Delhi

StateCommission

CC/563/2014

SH. VIKAS KAUSHAL - Complainant(s)

Versus

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

22 Nov 2016

ORDER

IN THE STATE COMMISSION : DELHI

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

 

                                                Date of Arguments: 22.11.16  

Date of Decision:     02.12.16 

Complaint No. 563/14

In the matter of:

 

Shri Vikas Kaushal

S/o Late Shri S.K.Kaushal

Resident of House No. 987

Sector 22B, Gurgaon

Haryana-122001                                                       Complainant

                                                                

                                              Vs.

 

M/s Unitech Limited

Registered Office at

6, Community Centre,

Saket,

New Delhi-110017

 

Service to be effected through

Managing Director/Director Incharge

Company Secretary/Authorised Officer

 

 

IInd Address:

 

 

M/s Unitech Limited

Marketing Ofice at

5^th Floor, Signature Towers

South City-1

Haryana

Service to be effected through

Managing Director/Director Incharge/

Company Secretary/Authorised Officer                  Opposite parties

 

 

^{O.P. Gupta, Member (Judicial)}

 

^{1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes}

 

2.  ^{To be referred to the reporter or not? Yes}

 

                                   JUDGEMENT

       The case set up by the complainant is that he booked a residential flat in “Fresco Tower 14” Gurgaon of OP.  Later on OP persuaded complainant to change booking in another upcoming project ‘Anthea Floors’ at Wildflower Country’ Gurgaon. Complainant paid booking amount of Rs. 15,80,000/-. OP issued allotment letter dated 02.11.12 in respect of Flat No. F-00-0059 vide letter exhibit CW-1/5 for total sale consideration of Rs. 1,57,46,513/-.  Buyer agreement dated 30.11.12 was executed.  Clause IV E provided that if developer was unable to offer the allotted flat he will refund amount paid by purchaser in full with simple interest @ 12% per annum from the date of payment by the purchaser.  The complainant took loan of Rs. 1,26,77,000/- from HDFC bank.  The possession was to be given in 36 months but construction has not commenced even.  The OP called upon the complainant to pay Rs. 8,52,917/- vide reminder dated 28.01.13.  By 01.02.13 the complainant had paid Rs. 48,65,049/-.The complainant further paid Rs. 2,95,335/- vide receipt dated 08.02.13 making the total  Rs. 51,60,383/-.He sent letter dated 23.05.13 to cancel the flat and for refund of booking amount.  OP threatened to deduct 20% of the contract value. It sent letter dated 07.02.14 demanding interest of Rs. 59,228/-.He sent reminder dated 11.03.14 alleging that Rs. 17,30,584/- was overdue and threatened to cancel the booking.  Hence this complaint for refund of Rs. 51,60,383/- with interest @ 18% per annum and compensation of Rs. 25,00,000/-.

2.    OP filed WS pleading that it was made clear that in case handing over of possession was delayed for reasons of forced majeure or circumstances beyond control of developers, developer shall be entitled to reasonable extension of time.  It was also made clear that in case possession is delayed for any other reason, purchaser shall be entitled to penalty of Rs. 5/- per sq. ft. per month by way of adjustment at the time of final payment.  In case developer was not able to give property, it might offer alternative property without any other compensation. The project faced various road blockages and hindrance including approval from different authorities which was not in control of OP.  Real estate industry was in a cyclical nature which was affected by both local and national economical condition and the delay was directly attributable to recession in economy.  Due to common wealth games organised in Delhi in October 2010 construction of several big projects started which led to extreme shortage of labour.   Due to implementation of National Rural Employment Guarantee Act and Jawahar Lal Nehru National Urban Renewal Mission there was sudden shortage of labour. Ministry of Environment and Forest and Ministry of Mines created certain restrictions which resulted in drastic reduction in availability of bricks and kiln. It also took plea of arbitration clause.  It cited some decision to show a person who books more than one flat is not a consumer but there is no pleading as to which other flat the complainant has booked.

3.    Complainant filed rejoinder and evidence by affidavit.

4.    OP failed to file evidence by affidavit and its right to file the same was closed vide order dated 10.08.16.  The complainant has filed written arguments. 

5.    I have gone through the material on record and heard the arguments. The plea of arbitration is not tenable as remedy under the Consumer Protection Act is in addition to and not in derogation of other remedy as per decision of National Commission in Satish Pandey vs. Unitech III(2015) CPJ 40.

6.    Plea of forced majeure is not tenable as per decision of National Commission in Santosh Johri vs. Unitech III(2015) CPJ 440.

7.    The agreement provides for refund with interest of 12% per annum.  The parties are bound agreement.  Accordingly OP is directed to refund Rs. 51,60,383/- with interest @ 12% per annum from the date of deposit till the date of refund.

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

(O.P.GUPTA)

MEMBER(JUDICIAL)