Haryana

StateCommission

CC/194/2016

POONAM ARORA - Complainant(s)

Versus

PARSHVNATH DEVELOPERS LTD. - Opp.Party(s)

R.C.SHARMA

12 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No      :     194 of 2016

Date of Institution:      10.03.2016

Date of Decision:        12.01.2017

1.     Vishal Setia

2.     Vikrant Setia

         both sons of Shri Satish Kumar Setia, Residents of House No.1415, Street No.8, Circular Road, Abohar, District Ferozepur, Punjab.

                                      Complainant

Versus

1.      Unitech Limited, through its Chairman/Managing Director 6, Community Centre, Saket, New Delhi-110017.

          IInd Address:

          Marketing Office, Real Estate Division (Marketing), 5^th Floor, Signatures Towers, South City-1, NH-8, Gurgaon-122001.  

2.      Mr. Ramesh Chandra, Chairman, Unitech Limited 6, Community Centre, Saket, New Delhi-110017.

3.      Mr. Ajay Chandra, Managing Director, Unitech Limited 6, Community Centre, Saket, New Delhi-110017.

4.      Mr. Sanjay Chandra, Managing Director, Unitech Limited 6, Community Centre, Saket, New Delhi-110017

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Pardeep Solath, Advocate for complainant.

Shri Gaurav G.S. Chauhan, Advocate for Opposite Parties.    

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          Vishal Setia and his brother Vikrant Setia-complainants booked a flat with Unitech Limited and others-Opposite Parties, vide application dated 2^nd August, 2011. The price of the flat was Rs.58,58,382/-. The complainants paid Rs.6.00 lacs vide two cheques both dated 28^th July, 2011. The opposite parties allotted flat No.E-01-0001 in Anthea Floors, Wildflower Country, Gurgaon vide allotment letter Exhibit C-1 under Construction Linked Plan and the remaining price of the flat was to be paid as per Payment Schedule. A Buyer’s Agreement (Exhibit C-4) was executed between the complainants and the opposite parties on 2^nd November, 2011. In all, the complainants paid Rs.23,41,782/- to the opposite parties.

2.                As per Clause 4.a.1 of the agreement, the possession of the flat was to be delivered within 36 months from the date of signing the agreement, that is, up to 2^nd November, 2014 besides a period of three months as grace period. The opposite parties failed to deliver possession within the stipulated period. The complainants sought refund of the amount paid by them but they did not refund the same. Hence, the complainants have filed complaint under Section 17 of the Consumer Protection Act, 1986, seeking refund of the deposited amount alongwith interest and compensation.

3.                The opposite parties contested the complaint by filing written version.  It was stated that the period of 36 months was a tentative time besides three months grace period. As per Clause 8(b) of the Buyer’s Agreement, in case of any delay in handing over possession on account of force majeure or circumstances beyond the control of the opposite parties, the opposite parties were entitled for reasonable extension of time. As per Clause 4.C of the agreement, the opposite parties were liable to pay compensation @ Rs.5/- per square feet per month of the super area of the flat for the delayed period beyond 39 (36+3) months.  Thus, denying the allegations of the complainants, it was prayed that the complaint be dismissed.

4.                Vishal Setia-complainant appeared as CW-1 and tendered her affidavit Exhibit CW-1 besides other documents Exhibit C-1 to C-22.

5.                The opposite party tendered affidavit (Exhibit OP1/A) of Lalit Gupta-authorised representative of M/s Unitech Limited and also tendered document, that is, Resolution dated 19^th June, 2015 (Exhibit OP-1).

6.                Counsel for the parties have been heard. File perused.

7.                Undisputedly, the complainants had purchased the flat from the opposite parties vide agreement C-4. It is also not in dispute the opposite parties allotted flat No.E-01-0001 in Anthea Floors, Wildflower Country, Gurgaon vide allotment letter Exhibit C-1.  The Basic Sale Price of the flat was Rs.58,58,382/-. The payment was to be made under Construction Linked Plan as per Payment Schedule. It is also not in dispute that the possession of the flat was to be handed over to the complainants within 36 months from the date of the agreement, that is, on or before November 2^nd, 2014 besides 3 months grace period, but the possession was not delivered.  Indisputably, the amount of Rs.23,41,782/- was paid by the complainants with respect to the flat in question.

8.                The plea taken by the opposite parties that since the construction could not be raised due to the circumstances beyond their control, thus they are entitled to the benefit of force majeure clause, is not tenable because nothing has been brought on the record to show the reason for delay in handing over possession. No explanation has been given by the opposite parties for this inordinate delay in raising construction. Any financial hardship faced by the opposite parties due to recession in the real estate is no ground to take benefit of force majeure clause. Thus, the builder has proved itself deficient in service by not completing the construction of the flat. Thus,    non-construction of the flat as per agreement is itself a deficiency in service and therefore the allottees are entitled to seek refund of the amount paid by them alongwith interest.

9.                Taking into account the facts and circumstances of the case, the complainants are justified in seeking refund of the amount.  In view of this, it is held that the opposite parties are liable to refund the amount deposited by the complainants, alongwith interest and compensation.

10.              Hence, the complaint is allowed. The Opposite Parties are directed to refund the amount of Rs.23,41,782/- to the complainants alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for harassment etcetera and Rs.11,000/- litigation expenses. The entire amount be paid to the complainants within a period of 45 days, from the date of receipt of this order, otherwise, it will carry interest at the rate of 15% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the builder fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both. 

 

Announced 12.01.2017

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL