Delhi

StateCommission

CC/1218/2016

VIKAS ANAND - Complainant(s)

Versus

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

LALIT BAHL

13 Dec 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision:13.12.2018

 

Complaint Case No.1218/2016

 

 

Shri Vikas Anand,

S/o Shri S.P. Anand,

B-1/65, Janakpuri,

New Delhi -110058.

Through SPA

Shri Ashish Anand.

…. Complainant

 

Versus

 

Unitech Limited,

Having its registered office at

6, Community Centre,

Saket, New Delhi-110 017.

 … Opposite Party

 

CORAM

Justice Veena Birbal, President

 

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

  

2. To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. Complainant booked an apartment No.1101 in Tower No.02, on 11^th Floor having super area of 1537 sq. ft. in Group Housing Scheme of the OP called ‘Unitech Cascades’ situated at Plot No.8, Sector Pi-II, Greater Noida, Gautam Budh Nagar, Uttar Pradesh vide application dated 25.08.2005. Complainant had deposited Rs.3,00,867/- by way of cheque No.811302 dated 23.08.2005 against the said apartment for booking amount and receipt was also issued in favour of the complainant. Thereupon, OP had demanded Rs.26,00,000/- from the complainant which was also paid by way of cheque No.811303 dated 05.09.2005 to the OP and the same was also acknowledged by the OP by issuing receipt No.00031 dated 20.09.2005 to the complainant.  Complainant  had further deposited Rs.1,64,245/- by way of cheque No.854309 dated 05.09.2005for which also OP had issued receipt to the complainant. It is stated that in all complainant had paid Rs.30,65,112/- to OP by way of cheques as has been stated above. The agreed cost of the unit in question is Rs.32,00,547/-  out of which complainant has paid 95% to the OP. An allotment letter/agreement of the aforesaid apartment was issued in favour of the complainant on 23.11.2005. As part allotment letter possession of the apartment was to be given by 31.03.2008. Complainant waited for the apartment but no offer was made to him by the OP. After 31.03.2008, complainant sent emails to the OP about possession of the unit in question but no favourable response was received. OP only stated that he will be duly compensated as clause 4C9ii) of the allotment letter. It is stated that OP has retained hard earned money of the complainant and has not delivered the possession of the apartment to the complainant nor has refunded the amount. By way of  present complaint, complainant has prayed for refund of amount with interest @18% per annum from the date of payment till realization and compensation is also prayed.
2. Notice of the complaint was issued to the OP. OP was served with the notice. OP had put in appearance on 30.05.2017 but did not file written statetment. Defence of the OP was struck down vide order dated 16.11.2017. The aforesaid order has not been challenged by the OP.
3. In support of his case, attorney of the complainant has filed evidence by way of his affidavit alongwith the written arguments. Complainant in his affidavit has reiterated the contents of complaint case on oath.  He has proved on record power of attorney given by the complainant in his favour i.e. Ex. CW -1/1, payment receipt dated 25.08.2005 for Rs.3,00,867/- i.e. Ex. CW -1/2, payment receipt dated 20.09.2005 for Rs.26,00,000/- i.e. Ex. CW -1/3, payment receipt dated 20.09.2005 for Rs.1,64,245/- i.e. Ex. CW -1/4, Allotment letter dated 23.11.2005 i.e.  Exb. CW -1/5. He has also proved on record copy of payment schedule dated 25.08.2005 and other documents of the apartment in question i.e. Ex-CW-1/6(Colly), copy of letters sent through email and reply received from the OP i.e. Ex-CW-1/7 (Colly). He has deposed about the amount paid to OP i.e. Rs.30,65,112/- and has deposed that same 95% of the agreed sale consideration. He has also deposed that possession of the flat was to be handed over  by 31.03.2008.  Complainant has stated on oath that delay in handing over the possession is an unfair trade practice on the part of OP.  He has further stated in the affidavit that the complaint be allowed and relief prayed be granted.
4. There is no evidence on behalf of OP as their right to file written statement was closed vide order dated 16.11.2017.
5. From the un-rebutted evidence, it stands proved that vide Allotment letter dated 23.11.2005 Ex. CW -1/5 OP had allotted Apartment No.1101 on 11^th Floor, Tower -02 having a super area of approx 1537 sq. ft. in Unitech Cascade, Plot No.8, Sector –Pi-II, Greater Noida for a total consideration of Rs.32,00,547/-. Complainant has proved that vide receipts Ex. CW -1/2 to Ex. CW -1/4 OP has received in all Rs.30,65,112/- for the apartment in question but has failed to deliver the possession of the said apartment to complainant as per terms and conditions of the Allotment Letter Ex. CW -1/5. A substantial period of 10 years has already elapsed from the agreed date of possession. One is not expected to wait indefinitely.
6. In the present case, from the un-rebutted evidence it is proved that as per allotment letter dated 23.11.2005, the possession was to be handed over by 31.03.2008 subject to force majeure and as noted above there is defence of the OP as to why possession has not been delivered. OP has received Rs.30,65,112/- from the complainant. Having received a substantial amount, OP has not completed the construction.  In the absence of any evidence or explanation, failure to comply with the stipulation of delivery of possession in the allotment letter, in my view it stands established that OP has committed deficiency in service and has also indulged in unfair trade practice. 
7. As regards the compensation, ld. Counsel for OP has referred to Clause 4C(ii) of the allotment letter between the parties i.e. Exb. CW-1/5, which deals with compensation to be paid if OP is not in a position to offer possession of Apartment to Allottee.  The relevant clause is reproduced as under:

 

“That the Company would pay charges @Rs.5/- per sq. ft. of super area per month for the period of delay in offering delivery of the said apartment beyond the period indicated in clause 4.a(i). Save and except as for reasons beyond the reasonable control of the company and Force Majeure events. These charges would be adjusted at the time of final notice for possession.”

 

8. In view of above discussion, the complaint is allowed and OP is directed to refund the entire amount of Rs.30,65,112/- paid to it by the complainant within 8 weeks from today along with compensation in the form of interest on the aforesaid amount @ 10% p.a. from the date of each payment till the payment of entire amount. The OP shall also pay a sum of Rs.25,000/- as cost of litigation to complainants.
9. A copy of this order as per statutory requirements be sent to the parties free of charge.  Thereafter the file be consigned to record room.

 

 

 

(Justice Veena Birbal)

President