JUSTICE J. M. MALIK, PRESIDING MEMBER (ORAL)

1.      There is magic in that little word ‘home’.  It is a mystic circle and surrounds comforts and virtues, never known beyond its hollowed limits. 

However, the customers are exasperated by senseless delay made by the Builder of a colony.

2.      Learned counsel for the parties present.  Arguments heard.

3.      Shri Arvinder Singh, the complainant, purchased a residential flat bearing No. 0403 on the 4^th level in Tower-I  in  Ambay Apartments, in the project known as ‘Unitech Golf and Country Club’ being developed by OP 1/Unitech Hi-Tech Developers Limited and OP 2/Unitech Acacia Projects Pvt. Ltd. in  Sector  96, 97 and 98, Noida, UP.  The complainant visited the site and inspected the sample flat on 8.4.2011.  The complainant was given an assurance by the OPs that the possession of the flat would be given within a short span of 24 months from the date of allotment.  The complainant moved an application for allotment of flat and a sum of Rs.15,93,288/-, as registration amount was paid to the OP 1.  Thereafter, the complainant was allotted the above said flat with super area 233.74 sq. mtrs.   The total cost of the apartment was fixed at Rs.1,62,64,997/-, which was inclusive of basic price, preferential location charges (if any), lease rent and use of space for car parking on a sub- lease’ basis.  The complainant had to take two loans for one house and made the timely payment.  Till 15.6.2015, the complainant had made payment of 95% of the total consideration in time.  Thereafter, legal

notice was given as the complainant did not get the possession of flat and ultimately this complaint was filed before this Commission on 18.09.2015 with the following prayers.

“A. Direct the Opposite Parties to execute and register a title deed in favour of the complainants in relation to apartment No. 04.03 on 4^th Level in Tower-I in Amber Apartments, in accordance with the terms and conditions signed by the parties.

B. Direct the opposite party to complete construction and hand over possession of apartment No. 04.03 on 4^th Level in Tower-I in Amber Apartments with super Area 233.74 sq. mtr (2516 sq. ft.) being constructed as a part of project Unitech Gold and Country Club along with allied basic amenities and facilities as provided in the pre-launch brochure to the complainant.

C. Direct the opposite party to pay interest at 18% p.a. compounded quarterly on the total amounts paid by the complainant to the Opposite Parties, from 8^th April, 2013 (i.e. the date on which possession was to be handed over), until the date of actual handover of possession (as on date amounting to Rs.1,25,22,545/-);

D. Direct that the Opposite Parties be made to bear any increase in service tax, stamp duty and registration charges from April 2013 onwards, until the actual date of execution and registration of the title deed;

E. Direct the Opposite Party to pay damages in a sum of Rs.25 lakhs to the complainant for the mental agony, undue hardship, and distress.

F. Direct the opposite party to pay litigation costs to the complainant in a sum of Rs. 10 lakhs; and

G. Pass such other and further orders which this Hon’ble Commission may deem fit and proper in the circumstances of the case.”

4.      The OPs have filed the written statement and set up the following defences in their written statement.  The main defence set up by the OPs was that Hon’ble High Court of Allahabad while deciding the bunch of writ petitions i.e. 471 Writ petitions) filed by various farmers challenging the notification and acquisition of land by State of U.P. (leading case being Writ Petition No. 37443 of 2011-Gajraj Singh vs. State of U.P. and Ors.) on 21.10.2011, restrained the NOIDA/Greater Noida authority and Allottees (Developers) not to carry out development and not to implement the Master plan 2021 till the observation and directions of the National Capital Regional Planning Board were incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board.  Again, the notification for acquisition of land allotted to the OP was also subject matter of some writ petitions.  Consequently, the entire

development of the project was blocked by pending litigation and agitation of farmers of village in which the project is situated. 

5.      During the arguments, learned counsel for the opposite parties admitted that they are unable to hand over the flat to the complainant even in the year 2016.  She further submits that they cannot hand over the flat immediately but it will take some time.  She further states that little work has started but it will take some time in completing the flat.  On the other hand, learned counsel for the complainant submits that during the pendency of this case, LIC has issued notice to resume the property and Greater Noida authority has issued notices to cancel the lease.  She submits that there is no chance at all that the complainant would ever get the possession of the flat.

6.      Consequently, it is clear that the flat cannot be given in near future.  Enough time has been given.  The plea that due to the restriction made by Allahabad High Court, they could not hand over the possession, appears to be made out of whole cloth.  No notification or judgment concerning the flat in question saw the light of the day.  It appears that this ground was taken merely for the sake of cavil.

7.      Learned counsel for the OP also submits that there are restrictions regarding taking the ground water and the National Green Tribunal has passed the order not to hand over the possession of the flat, which came

within 10 kilometers from Okhla Bird Sanctuary.  However, these orders were passed after the expiry of 24 months from the date of allotment of this flat.  Consequently, this order pales into insignificance.  Had the OP started the work after accepting the allotment money, this problem would not have arisen.  For the delay on the part of OP, the complainant has suffered harassment and mental agony.  The OPs can be safely held responsible for the above said delay. 

8.      In the celebrated authority reported in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012,  interest was granted @ 18% p.a.  The Hon’ble Apex Court  further  held at para Nos. 25  26,  of its judgment, as under :

“25.  The case of the complainant is covered by one of the examples  cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above.  In this case also, the amount was simply returned and the complainant  is suffering a loss inasmuch as she had  deposited  the money in the hope of getting a flat, but she is  being  deprived of  that  flat and thereby deprived of the benefit of escalation of the price of that flat. Therefore, the compensation

in this case should necessarily have to be higher, as per the decision of this Court.

26.  For the reasons aforesaid, we allow the appeals and pass the following orders :- 

i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/-  from  the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer  Forum.

ii) The respondent is directed to pay the appellant – complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.

iii)  The respondent is also directed to pay the appellant-complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her”.

9.      The complainant is hoping against hopes to get this flat for the last five years.  It is made clear that he would not get this flat during his life time.  He has put his hard earned money into this project and is paying huge amount in payment of interest to both the banks.

10.    It must be borne in mind that Unitech Hi-Tech   Developers has got many irons in the fire.  The OPs have made a vain attempt to feather

their own nest i.e. to make profit at the expense of others.  The OPs have utilised this amount for making a number of projects within NCR.  Consequently, we allow the complaint and direct the OPs to pay jointly and severally to the complainant a sum of Rs.1,60,39,790/- alongwith interest @ 18% per annum from the respective dates of payment of these amounts till their realisation.  We also impose costs in the sum of Rs.50,000/- only in favour of the complainant and against the OPs, which be paid within 90 days, failing which, it will carry interest @ 9% per annum.