ORDER ANUP K. THAKUR, PRESIDING MEMBER This consumer complaint has been filed by Ms. Priya Rao against the OP- Unitech Ltd. alleging that the OP has failed to deliver the flat booked by the complainant within 36 months from the date of signing of the Apartment Allotment Agreement. Briefly, on coming to learn about a 13 floor building named “Exquisite” , ata fairly advanced stage of construction, through a broker, and upon assurances given to her at a visit to the site that the building would be ready by Nov. 2013, she was informed that all the flats had already been sold out but some original buyers may be wanting to sell their allotments and the OP could, therefore, negotiate with one such buyer. She was shown Flat No. 0102 on the Ist floor in Tower-A2, admeasuring 2350 sq. ft. in a complex known as “Exquisite, Nirvana Country 2, Sector-71, Gurgaon”, with two coveredcar parking for a total consideration of Rs. 1,35,15,997/- plus service tax.She learnt that the entire price of car parking& PLC had already been paid; of the basic sale price of Rs. 1,20,29,063/-, Rs. 90,21,797/- had been paid; and out of Rs. 1,00,000/- for Club Membership Registration Charges (CMRC), Rs. 50,000/- had been paid.In this way, a total of Rs. 30,57,266/- remained to be paid. The complainant entered into an agreement dated 21.6.2013 with Mr. Moti Lal (HUF) and Mrs. Neelam Gupta and paid to them Rs. 1,59,37,109/- which included Rs. 1,08,38,892/-, the amount already paid by the original allottee to the OP.She also agreed to pay Rs. 15,83,923/- which was to be paid out of the balance due to the OP of Rs. 30,57,266/- and agreed to pay to the OP herself.She was issued a copy of the allotment letter dated 31.8.2010 which was in favour of the original purchaser as well a copy of the Buyers’ Agreement dated 12.11.2010.The allotment of the flat was transferred in her name, after making the payments to the original buyer and after furnishing all the documents demanded by the OP as also Rs. 1,98,035/- to the OP towards transfer charges. All these payments were duly witnessed by receipts granted by the OP. On 5.7.2013 and 13.8.2013, two additional demands were raised by the OP of Rs. 6,23,755/- each (Rs. 22,302/- being towards service tax) and the same was also paid, with receipt from the OP.In this way, the complainant paid 95% of the sale consideration and 50% of the Club Membership Registration Charges. The complainant submits that these payments were made by taking a loan from ICICI Bank and that she is having to pay floating interest on the said loan which fluctuates between 9% to 11%.She has attached with her complaint a copy of the Interest Payment Certificate. The case of the complainant is that having made payments as above, the OP has failed to deliver the flat within 36 months from the date of signing of the allotment agreement dated 12.11.2010.The due date of possession was 12.11.2013; however, the flat has not been delivered as on date.She is also paying a rent of Rs. 33,000/- p.m. which has increased from Rs. 29,200/- , the rent at the time filing of this complaint. As evidence, copies of the Lease Agreement dated 1.12.2013 & 1.11.2014 have been attached.It is, further, her case that the OP has failed to restart the construction of the project even after filing of the consumer complaint and that she can no longer believe that the OP will ever complete the project.As such, she has amended her complaint which was accepted vide order dated 29.8.2018, vide which she has now sought a full refund of the entire amount paid towards purchase of the said apartment, along with 14% interest on the construction instalments from the date of receipt, with Rs. 10,00,000/- towards compensation for mental agony and some litigation cost also. During the course of proceedings of this complaint which was filed on 11.2.2015, on failure of proper representation on behalf of the OP, it was decided to proceed exparte on 29.8.2018. It was also noted on the said date that the OP had not filed any reply.On the same date, IA No. 4635 of 2017, an application for amendment of the complaint to which also no reply had been filed by the OP, was allowed.Parties were, thereafter, directed to file short synopsis of their arguments and the matter was listed for final hearing on 27.3.2019. On 27.3.2019, both the parties were represented by their respective counsels.The complainant was also present in person.Counsels submitted that a bunch of judgments have already been passed in similar, if not identical, cases against the same OP and, therefore, they would not have any objection if final arguments were dispensed with and order was passed in the instant complaint, on the basis of record and orders passed by the coordinate bench. The final order dated 27.3.2018 in CC No. 1308 of 2017- Sujata Ranganathan & Anr. Vs. M/s. Unitech Ltd., referred to by the counsel for the OP, was handed over at the bar. Similarly, counsel on behalf of the complainant also furnished 11 orders of the coordinate Benches in similar cases, with three of them relating to the same project, “Exquisite”, the subject of the present complaint. Accordingly, it is apposite to refer to the decision dt. 27.3.2018 of this Commission in CC 1308 of 2017. In this CC 1308/2017, it was noted that the complaint had been resisted primarily on the ground which this commission had already rejected in several consumer complaints. Reference was made to the case of Vibha Gupta Vs. M/s. Unitech Ltd. and other connected matters in CC No. 1100 of 2015 and Ravik Engineers Pvt. Ltd. Vs. Unitech Ltd. in CC No. 276 of 2017, which pertains to this very project, the relevant portion of which reads as under:
