Haryana

Karnal

CC/80/2022

Rakesh Bahadur Kapoor - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Vineet Kapoor

07 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 80 of 2022

                                                        Date of instt.15.02.2022

                                                        Date of Decision:07.02.2023

 

1.     Rakesh Bahadur Kapoor son of Shri Ram Sarup Kapoor.

2.     Anuja Kapoor wife of Shri Rakesh Bahadur Kapoor.

Both residents of House no.1349, Sector-6, Urban Estate, Haryana.

 

                                               …….Complainants.

                                              Versus

 

Unitech Limited, Unitech World, Signature Tower, 13^th floor, Tower-B, South City, Gurugram-132022, Haryana.

 

                                                                   …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary….Member

       

 Argued by: Shri V.K. Kapoor, counsel for complainants.

                    Opposite party exparte.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainants have filed the present complaint Under  Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that OP is developer of commercial complex under the name and style of “Garden Galleria” in Uniworld city, Sector-106, Mohali, Punjab. The OP launched a Mega Township on the land known as Uniworld City, Sector-106, Mohali, Punjab. OP published a fancy brochure and advertisement regarding the highest standard of the project. Impressed by the claims and advertisement of the OP, complainants booked a unit no.0020 measuring 231.89 sq. ft. (21.54 sq. mtrs.) of super area on first floor in the complex of OP. OP has agreed to sell the abovesaid unit to complainants at Rs.3200/- pr sq. feet for total sale consideration of Rs.7,42,048/-. The complainants at the time of booking/registration an amount of Rs.83,200/- paid to the OP and got the receipt and acknowledgement. On 12.08.2010 an agreement to sell duly executed between the parties and a payment plan also given by the OP to the complainants. As per Article 4 clause 4.1 of agreement to sell the possession of the unit shall be delivered within 21 months and the OP further under clause 4.2 shall give written notice to the complainants about the date of handing over the possession of unit. The detail of payment plan reproduced as under:-

Sr. no.      Date of payment                Amount paid

1.             12.08.2010                       83200/-

2.             08.10.2010                       65208/-

3.             09.12.2010                       77794/-

4.             24.12.2011                       76115/-

                        Total                        3,02,317/-

 

No further demand was made by the OP. It is further averred that as per clause 4.1 of agreement to sell dealt with the expect of willful delay in construction of the unit for the reason attributable to the OP. After initial demands which were duly complied with by the complainant no demand came forth from the OP. Complainant visited the site so many times and was shocked to see that there was no progress of construction at the site. The OP failed to handover the possession of the unit as there was no construction has been raised as agreement dint of agreement to sell. Thereafter, complainant requested the OP for refund of the deposited amount with interest, but OP did not pay any heed to the request of OP. Complainant sent a written notice to OP on 19.06.2012 and enquired about the said area then the OP assured the complainant they would start the work very son. In the year 2013-2014, complainants again visited the site in question and found that there was no development made by the OP. Complainants again made written representation to the OP on 19.08.2013 and 20.05.2014 which were duly acknowledged by the authorized signatory of the OP. The complainants again visited the site in question in the year 2015-2016 and requested the OP to hand over the possession of the site in question to the complainants but OP has neither raise the construction nor given any satisfactory reply. The written representations dated 16.07.2015 and 13.09.2016 duly acknowledged by the authorized signatory of the OP. Complainants again sent the reminders dated 19.04.2017, 26.02.2018, 25.09.2019, 20.10.2010 to the OPs. Complainants deposited Rs.3,02,317/- with the OP in the hope of getting the physical possession of unit in question within the stipulated period of the agreement, however the OP failed to develop the site in question, provide basic amenity, develop roads, installation of the water and sewerage and electricity, for which the complainant underwent tremendous physical harassment and mental agony at the hands of the OP. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP did not appear despite service and opted to be proceeded against exparte, vide order dated 06.07.2022 of the Commission.

3.             Learned counsel for the complainant has tendered into evidence affidavit of complainant no.1 Ex.CW1/A, copy of agreement to sell Ex.C1, copy of payment plan Ex.C2, copy of allotment letter Ex.C3, copies of payment receipts Ex.C4 to Ex.C7, copies of letters, reminders and postal receipts dated 19.06.2012, 19.08.2013, 20.05.2014, 16.07.2015, 13.08.2016, 19.04.2017, 20.04.2017, 26.02.2018, 08.03.2018, 08.03.2018, 25.09.2019, 20.10.2020 Ex.C8 to Ex.C20 and closed the evidence on 27.10.2022 by suffering separate statement.

