Any other order as this Hon’ble Court deem fit and proper in favour of the Complainant and against the Opposite Parties.
2. Brief facts as set out in the Complaint are that the Opposite Parties No.1 and 2 Developers were developing a township in the name and style of the project named “CAPELLA” in Greater Noida. The Developer had a tie-up with the ICICI Housing Finance Company Ltd. (hereinafter referred to as “the Finance Companty) to fund the money to develop a housing society in the name of “CAPELLA” and intended to provide loans to the prospective buyers in the aforesaid project. The Developer promoted the township as posh, green and prosperous township at a very cheap and affordable price to the prospective buyer with lot of incentives and interest free housing loans. The Developer also proposed a Scheme in the eve of Baisakhi as “BAISAKHI OFFER”, which proposed to the prospective customers, who were availing the housing scheme with the arrangement of home loans, that from the date of disbursal till the date of possession, the interest part of the loan will be borne by the Opposite Party No.1 Company. Such offer was available subject to payment of the booking advance of the flat. Lured by such an attractive advertisement of BAISAKHI OFFER, Complainant paid an advance amount of ₹5,36,625/- to the Developer by way of a cheque and booked a two bedroom residential apartment/Flat No.1004 in Block 19 at 10th floor admeasuring 1590 sq.ft. in his and his wife’s name (Smt.Kiran Pandey) in the said project with Customer Code No.CL 0112 dated 15.5.2008 in Uniworld at Greater Noida.
3. Complainant, for arrangement of housing loan from the Finance Company, issued a no-objection letter dated 18.6.2008 for mortgage of the flat. A tripartite agreement was entered into between the Developer, the Finance Company and the Complainant on 19.6.2008. Complainant thereafter paid ₹22,146/- to the Developer vide cheque dated 25.6.2008. Thereafter the Complainant promptly paid entire consideration of ₹56,81,170/-. Possession of the flat was to be handed over in 40 months from the date of agreement.
4. The possession was not handed over within the agreed period. Also, the Developer stopped paying the interest amount against the loan to the Finance Company after 6 months from execution of the tripartite agreement, without any intimation to the Complainant, which fact, the Complainant came to know when the collection agents of Finance Company approached him for arrears of the loan. It was further shocking to the Complainant having come to know that the project had not even commenced. It is further averred that the land against the said project had not been acquired till the date of filing of the Complaint. He therefore requested the Developer and the Finance Company to cancel his allotment and refund the money paid by him for allotment of the flat. It is further averred that the Developer and the Finance Company collusively and connivingly flashed the name of the Complainant in the defaulters list by screwing his CIBIL account, thereby not allowing the Complainant to raise loans for his business. Complainant issued legal notice dated 20.4.2016 to the Opposite Parties, whereafter the Developer offered another flat to the Complainant in another project, which was not acceptable to the Complainant for its undervalue and unworthiness on the quality. Complainant was harassed by the Developer and the Finance Company and their collection agents many times. Unfortunately, because of stress, Complainant’s wife died on 30.3.2011. Faced with such situations and under these circumstances, the Complainant has approached this Commission seeking the afore-noted reliefs.
5. This Complaint was originally filed arraying four Opposite Parties, which included Unitech Ltd. (as Opposite Parties No.1 and 2) and ICICI Housing Finance Company Ltd. (as Opposite Parties No.3 and 4). On 3.2.2017, when the Complaint came up for motion hearing, the Complaint was admitted and notice was ordered to be issued to the Developer only. This Commission deleted the name of the Finance Company, i.e. Opposite Parties No.3 and 4, from the array of parties stating that it was neither a necessary nor a proper party to the Complaint. As directed, an amended Memo of Parties was filed impleading only the Developer as the sole Opposite Party to the Complaint. Also, since the allotment of the flat was in the joint name of the Complainant and his wife Smt.Kiran Pandey, who died before institution of the Complaint, her legal representatives were also directed to be brought on record.
6. Despite notice, the Developer neither put in appearance nor filed the written version. Its right to file the Written Version was closed on 13.10.2017.
7. The Complainants filed their Affidavit by way of Evidence and marked Ex.CW-1 (Death Certificate of Smt.Kiran Pandey), Ex.CW-2 (colly) (copy of the cheque bearing No.41063 dated 2.5.2008 and provisional allotment letter/agreement to sale letter dated 15.5.2008), Ex.CW-3 (Copy of NOC), Ex.CW-4 (colly) (copy of the tripartite agreement and receipt No.000521 dated 21.6.2008), Ex.CW-5 (copy of Receipt dated 30.6.2008 towards balance payment) and Ex.CW-6 (colly) (copy of e-mail to cancel allotment from 23.2.2009 – 20.4.2016), Ex.CW-7 (colly) (copy of communication to clear CIBIL), Ex.CW-8 (copy of letter dated 25.6.2010, Ex.CW-9 (copy of e-mail dated 1.6.2015), Ex.CW-10 (colly) (copy of legal notice dated 20.4.2016 along with postal receipts with the returned legal notice with A/D card) on their behalf.
8. A perusal of the Complaint shows that the there is a specific pleading in the main body of the Complaint that the Complainant had paid an amount of ₹56,81,170/- to the Opposite Parties for purchase of a residential flat. It is also averred that despite paying the entire sale consideration, neither the possession was given nor was there any specific response to his legal notice dated 20.4.2016. It is seen from the record that the first payment was made way back on 2.5.2008 and the same is evidenced in Ex. CW-2 (colly). It is relevant to mention that the entire payment of the sale consideration was made between May, 2008 and July, 2008.
9. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019, decided on 25.03.2019], has observed as follows:
“……….It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified.”
10. In the instant case also, the Complainant cannot be made to wait indefinitely for possession of the flat, when there is absolutely no response from the Opposite parties and the Complainant is entitled for refund of the principal amount with interest. Though it is the Complainant’s case that for any default, the Opposite Parties charged interest @ 18% p.a. for the first month and @ 24% p.a. for the subsequent months, having regard to the fact that Banks have lowered the interest rate and the Hon’ble Supreme Court has been awarding interest keeping in view the current market situation and considering the recent decline in the cost of borrowing and return on the investments made with the Banks, we are of the considered view that simple interest @ 12% p.a. would meet the ends of justice, together with costs of ₹25,000/-.
11. In the result, this Complaint is allowed in part directing the Opposite Parties to refund the principal amount i.e. ₹56,81,870/- with simple interest @ 10% p.a. from the respective dates of deposit till the payment is made, together with compensation of ₹1,00,000/- and costs of ₹25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.
12. So far as the prayer regarding deletion of the name of the Complainant from CIBIL and issuance of NOC is concerned, the Complainant is put at liberty to approach CIBIL, which may consider his Application in accordance with law.
13. The Complaint stands disposed of in the above terms.