“5. As regards the alleged non-availability of ground water on account of the use of ground water in building activities, having been stayed by the Punjab and Haryana High Court, the following view taken by this Commission in Cap. Gurtaj Singh Sahni Vs. Unitech Limited, Consumer Complaint No.603 of 2014 and connected matters, decided on 2.5.2016 is pertinent:- “6. The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section-5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction.” (5) The learned counsel for the complainant submits that in order to avoid any further litigation on the part of the OP, the complainants are restricting their claim to refund of the principal amount in the form of simple interest @ 10% per annum in terms of clause 4.e. of the sale agreement which reads as under: 4.e. Default: If for any reason the developer in not in a position to offer the apartment, as agreed herein, the developer may offer the apartment allottee(s) alternative property or 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) For the reasons stated hereinabove, the complaint is disposed of with the following directions:- - The OP shall refund the entire principal amount of Rs. 1,63,42,493/- to the Complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of receipt of each payment till the date on which the aforesaid amount is refunded alongwith compensation in terms of this order.
- The OP shall also pay a sum of Rs. 25,000/- as the cost of litigation to the complainant.
- The payment in terms of this order shall be made within three months from today.”
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11.In a bunch of consumer complaints, the National Commission vide its order dated 24.7.2017, decided as below:- “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.1483 of 2016, the OP shall refund the amount of Rs.74,50,169/- 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.1625 of 2016, the OP shall refund the amount of Rs. 74,50,169/- 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.1890 of 2016, the OP shall refund the amount of Rs.63,68,735/- 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.27 of 2017, the OP shall refund the amount of Rs.72,03,996/- 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) The OP shall also pay Rs.10,000/- each as the cost of litigation in each complaint. (vi) The payment in terms of this order shall be made within three months from today.” |
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12.In a bunch of consumer complaints against the same OP, in Gurgaon, in the same project “Exquisite Nirvana Country 2, Gurgaon” vide order dated 28.11.2016, the following order was passed:- “7. Taking into consideration the current interest rate scenario in the country and also on the principal of parity, I am of the considered view that such of the allottees who want to take refund of the amount paid by them to the OP should be refunded the said amount alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4(e) of the Buyers Agreement. In the case of the allottees who want to wait for the possession of the flats allotted to them, considering the prevailing interest rates in the market, compensation in the form of interest @ 8% per annum from the committed date of possession, on the amount paid by them to the OP would be appropriate alongwith a direction to the OP to complete the construction of the flats in a time bound manner. 8. For the reasons stated hereinabove, CC Nos. 1104/2015, 1106/2015, 1108/2015, 1109/2015, 1113/2015, 1118/2015, 1119/2015, 1122/2015, 1123/2015, 1126/2015, 1130/2015, 1135/2015, 1137/2015, 1138/2015, 1140/2015 to 1142/2015, 1144/2015, 1145/2015, 1265/2015, 955/2016 to 960/2016, 962/2016 and 963/2016 are disposed of with the following directions: (i) The OP shall refund the entire principal amount received from the complainant in respect of the flat allotted to him along with compensation in the form of simple interest @ 10% per annum from the date of receipt of each payment till the date on which the entire amount payable to the complainant along with compensation in the form of interest in terms of this order is refunded. (ii) The OP shall also pay Rs.10,000/- as the cost of litigation in each complaint. (iii) The payment in terms of this order shall be made within three months from today.” 13.Following the discussion above, and for the reasons stated hereinabove, this consumer complaint is disposed of with the following directions:- The OP shall refund the entire payments made by the complainant to the OP, with compensation in the form of 10% p.a. simple interest from the date of receipt of each payment till the date on which the aforesaid amount is refunded; The OPs shall also pay Rs. 25,000/- as cost of litigation to the complainant; The payment as above shall be made within three months from the date of receipt of this order.
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