CC 215 of 2016 This Consumer Complaint has been filed by the complainants Rohit Palaria & Anr.against the Opposite party M/s. Unitech Ltd. 2. Brief facts of the case are that in the year 2010-2011, the opposite party launched a housing project by the name of Espace Premiere in Unitech Nirvana Country-II, Sector -71 & 72, Gurgaon. On 08.02.2011, original buyers booked a villa being villa No.0075 in Block B in the said project, Espace Premiere in Unitech Nirvana Country-II, Sector 71 & 72, Gurgaon, of the opposite party. On 25.02.2013, buyer’s agreement for allotment of the villa being villa No.0075 in Block B in Espace Premiere in the said project was entered into between the original buyers and the opposite party for a total consideration of Rs.2,13,20,104/-. On 23.04.2013, the complainants entered into an agreement of purchase with the original buyers to purchase the said villa. On 13.06.2013, opposite party endorsed the buyer’s agreement dated 25.02.2013 in favour of the complainants. 25.02.2015 was the stipulated due date of handing over of the possession of the said villa by the opposite party to the complainants, as per the terms of the buyer’s agreement. However, the said villa was not handed over on the date. During the period 2013-2016, the complainants made payments, from time to time, to the opposite party as per the payment schedule provided in the buyer’s agreement of 25.02.2013. The complainants have already made a total payment of Rs.1,56,95,902/- to the opposite party, including the payments made by the original buyers to the opposite party. In the year 2016, the complainants made enquires on the status of the construction of the villa, however, evasive replies were given by the opposite party to the complainants herein. Admittedly, till date the construction of the villa has not been completed by the opposite party and therefore, possession of the same is not yet handed over by the opposite party to the complainants herein. 3. Hence this complaint with the following prayers:- “I. Direct the opposite party to handover the possession of the villa being villa No.0075, Block B, Espace Premier, Nirvana Country 2, Sector 71 and Sector 72, Gurgaon, Haryana, complete in all respects immediately and with all amenities and facilities as agreed to by the opposite party in its brochure as well as in the buyer’s agreement dated 25.02.2013, being subsequently endorsed in favour of the complainants vide letter dated 13.06.2013 to the complainants, and execute all the necessary and required documents including but not limited to the Sale Deed of the Villa in favour of the complainant’s herein;” II Direct the opposite party to pay interest @12% per annum on the sum of Rs.1,56,95,902/- being the amount deposited by the complainants with the opposite party, with effect from 24 months from the date of the buyer’s agreement dated 25.02.2013 (i.e. from 25.02.2015), along with interest @12% per annum on any future payment made by the complainants to the opposite party as part of the sale consideration from the date of the said payment, till the date of the actual delivery of the possession of the villa complete in all respects and with all amenities and facilities as agreed to by the opposite party in its brochure as well as in the buyer’s agreement dated 25.02.2013; III. Declare and hold that the increase in Service Tax with effect 01.06.2015 should be borne by the opposite party in the payments towards the balance sale consideration which will be made by the complainant’s to the opposite party herein; IV. Direct the opposite party to pay a sum of Rs.5,00,000/- (Rs.five lac only) to the complainants towards the cost of litigation; and v. Pass any other or further relief in favour of the complainants and against the opposite party, which this Hon’ble Commission may deem fit, just and proper in the facts and circumstances of the case.” CC 216 of 2016 4. This Consumer Complaint has been filed by the complainants Dr. Anil Kumar Gupta & Anr. against the Opposite party M/s. Unitech Ltd. 5. Brief facts of the case are that in the year 2010-2011, the opposite party launched a housing project by the name of Espace Premiere in Unitech Nirvana Country-II, Sector -71 & 72, Gurgaon. On 08.03.2011, original buyers booked a villa being villa No.0085 in Block B in the said project, Espace Premiere in Unitech Nirvana Country-II, Sector 71 & 72, Gurgaon, of the opposite party. On 06.04.2011, buyer’s agreement for allotment of the villa being villa No.0085 in Block B in Espace Premiere in the said project was entered into between the original buyers and the opposite party for a total consideration of Rs.2,48,45,104/-. 06.04.2013 was the stipulated due date for handing over of the possession of the said villa by the opposite party to the complainants, as per the terms of the buyer’s agreement. However, the said villa was not handed over on the date. On 12.11.2013, the complainants entered into an agreement of purchase with the original buyers to purchase the said villa. On 25.11.2013, opposite party endorsed the buyer’s agreement dated 06.04.2011 in favour of the complainants. During the period 2013-2016, the complainants made payments, from time to time to the opposite party as per the payment schedule provided in the buyer’s agreement of 06.04.2011. The complainants have already made a total payment of Rs.1,81,60,310/- to the opposite party, including the payments made by the original buyers to the opposite party. In the year 2016, the complainants made enquires on the status of the construction of the villa, however, evasive replies were given by the opposite party to the complainants herein. Admittedly, till date the construction of the villa has not been completed by the opposite party and therefore, possession of the same is not yet handed over by the opposite party to the complainants herein. 