JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.      The complainants herein were allotted apartment no. 0902 Level 9 Tower 07 Block No.3 in the development project ‘Unitech Grande’ undertaken by the opposite party located at Sector 96, 97 and 98, Noida.  The total sale consideration payable by the complainants as per the payment schedule  was Rs.1,20,28,346/- .  As per the allotment letter, the possession of the apartment was to be handed over within 30 months from the date of issue of allotment letter i.e. latest by 24.06.2012.

2.         On 25.06.2010 the complainants entered into Tripartite agreement with the opposite party and HDFC Ltd for loan of Rs.60,00,000/-.  It is the case of the complainants that they have paid total sum of Rs.1,10,00,000/- against the agreed consideration amount.  Despite that opposite party has failed to complete the construction and deliver possession of the apartment even five years after the stipulated date of delivery of possession.   Being aggrieved of the failure of the opposite party to perform their part of contract, the complainants have filed the consumer complaint seeking following prayer:

“a.        hold the opposite party of following unfair trade practices and restrain them from following such activities and direct Unitech Hi Tech Developers to provide an immediate and complete refund of the amounts paid to them by complainants;

b.         Direct the opposite party to pay interest @ 18% per annum on the account of delay, calculated on the amount already paid by the complainants ( i.e. Rs.1,10,00,000);

c.         Direct the opposite party to pay damages to the tune of Rs.10,00,000/- as compensation for mental harassment, torture and victimization of the complainants;

d.         Direct the opposite party to pay damages to the tune of Rs.6,00,000/- as compensation for the rental accommodation of the complainants paid till the date of filing of the complaint and also commutation costs incurred by the complainants till the date of filing of the complaint;

e.         direct the opposite party to pay the cos of litigation to the tune of Rs.1,00,000/- to the complainants and / or

f.          pass any other order (s) as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”

3.         Opposite party despite service of notice of the complaint has failed to  file written statement within the limitation provided under section 13 (2) of the Consumer Protection Act, 1986.  No request for condonation of delay or extension of time for filing written statement was made.  As a matter of fact, on  hearing dated 11.12.2017 learned counsel for the opposite party made a statement at the Bar that opposite party does not wish to lead written statement.

4.         Complainant no.1 has filed his own evidence by way of affidavit supporting the allegations made in the complaint.

5.         No one appeared on behalf of opposite party at the time of arguments.  Therefore, opposite party was proceeded ex parte.    

6.         I have heard counsel for the complainant and perused the record. 

7.         Learned counsel for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of allotment letter dated 25.06.2010 issued by the opposite party to the complainants it is clear that vide said allotment letter the complainants were allotted subject apartment in the development project Unitech Grande undertaken by the opposite party on agreed consideration amount of Rs.1,20,28,346/-.   It is also clear from clause 5 (a)  of the terms and conditions of the  allotment letter that the opposite party had agreed to deliver possession of the subject apartment to the complainants within 30 months from the date of the agreement. Complainants have categorically alleged in the complaint that against the consideration amount of Rs.1,20,28,346/-, substantial amount of Rs.1,10,00,000/- has been paid to the opposite party but even five years after the expiry of stipulated date,   the opposite party has failed to deliver the possession. As the opposite party has opted not to file written statement despite of service of notice of complaint, the above said allegations of the complainants are deemed to have been admitted as correct. Otherwise also, the said allegations in the complaint are reaffirmed by complainant no.1. Thus, it stands proved that despite of having received substantial consideration amount, the opposite party has failed to deliver possession of the subject apartment to the complainants. In absence of any explanation for failure to comply with the stipulation of delivery of possession, I have no hesitation in concluding that the opposite party has committed deficiency in service as also has indulged in unfair trade practice. 

8.         Now the question is as to what should be the amount of compensation?  In this regard, counsel for the complainant has argued for 18% interest on the amount paid.  No evidence, however, has been adduced to justify said claim.

9.         Clause 5 (d) of the agreement between the parties deals with the compensation to be paid by the opposite party if the opposite party is not in a position to offer possession of the apartment to the allottee / complainant.  Clause 5 (d ) is reproduced as under:

“Default:

If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer shall offer the allottee (s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.”

10.       On reading of the above, it is clear that if for any reason, the opposite party is not in a position to offer possession of the apartment, the opposite party company shall refund the amount with simple interest @ 10% p.a. without any further liability. It cannot be disputed that the opposite party has failed to deliver possession of the apartment even five years after the expiry of stipulated date.  Thus, in my view, this is a case of the opposite party not being in a position to offer possession of the apartment as the allottee cannot be expected to wait for possession of the apartment for indefinite period.  Thus, in view of the above clause, opposite party is liable to pay 10% interest p.a. on the deposited amount as compensation for its default. 

11.       In view of the discussion above, the complaint is allowed with following directions:

1.         The   Opposite   party   shall   refund   the   entire    amount   of Rs.1,10,00,000/- to the complainants within six weeks from today alongwith compensation of simple interest  @ 10% per annum from the date of each payment till the realisation of the amount.

2.         The Opposite party shall pay a sum of Rs.10,000/-  as cost of litigation to the complainants.