DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.197/2017
Wing Commander Rajesh Sharma
O/o Room No. 310,DTE of OPS
(ATS) Air Force Headquarters,
Vayu Bhawan, New Delhi-110106. ….Complainant
Versus
- Unitech Limited,
Through its Chairman,
Registered Office,
6, Community Centre,
Saket, New Delhi-110017.
- The Customer Relations,
Commercials and Sales,
Unitech Limited,
Unitech House L Block,
South City-122001
Haryana.
- Marketing Office
Unitech Commericial Towers II
1st Floor, Sector-45, B-Block,
Greenwood City,
Gurgaon-122001
Haryana. Opposite Parties
Date of Institution : 06.06.2017 Date of Order : 07.06.2018
Coram:
Sh. A. S. Yadav, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the complainant is that the complainant saw an advertisement in the year 2011 and contacted the OP for the booking flat marketed by the name of UNI-HOMES. The company had shown the actual site as well as the virtual view of the building that was to be constructed and completed by the OP and the possession was given on 22.06.2013. Accordingly the complainant and the OP company entered into an agreement on 23.05.11 and OP issued the allotment letter to the complainant against the first installments of Rs. 3,50,000/- paid by complainant through cheque No. 792729 dated 07.05.2011. OP issued the allotment letter dated 23.05.11 and copy of the receipt of Rs.3,50,000/-. The complainant had agreed to book one residential property on plot no. 7 on the first floor of the B-block UNI-HOMES TOWERS having super area 1646.00 sq. ft. consisting of three bedroom with preferred sector road facing on the agreed amount of Rs.34,54,352/- in the terms of the construction linked plan that was fixed to be paid in 14 installments on agreed time period. The OP issued a demand letter of second installment of Rs.2,79,810/- with due date 07.07.11. The complainant deposited two cheques of Rs.89,810/- and Rs.1,90,000/- bearing No. 127389 & 127390 on 04.07.11 respectively. The OP again sent a demand letter for third installment of Rs.3,14,905/- with due date of 21.08.2011 which was deposited by the complainant before the due date of Rs.1,90,000/- and Rs.1,24,905/- cheque bearing No. 127394 and 127395 respectively. The complainant had deposited the total amount of Rs.9,44,715/- within 90 days of the booking as per the agreement entered between complainant and the OP company. However the rest of the amount was to be given after the commencement of the construction. It is submitted that after one year when complainant visited the construction site he did not find any construction work being carried out at the site by the OP company. He only found the empty site with no sign of construction work. Complainant contacted the office of the OP company on which he was assured that soon the construction work would start once the due permission is obtained from the concerned Government Authorities. Some of the office bearers even suggested and offered him to take another property on any other location as an alternative to this project. Complainant felt cheated by the failure of the OP to execute its agreement and also about the offers the OP was making as an alternative to the agreed property which is nowhere mentioned in the agreement. Complainant again visited the construction site again in 2013 but there was no development in the construction work even after two years. Out of anxiety complainant thought of considering the offer by OP about alternative property but when the complainant visited the alternative property he realized that it was not at all worth the property agreed in the agreement dated 23.06.2011. When the complainant contacted the OP the company official informed him that they are soon going to start the project as the required approval has been given the Government Authority. In the year 2015, complainant was told by the officials of OP company that the amount deposited shall be returned along with the interest if the complainant makes a request for the same. Complainant soon after the aforesaid suggestion made a request for returning the amount along with interest as complainant has lost all the hope in the project. The complainant was transferred to Delhi in the month of June, 2015 and informed through the letter of the OP company for updating his new address of New Delhi in the records for any further communication to the complainant along with that complainant also made a request for refunding the amount deposited with the interest as the project has not yet commenced but the complainant had not received any reply from the OP. The complainant again sent a letter dated 26.09.2015 and 30.12.2015 to the OP regarding to the refund of the amount deposited by the complainant along with applicable interest but the OP company failed to give any response to the said letters. Complainant visited the OP Delhi office and inquired about the refund of the deposited amount however complainant was told that the OP company is in grave crisis, so complainant has to wait for some time to get the refund. It is submitted that on 20.10.2015 an email was received from Mr. Devendra Rawat of Unitech wherein through the attachment the complainant was informed that an amount of Rs.13,40,822/- was to be refunded by the company to the complainant. The complainant sent a legal notice on 25.07.2016 but no reply was received from the OP. It is submitted that a letter was received by the complainant which was issued by the OP company pursuant to an order made on 02.09.2016 by the Hon’ble Delhi High Court in the company Application No. (M) 88 of 2016 directing for convening the meeting on 20.11.2016 of certain categories of home which was to be held at Mohali, Punjab. The meeting was stayed by the order of the Hon’ble Supreme Court. On 27.04.2017 the complainant made a complaint to the Commissioner of Police, New Delhi to look into the matter. The matter was referred to the Joint Commissioner of Police vide diary No. 7785 email dated 27.04.2017 but no action has been taken till date. Hence, pleading deficiency in service on the part of the OP, the complainant has filed the present complaint for the following reliefs:-
- To direct the OP to refund the requisite amount with interest @ 10% p.a. from the date of its deposit till realization.