6. Hence, this complaint with the following prayers:- “I. Direct the opposite party to handover the possession of the villa being villa No.0085, Block B, Espace Premier, Nirvana Country 2, Sector 71 and Sector 72, Gurgaon, Haryana, complete in all respects immediately and with all amenities and facilities as agreed to by the opposite party in its brochure as well as in the buyer’s agreement dated 06.04.2011, being subsequently endorsed in favour of the complainants vide letter dated 25.11.2013 to the complainants, and execute all the necessary and required documents including but not limited to the Sale Deed of the Villa in favour of the complainant’s herein;” II Direct the opposite party to pay interest @12% per annum on the sum of Rs.1,81,60,310/- being the amount deposited by the complainants with the opposite party, with effect from 24 months from the date of the buyer’s agreement dated 06.04.2011 (i.e. from 06.04.2013), along with interest @12% per annum on any future payment made by the complainants to the opposite party as part of the sale consideration from the date of the said payment, till the date of the actual delivery of the possession of the villa complete in all respects and with all amenities and facilities as agreed to by the opposite party in its brochure as well as in the buyer’s agreement dated 06.04.2011; III. Declare and hold that the increase in Service Tax with effect 01.06.2015 should be borne by the opposite party in the payments towards the balance sale consideration which will be made by the complainant’s to the opposite party herein; IV. Direct the opposite party to pay a sum of Rs.5,00,000/- (Rs.five lac only) to the complainants towards the cost of litigation; and v. Pass any other or further relief in favour of the complainants and against the opposite party, which this Hon’ble Commission may deem fit, just and proper in the facts and circumstances of the case.” 7. As both the complaints are against the same opposite party and for granting possession of allotted villas in the same project as well as the facts are similar, so both the complaint are being decided together. The discussion will be limited to the complaint case No.215 of 2016 taking facts of this complaint case. 8. Notice was issued to the opposite party who did not file any written version. Hence their opportunity to file written version was closed vide order dated 17.8.2016. Later on, though some counsel filed vakalatnama on behalf of the opposite party, but opposite party was ultimately proceeded ex-parte on 04.04.2018. The complainants filed their evidence in support of the complaints by way of affidavits. 9. Heard the learned counsel for the complainants and perused the record. The learned counsel stated that as there has been delay in giving possession, therefore, the complainants are entitled to interest on the amount paid by the complainants. Learned counsel referred to the judgment of this Commission in CC No.603 of 2014, Capt. Gurtaj Singh Sahni & Anr. Vs. Manager, Unitech Limited & Anr. decided on 02.05.2016 (NC), wherein this Commission has allowed interest @12% per annum from the accepted due date of possession till the date on which the possession is actually offered to the complainants. 10. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the complainants and examined the record. Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 has clearly laid down that the compensation in the form of interest has to be lower when the possession is being granted to the complainants because the value of the property itself increases, which partly compensates for the loss to the complainants. As there is no written statement filed by the opposite party and none appeared on the date of hearing from the side of the opposite party, this Commission is relying on the evidence filed by the complainants. As per the complainants, total consideration of the villa was Rs.2,13,20,104/- and the complainants have paid a total sum of Rs.1,56,95,902/- between 2013-2016. 11. It is seen that the judgment relied upon by the learned counsel for the complainants is of 2016 and since then the interest scenario has drastically changed and there is a steep decline in the interest rates. This commission in CC No.1434 of 2015, Vikash Podadar & anr. Vs. M/s. Bengal Unitech Universal, decided on 14.03.2018 (NC) has allowed interest @ 6% p.a. on the amount deposited by the complainant from the due date of possession till the date of actual possession. 12. It is seen from the clause 4.e. of the builder –buyer’s agreement that if the opposite party is not able to give the possession of the agreed property and if the opposite party is also not able to give any other property similar to the agreed one, the opposite party shall refund the entire paid amount along with simple interest of 10% p.a. 13. Based on the above discussion, the following orders are passed:- CC No.215 of 2016 & CC No.216 of 2016 ORDER The complaints are partly allowed and the OP is directed as under: i) Complete the construction work and handover the physical possession of the villa complete in all respects as per agreement till 30th September, 2019 after obtaining occupancy certificate subject to the complainants paying the balance amount as per the agreement to the opposite party along with 10% p.a. interest from the date when the payment was due till actual payment. ii) The OP shall pay interest @ 6% p.a. on the deposited amount by the complainants till the due date of possession from the due date of possession till the actual date of possession over and above the charges admissible for delay in possession @ Rs.50/- per sq. yard per month. For the amounts paid after the due date of possession, the interest shall be payable from the date of completion of one year from the date of deposit till the date of physical possession. The receivables regarding interest and the delay charges @ Rs.50/- per sq. yard per month shall be adjusted at the time of possession before any due amount is taken from the complainants by the OP. iii) If the possession is not delivered till 30.9.2019, the complainants shall be atliberty to take refund of the total deposited amount (Rs.1,56,95,902/- in CC No. 215 of 2016 and Rs.1,81,60,310/- in CC No.216 of 2016) alongwith interest @ 10% p.a. from the date of respective deposits till actual payment. OP shall be liable to pay the same within a period of six weeks after receiving the request letter from the complainants. If the complainants do not ask for refund, they shall be entitled to get interest @ 6% p.a. as already ordered till possession is handed over. iv) The opposite party shall also pay litigation cost of Rs.10,000/- to the complainants in each complaint. |
