Delhi

StateCommission

CC/1131/2016

SURHID BHANDARI - Complainant(s)

Versus

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

AMIT SETH

09 Aug 2019

ORDER

 

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 09.08.2019

Complaint Case No. 1131/2016

In the matter of:

Surhid Bhandari

37, Bungalow Road

Kamla Nagar

New Delhi-110007                                                        ….....Complainant

 

Versus

 

M/s. Unitech Ltd.

Registered Office:6, Community Centre

Saket,

New Delhi-110017                                                          …..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 applied for allotment of apartment in the project named as “The Residences”, developed by OP. Complainant was allotted Unit No. 202, 2^nd Floor, Tower C-1, admeasuring 1980 sq. ft. along with car parking with a total sum of Rs.78,28,400/- . The complainant opted for construction linked installment plan vide his application dated 19.01.2012. Along with application for allotment, the complainant remitted as sum of Rs.7,30,140/- dated 19.01.2012. The Flat Buyer’s Agreement (in short the ‘Agreement’) was executed between the parties on­­­ 14.03.2012. In view of the Flat Buyer Agreement OP was supposed to handover the possession of the flat to the complainant within 36 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 the March, 2015. Complainant again deposited a further sum of Rs.8,93,935/- dated 06.03.2012 as demanded by OP. Thereafter OP raised a demand letter dated 17.04.2012 for payment of Rs.9,00,660/- which was duly deposited by the complainant on 30.04.2012. On 29.01.2013 OP again raised a demand of Rs.8,34,317/- vide letter dated 11.02.2013 on the ground of commencement of construction which was duly paid by the complainant. It is stated by the complainant that since January, 2013 complainant did not receive any communication or intimation from the OP regarding the progress of the said project which apparently was not even started by the OP despite promises made to the complainant. It is alleged that thereafter complainant visited the registered office of OP seeking update on the progress of the project, but did not get any response. It is alleged that despite numerous visits at the registered office of OP and not getting any clue of the progress of the aforesaid project the complainant completely disheartened. It is alleged that complainant has paid Rs.33,59,052/- to the OP till January, 2013 and OP played a deliberate fraud upon him by misrepresenting and giving false assurances about launching of their real estate project. Aggrieved by the behavior of OP complainant sent a legal notice dated 02.05.2006 to the OP, which was neither replied nor money deposited by complainant was refunded.
3. Alleging deficiency in service on the part of OP, complainant has filed the present complaint with the following prayers:-

1. Direct the OP to refund the entire amount deposited by the complainant, amounting to Rs.33,59,052/-.
2. Grant a sum of Rs.10,12,310/- to the complainant towards interest @18% (per annum compounded quarterly) for the entire payment made by him in respect of the said flat (calculated up till 01.09.2016), along with future and pendent lite interest @18% (per annum compounded quarterly) till the date of actual realization of payment.
3. Grant a sum of Rs.9,00,000/- to the complainant as compensation and/or exemplary damages for the mental and physical harassment, agony, torture, undue harships and sheer suffering.
4. Grant a sum of Rs.2,00,000/- to the complainant towards cost of litigation.
5. Direct the OP to pay damages to the complainant to the tune of Rs.20,000/- per month along with compound interest @18% per annum quarterly for causing the delay in delivery of flat in question to the complainant since the day booking of flat till the date of its realization.

 

4. Notice of the complaint was issued to the OP. AR of the OP appeared and received copy of the complaint on 22.03.2017, but failed to file written statement within the prescribed period and the right of OP to file written statement was closed on 14.09.2017. 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. Surhid Bhandari, 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 consumer complaint bearing CC No.1131 of 2016, Ex.CW1/1; Copy of application dated 19.01.2012, Ex.CW1/2; Allotment letter dated 23.02.2012 as well as Agreement dated 31.01.2012/14.03.2012, Ex.CW1/3(Colly); Demand letters dated 31.01.2012, 17.04.2012 and 29.01.2013, EX.CW1/4(Colly); receipts dated 31.01.2012. 06.03.2012 and 05.02.2013, Ex.CW-1/5(Colly); legal notice dated 02.05.2016, Ex.CW1/6.
7. Arguments of the complainant are heard and material on record is perused.
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 about 07 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. In terms of clause 5 of the Allotment letter the possession of the flat was to be delivered within 36 months subject to force majeure circumstances.
9. In the absence of any evidence/explanation for failure of the OP 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.33,59,052/- from the complainant in the year of 2013 and has committed deficiency in service and also indulged in unfair trade practice.
10. Clause d of the Allotment Letter deals with the inability of the OP in case they are unable to offer possession. Clause d is reproduced as under:
    •  

“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.”

 

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 liable 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.33,59,052/- paid by the complainant within forty five days from the date of receipt of the order alongwith simple interest @10% from the date of each deposit till realization.

 

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

 

(Salma Noor)

Presiding Member