4.             We have heard the learned counsel for the complainant and have gone through the record available on the file carefully.

5.             Learned counsel for the complainants, while reiterating the contents of complaint, has vehemently argued that complainants booked a unit in the project of the OP. The total sale consideration of the unit was Rs.7,42,048/-. The complainants paid total  Rs.302317/- to the OP. As per agreement to sell executed between the parties  clause 4.1 the possession of the unit shall be delivered within 21 months but OP failed to deliver the possession to the complainants within stipulated period as there was/is no development work started at the site till date. Complainant requested the OP through various letters and reminders to complete the development work at the site and handed over the physical possession to the complainants but OPs did not pay any heed to the request of complainants and lastly prayed for allowing the complaint. Learned counsel for complainants has relied upon following judgments titled as Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022; Chandigarh Housing board Vs. M/s Parasvanath Developers Pvt. Ltd. and Anr. 2020(4) CCC 358 (S.C.); NBCC (India) Limited Versus Shri Ram Trivedi 2021 (3) CCC 080 (S.C.) and Marvel Omega Builders Pvt. Ltd. and Anr. Versus Shrihari Gokhale and Anr. 2020 (1) CCC 248 (SC).

6.             To prove their version, complainants have placed on file affidavit of Rakesh Bahadur Ex.CW1/A, copy of agreement to sell Ex.C1, copy of payment plan Ex.C2, copy of allotment letter Ex.C3, copies of payment receipts Ex.C4 to Ex.C7, copies of letters, reminders and postal receipts dated 19.06.2012, 19.08.2013, 20.05.2014, 16.07.2015, 13.08.2016, 19.04.2017, 20.04.2017, 26.02.2018, 08.03.2018, 08.03.2018, 25.09.2019, 20.10.2020 Ex.C8 to Ex.C20. As per clause 4.1 of the Plot Buyer’s Agreement Ex.C1 dated 12.08.2010, the possession of the plot in question was to be delivered within 21 months from the date of signing of the said agreement. The clause 4.1 of Plot Buyer’s Agreement reproduced as under:-

“That the possession of the unit shall be delivered to the Purchaser within 21 months hereof provided, all amounts due and payable by the purchaser under this Agreement have been paid to the developer and other terms and conditions of allotment/purchase agreement of the Unit are complied with”.

 

Both the parties are bound with the terms and conditions of the agreement to sell. As per clause 4.1 of the Agreement, OP was liable to hand over the physical possession within stipulated period but till date OP has not offered the physical possession to the complainants as no development work were started at the site. To rebut the evidence produced by the complainants, OP did not appear and opted to be proceeded against exparte. Thus, the evidence produced by the complainants is unchallenged and unrebutted and there is no reason to disbelieve the same.

7.             It is evident from the receipts Ex.C4 to Ex.C7, complainants had paid Rs.3,02,317/- to the OPs. It is also evident from the application Ex.C8 dated 19.06.2012, application Ex.C9 dated 19.08.2013, application Ex.C10 dated 20.05.2014, application Ex.C11 dated 16.07.2017, reminder Ex.C12 dated 13.08.2016, application Ex.C13 dated 19.04.2017, postal receipts Ex.C14 and Ex.C15, application Ex.C16 dated 26.02.2018, postal receipts Ex.C17 and Ex.C18, reminder Ex.C19 dated 25.09.2019 and reminder Ex.C20 dated 20.10.2020 that complainants continued made requests to the OP for  completion of the development works or to refund the amount deposited by them but OP neither completed the development work nor refunded the amount. The said applications/reminders have duly received by the OP. Complainants cannot be made to wait indefinitely for the delivery of the possession. In this regard we are relying upon the following authorities:-

8.             In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

9.             Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that act of the OP not handing over the possession of the plot in question to the complainants within stipulated period amounts to deficiency in service and unfair trade practice on the part of the OP.

10.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to refund Rs.3,02,317/- to the complainant with interest @ 9% per annum from the date of deposit till its realization. We further direct the OP to pay Rs.20,000/- to the complainants on account of mental agony and harassment and Rs.5500/- towards the litigation expenses.. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:07.02.2023     

 

                                                               

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member