These consumer complaints have been filed by different allottees of flats in project Unitech South Park of the opposite party. As the issues involved and relief claimed in these complaints are similar, they are being decided together. Consumer Complaint No.758 of 2015 is taken as lead complaint case. However, details of these cases are as under:- Table-1 CC Number | Flat Number and date of booking | Date of BBA | Due Date of possession | Amount Paid | Total Cost | CC/758/2015 | 302 Third Floor Block A-2 30/03/2011 | 30.3.2011 | 29.3.2014 | 30,49,453 | 1,08,42,400 | CC/759/2015 | 0101 First Floor Block B-2 31/03/2011 | 23.5.2011 | 22.5.2014 | 29,86,911 | 1,07,82,801 | CC/775/2015 | 603 Block –B1 6th floor 06/09/2011 | 16.9.2011 | 15.9.2014 | 99,51,681 | 1,12,63,001 | CC/776/2015 | 703 Block C-1 7th floor 28/03/2012 | 28.3.2012 | 27.3.2015 | 46,97,237 | 1,16,75,822 | CC/780/2015 | 0101 Block A-1 1st floor 25/03/2011 | 23.7.2011 | 22.7.2014 | 91,43,48 | 1,10,43,426 | CC/781/2015 | 1204 12th Floor Block A-4 24/03/2011 | 17.5.2011 | 16.5.2014 | 29,52,049 | 1,01,12,745 |
2. The possession has not been delivered to the complainant so far. In this context, the complaint has been filed with the following prayers:- “A. Direct the Respondent to hand over the possession of the aforesaid apartment complete in all respects to the complainant immediately as per the Buyers Agreement and execute all the necessary and documents in respect of the said apartment in favour of the complainants or in alternative pay a sum of Rs.1,60,00000/- (Rupees One Crore Sixty Lakhs Only), being the available market rate of the similar house @Rs.10000/- per sq.ft. the apartment being of the size 1600 sq.ft. to enable the complainant to purchase another house on their own. B. If this Hon’ble Commission comes to an opinion that the Relief sought in Clause A cannot be granted in such circumstances to direct the Respondent to pay @18% interest calculated on compounded rate from the date of payment of the money on the entire sum paid by the complainants to the O.P. towards the flat. C. Direct the O.P. to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) to the complainant towards the cost of litigation. D. Any other order(s) as may be deemed fit and appropriate may also kindly be passed.” 3. The opposite party resisted the complaint by filing the written statement. It has been stated that the project is in semi-finished state and possession is being offered on “as is where is basis”. Many allottees have taken possession at this stage and opposite party is ready to give possession to the complainants on this basis. Otherwise, the company will refund the amounts paid as per provision of Clause 4. e of the builder-buyer agreement. 4. Both the parties filed their evidence in support of their pleadings. 5. Heard the learned counsel for the parties and perused the record. Learned counsel for the complainants stated that Clause 4.e of the builder –buyer agreement clearly mentioned the following:- “4.e. Default: If for any reason the Developer is not in a position to offer the allotted Apartment, as agreed herein, the Developer will offer the Apartment Allottee(s) an alternative property in any complex developed, underdevelopment or proposed to be develop in the surrounding are/projects and if no alternate property is available will refund the amount paid by the Apartment Allottee(s) in full with interest @10% per annum from the date of payment(s) by the Apartment Allottee(s) without any further liability to pay any damages, charges or compensation.” 6. It was argued by the learned counsel for the complainants that no alternate property has been offered to the complainants. Moreover, there is no justification for refunding the amount only with 10% interest p.a. as the complainants have obtained the loan from bank on much higher rate. The complainants are requesting for refund of deposited amount with 18% p.a. interest because of deficiency on the part of the opposite party as the opposite party has failed in developing the project and thereby failed in handing over the flats in time to the complainants. Despite the promise made under Clause 4.e. of the builder-buyer agreement, the opposite party has not refunded the amount with 10% p.a. interest. The complainants are entitled for refund of the deposited amount along with 18% p.a. interest as compensation and cost of litigation. This Commission has awarded more interest on the amounts of refund even in the cases filed against the same opposite party. 