in handing over of possession, OP was liable to pay charges to the tune of Rs.5/- per sq.ft. per month. On merits OP took the same defence.  It denied liability to pay any damages.

 

6. Complainant filed rejoinder and his own affidavit in evidence.

 

7. On the other hand, OP filed affidavit of Sh. Anshu Adarsh, AR which is on the lines of WS.

 

8. The complainant has filed written arguments. OP has also filed written arguments.

 

9. I have gone through the material on record and heard the arguments. At the outset it may be mentioned that OP has tried to create confusion regarding location of the apartment by mentioning address of booked flat as that of Gurgaon instead of Noida.  Anyhow, since the documents filed by complainant speak of the flat in Noida, number of the flat, area of the flat, price of the flat are same as pleaded by the complainant, I hold that complaint pertains to booking of flat in Noida.

 

10. Booking by the complainant, payments made by him and inability of OP to deliver the flat within time are not in dispute.

 

11. Simply because the complainant has not joined his wife as one of the complainants, complaint cannot be dismissed on that ground alone. Consumer Protection Act is beneficial legislation in which technicalities cannot come in the way of the complainant. Moreover, the other co-allottee is not a stranger but wife of the complainant.

 

12. Objection of force majeure is not available to the OP.  The reason being that force majeure is confined to natural calamities like flood, earth quake.

 

13. Objection about territorial jurisdiction is liable to be rejected.  The decision of Hon’ble Supreme Court in A.B.C. Laminart Pvt. Ltd. pertains to civil suit.  As per decision of National Commission in FA No.142/01 titled as Shanti Vs. Ansal Housing, 2002 SCC onlines NCDRC 18 CPC, is not applicable to proceedings under Consumer Protection Act and agreement ousting jurisdiction of one of the court having jurisdiction, is not valid. Similar view has been taken in II (2013) CPJ 37B case note, I(2013) CPJ 169 NC and Neha Singhal Vs. Unitech II (2011) CPJ 88. The same has been reiterated in III (2017) CPJ Union Territory of Chandigarh.  Office of the OP is situated in Delhi.  Hence, this Commission has jurisdiction.

 

14. Decision in Sonic Surgical pertains to insurance and same is not applicable. The same deals with branch office.  

 

15. Arbitration clause has no effect as per decision of the Hon’ble Supreme Court in EMAAR MGF Vs. Aftab Ahmad, I (2019) CPJ Page-5.

 

16. Providing for payment for penalty of delayed possession @Rs.5/- per sq.ft. per month hardly comes to interest @Rs.2-3% per annum which is quite meagre. The same amounts to one sided agreement and unfair trade practice.  OP is directed to refund Rs.24,50,000/- with interest @9% interest per annum from the date of respective payments till date of refund.  Since complainant has been granted interest on payments made by him, he cannot get the rent paid by him as that would amount to dual benefit to the complainant.

 

17. Copy of the order be sent to both the parties free of cost.

 

18. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)

                               

 

 

245.