- To direct the OP to grant compensation for mental agony and harassment to the tune of Rs. 5 lacs.
- To direct the OP to grant the cost of litigation to the tune of Rs.50,000/-.
Notice was issued to the OP which received back with the postal remark ‘left W/A’. The postman of Malviya Nagar post office was summoned. Notice was given dasti to the complainant on 09.01.2018 which was duly delivered in the office of the OP on 24.01.2018 but none was present on behalf of the OP. Hence, OP was proceeded exparte 23.03.2018.
The complainant has filed his own affidavit in exparte evidence.
We have heard the complainant and have also carefully gone through the record.
OP has knowledge about the filing of the complaint but did not chosen to contest it.
Averments made in the complaint have remained uncontroverted and unchallenged. Hence, there is no reason to disbelieve the version of the Complainant.
It is not a dispute that the complainant had taken the membership from the OP and as per annexure C-1. The OP had issued an allotment letter 23.05.2011. The complainant requested to refund the amount but OP had not refunded amount till date.
The complainant filed a allotment letter dated 23.05.2011 as Annexure-C/1(colly) including receipt dated 23.05.2011 for an amount of Rs. 3,50,000/-. The complainant filed annexure-C/2 as a buyer agreement signed by consumer as well as OP. Complainant has filed the receipt issued by the OP of different dates. The complainant sent a letter dated 06.07.2015 to the OP regarding change of address and mobile number as annexure C/5 (colly) along with refund of money with interest dated 06.05.2015. The complainant sent reminder dated 26.09.2015 regarding refund of money as annexure-C/6. The complainant sent a legal notice dated 25.07.2016 as annexure-C/7. The complainant filed a letter received from OP regarding convenient of meeting in certain category of home buyers. Complainant filed a complaint against the OP as annexure C/10.
As per the buyers agreement signed by the parties according to article 4,
Possession
4(a) Delivery of possession ‘that the possession of the Floor is proposed to be delivered by the Developer to the Purchaser(s) within 24 months of signing hereof subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Purchaser(s) under this Agreement have been paid to the Developers within the stipulated period. It is, however, understood between the Parties that various Floors in the Complex Shall be ready and be completed in phase and handed over to the allottees accordingly.
4.c. That the Developer shall be liable to pay to the Purchaser(s) charges @ Rs.4/- per sq. ft. per month of the Super Area of the Floor for the period of delay in offering the Possession of the said Floor beyond the period indicated in clause 4.a. save and except where delay occurs for reasons beyond the control of the Developers. These charges, if payable, shall be adjusted at the time of offer of possession.
It is evident from the record i.e. Inter Office Memorandum of the Accounts Department of OP whereby OP offered the complainant a sum of Rs. 13,40,822/-(paid amount with interest @ 10% p.a. as per clause 4 (e) of Buyer’s Agreement). However, the OP did not honour its commitment.
Keeping in view all the facts and circumstance discussed above, we hold the OP guilty of deficiency in service and unfair trade practice since there is no evidence on the record which may even remotely show that the OP had booked the flat with an intention to start the construction and to handover the possession thereof to the complainant within the stipulated period.
Therefore, we allow this complaint and direct the OP to refund the fee of Rs. 13,40,822/- along with interest @ 9% p.a. from 15.10.2015 and to pay Rs. 20,000/- towards compensation for harassment and mental agony etc. including costs of litigation to the complainant within 30 days of receipt of copy of this order.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 07.06.18.
(NAINA BAKSHI) (A.S. YADAV)
MEMBER PRESIDENT