7. On the other hand, learned counsel for the opposite party stated that for the same project this Commission has allowed the refund only with 10% p.a. interest as per Clause 4.e of the builder-buyer agreement, which is binding on both the parties. Moreover, the opposite party is ready to provide possession on “as is where is basis”. Many allottees have taken the possession in that project. It was further argued by the learned counsel for the opposite party that when the 10% interest p.a. was promised in the builder-buyer agreement, it was promised on the basis of then existing bank rate and interest rate in the market. Now, interest rates are on the decline and therefore, this declining trend may be kept in mind while deciding these complaints. In this regard, learned counsel referred to the judgment of this Commission in CC No.1904 of 2016, Ashok Mittal Vs. Unitech Ltd.,decided on 07.11.2017 (NC) wherein this Commission has allowed refund of the deposited amount along with 10% p.a. interest as follows:- “3. The learned counsel for the complainants state on instructions that in order to bring the litigation to a closure, the complainants are restricting their claim in these complaints to refund of the entire amount alongwith compensation in the form of interest @ 10% per annum in terms of clause 4.e of the Buyers Agreement. The complaints are therefore, disposed of with the following directions: (i) In CC No.1904 of 2016, the OP shall refund the amount of Rs.30,07,619/- to the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainants along with compensation in terms of this order is actually paid. (ii) In CC No.1905 of 2016, the OP shall refund the amount of Rs.45,55,033/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainant along with compensation in terms of this order is actually paid. (iii) In CC No.1906 of 2016, the OP shall refund the amount of Rs.36,62,970/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainant along with compensation in terms of this order is actually paid. (iv) In CC No.1907 of 2016, the OP shall refund the amount of Rs.35,47,769/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainant along with compensation in terms of this order is actually paid. (v) In CC No.1977 of 2016, the OP shall refund the amount of Rs.30,47,467/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainant along with compensation in terms of this order is actually paid. (vi) In CC No.1978 of 2016, the OP shall refund the amount of Rs.42,91,010/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainant along with compensation in terms of this order is actually paid. (vii) In CC No.465 of 2017, the OP shall refund the amount of Rs.52,83,948/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the entire amount payable to the complainant along with compensation in terms of this order is actually paid. (viii) The OP shall also pay Rs.25,000/- each as the cost of litigation in each complaint. (ix) The payment in terms of this order shall be made within three months from today.” |
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8. I have carefully considered the arguments advanced by both the parties and have examined the material on record. It is admitted by the opposite party that the project is not complete and opposite party is ready to offer the possession of the allotted flats on “as is where is basis” for which the complainants are not ready. They want possession with all amenities and fully constructed units as per the plan or refund in the alternative. It is also clear that the opposite party has not offered any alternate property to the complainants as per Clause 4.e of the agreement. Hence, as per provision of Clause 4.e of the builder-buyer agreement, the opposite party is liable to refund the deposited amounts to the complainants along with 10% p.a. interest from the date of respective deposits till actual payment. 9. Based on the above examination, the prayer of the complainants for refund is accepted. Accordingly, the opposite party is liable to pay 10% p.a. interest on the amount of refund as per the builder-buyers agreement. As the opposite party has not acted in compliance of Section 4.e of the agreement on its own, the complainants are entitled to compensation for mental agony and cost of litigation. 10. Based on the above discussion, the consumer complaint Nos.758 of 2015, 759 of 2015, 775 of 2015, 776 of 2015, 780 of 2015 & 781 of 2015 are allowed and the opposite party M/s. Unitech Ltd. is directed to refund the amounts paid/deposited by the complainants as given in Table-1 along with interest @10% p.a. from the date of respective deposits till actual payment. The opposite party is also directed to pay a compensation of Rs.50,000/-(rupees fifty thousand only) to the complainants in each complaint case and cost of litigation as Rs.5,000/- (rupees five thousand only) in each case. The order be complied with by the opposite party within a period of 60 days from the date of this order. |
