Delhi

StateCommission

CC/299/2014

MR. SUBODH KUMAR - Complainant(s)

Versus

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

26 Apr 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 26.04.2019

Date of Decision : 01.05.2019

COMPLAINT NO.299/2014

In the matter of:

 

Mr. Subodh Kumar,

son of Shri Raghubir Prasad Sah,

R/o. 53/1, 3^rd Floor,

Ashok Nagar, Tilak Nagar,

Rajouri Garden West,

•  

 

Versus

 

1. Unitech Ltd.,

Regd. Office:

6 Community centre,

Saket, new Delhi-110017.                            

 

2. Shri Ramesh Chandra,

Executive Chairman,

Unitech Limited,

Regd. Office at

6 Community Centre,

Saket, New Delhi-110017.

 

3. Shri Sanjay Chandra,

Managing Director,

Unitech Limited,

Regd. Office at

6 Community Centre,

Saket, New Delhi-110017.

 

4. Shri Ajay Chandra,

Managing Director,

Unitech Limited,

Regd. Office at

6 Community Centre,

Saket, New Delhi-110017.……..Opposite Parties

 

 

 

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 OP-1 launched a Group Housing Complex names “Unihomes PH-II” at Plot No.GHP-001, Sector-117, Noida, UP. The same was to be completed within 24 months. He booked apartment no.108, Tower F-2 having a super area of 766 sq. ft. on 13.02.10. The Price was fixed at Rs.25,08,706/- inclusive of lease rent, PLC and car parking. He has paid Rs.23,29,568/-. Agreement was executed on 26.02.10 as per  clause 5 (a) (i). The OP was to hand over possession within 24 months.
2. OP deliberately avoided/ delayed handing over possession on one or other pretext. As per clause 5 (c) (ii) of agreement the OP was liable to pay charges @Rs.5/- per sq. ft., per month of the super area for the period of delay in offering the possession. The complainant sent legal notice dated 17.05.14. Complainant booked the flat while paying hefty EMIs. Copy of home loan agreement dated 29.06.10 is Annexure-F. Hence this complaint for directing OP to hand over possession and execute all the necessary documents. He has also prayed for interest @18% per annum compounded quarterly on the amount deposited from the date of respective payments till the handing over of possession. He has also sought Rs.5 lakhs as damages for physical and mental torture, agony, discomfort and undue hardship. Cost of litigation amounting to Rs.7,000/- have been prayed.
3. The OP filed WS raising preliminary objections that clause 5(a)(i) of the agreement stated that possession was expected to be delivered within 24 months subject to force majeure  circumstances or other similar circumstances beyond the control of the OP. Clause 9 (a) provided  that if possession is delayed due to non availability of construction material or adequate water supply or electric power back up, or on account of any disputes with or disruption or discontinuance of service by any agent, contractor, consultant or workers engaged by the OP in relation to construction and development of the complex or on account of civil commotion or war or criminal action or earthquake, flood or any act of God or on account of delay in taking certain decisions or providing any approvals by any Governmental Authority or as a result of any notice, order, rule or notification of any Governmental Authority, the OP was entitled to reasonable extension of time in the agreed date for delivery of possession. In view of agreement to pay penalty  @Rs.5/- per sq. ft. per month, claim of interest of 18% is not maintainable. Due to filing of more than 500 writ petition before High Court of Allahabad by farmers of various villages challenging acquisition of land the construction could not be raised. There was strike by formers whose lands were acquired by Noida. The same was completely unforeseen. The parties are bound by the terms of agreement. OP had deliberate or malafide intention not to hand over possession. On merits the OP took same defence. The WS was directed to be taken of the record vide order dated 17.02.16 as the same was beyond statutory period of 30 days.
4. The complainant filed his own affidavit in evidence.
5. The counsel for OP filed written arguments. He submitted that he can argue legal point even after striking of the WS. The written arguments are based on same plea as taken in WS.
6. I have gone through the material on record and heard the arguments. The plea of force majeure is not an Omni Bus defence which can be taken by the OP. Similar plea has been rejected by NC in Saurabh Sood vs. Unitech Ltd. III (2018) CPJ 645.
7. More over even as per agreement the OP was entitled to reasonable extension and not perpetual extension, even in case of circumstances beyond its control. A person who booked the flat in 2010 can not be expected to wait beyond 2019 even.
8. The booking of flat by complainant, payment by the complainant are not disputed by the OP. However since that’s have not been constructed, only option left is to refund. Hence OP-1 is directed to refund the amount Rs.23,29,568/- with interest @10% per annum from the date of respective payments till the date of refund subject to complainant furnishing NOC from Financer. OP-1 will also pay cost of Rs.10,000/- as litigation. Order to be complied within 45 days from the receipt of copy of complaint.
9. Copy of the order be sent to both the parties free of cost.
10. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)