Delhi

StateCommission

CC/610/2016

SONIA CHHOKRA - Complainant(s)

Versus

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

H.K.GARG & CO

16 Apr 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :16.04.2019

Date of Decision : 24.04.2019

COMPLAINT NO.610/2016

In the matter of:

 

1. Sonia Chhokra,

W/o. Shri Sanjay Chhokra.

 

2. Sanjay Chhokra,

S/o. Late Shri R.l. Chhokra

 

Both R/o.

201, Ganga Nagar, Rishikesh,

•  

 

Earlier at:

D-63 Chhatarpur Enclave,

Phase-I, New Delhi-110074.………Complainants

 

 

Versus

 

M/s. Unitech Ltd..

Through its Chairman,

Regd. Office 6 Community Centre,

Saket, New Delhi-110017.

 

Also at UGCC Pavillion,

Sector-96 Express Way,

(Near Amity Management School),

Noida-201305 (U.P.)…Opposite Party

CORAM

Hon’ble 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

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that they applied for residential apartment bearing no.102 on first floor in Tower-H-2 measuring 1244 sq. ft in Group Housing Project of OP known as Unihomes – ii, Sector-117, Noida, Uttar Pradesh. They paid Rs.4 lakhs vide cheque dated 01.12.12 drawn on SBI Mehrauli, New Delhi. OP made provisional allotment for total consideration of Rs.48,23,184/- payable as per construction linked plan. As per clause 16 of the application, OP agreed to complete the construction and offer possession within 36 months from the date of application.
2. On the same day the OP unilaterally enhanced cost of the flat from Rs.48,23,184/- to Rs.49,35,144/- by levying Rs.62,200/- as interest free maintenance security and Rs.49,760/- on account of electric sub-station charges.
3. The complainants made payments by cheque as per details mentioned in para-7 of the complaint. On receiving letter dated 23.08.13, the complainants visited the site and were shocked  to see that there was no  construction. Still the complainants paid Rs.6,76,035/- against receipt dated 19.10.13. They paid Rs.39,000/- toward interest vide receipt dated 25.07.14. In all the complainants have paid Rs.20,49,346/-.
4. On 22.06.15 the complainants again visited the site and were appalled and to see that there was no construction. Thus it was beyond expectation that construction could be completed by December, 2015. The complainants wrote letter to refund the amount. The complainant were paying interest on the loan amount taken by them from Uco Bank, Nizamuddin.
5. In response to letter dated 22.06.15, OP requested complainants to swap the apartment with an apartment in other project “Unitech Verve in Phase-II”, Greater Noida vide letter dated 07.08.15. Initially complainants accepted the said offer provided OP was to complete the same and offer possession by March-April, 2016. In October, 2015 the complainants visited site of alternative booking and were dismayed to see that there was no work/ construction. Vide mail dated 27.10.15 OP intimated the complainants that they would offer the flat in 4^th quarter of 2016. The same was not accepted by the complainants. The complainants served demand notice dated 12.01.16 requesting OP to refund the amount with interest and damages. Hence this complaint for directing OP to refund Rs.20,49,346/- with interest @18% per annum  from date of payment till the date of refund, Rs.5 lakhs as damages for mental harassment, agony and inconvenience.
6. The OP was served for 12.01.17. It put in appearance, copy of complaint was supplied. It was directed to file WS within 8 weeks. It failed to do the needful and its right to file WS was closed.
7. In their evidence the complainants filed their joint affidavit. Complainants have also filed written arguments.
8. OP also filed written arguments and stated that it could take legal pleas without there being WS.
9. I have gone through the material on record and heard the arguments. The plea of the OP is that possession expected to be delivered within 36 months was subject to force majeure circumstance or other similar circumstances beyond the control  of OP. The agreement provided that in case of delay in handing over possession, OP was to pay charges @5 per sq. ft. per month of super area. More than 500 writ petition were filed before High Court of Allahabad by farmers challenging notification of acquisition of land. The OP faced major disruption in doing construction due to strike by farmers whose land was acquired. The OP has also taken an objection of arbitration clause.
10. The plea of force majeure is usual plea taken by builder and seldom accepted by Consumer Foras. It is not an Omni Bus Defence. Similarly provision for  penalty for delayed possession can be a defence for a limited reasonable period. It can not be availed for indefinite period. Payment of penalty of Rs.5 per sq. fit. Per month amounts to interest @3% per annum approx. which is meagre.
11. The counsel for the complainants relied upon decision of National Commission in Pinki Saini vs. Imperia Structure Ltd. III (2018) CPJ 609. In the said case it was held that event of demonetisation, non availability of contractual labour delay in notifying approvals can not be construed to be force majeure events. The developer was directed to refund the amount alongwith interest @9% per annum and Rs.50,000/- as cost.
12. In view of the above discussion the complaint is allowed and OP is directed to refund Rs.20,49,346/- interest @10% per annum from the date of respective payment till the date of refund. Order to be complied within 45 days from the receipt of copy of this order.
13. Copy of the order be sent to both the parties free of cost.
14. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)