Delhi

StateCommission

CC/1328/2017

CAPT. SARABJIT SINGH - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

VRINDA KAPOOR

18 Dec 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision:18.12.2019

Complaint Case No. 1328/2017 

In the matter of:

Capt. Sarabjit Singh

S/o late Dr. Sohan Singh,

R/o, 3A-704, WHO Township,

Gurjinder Vihar, CHI-1 Sector,

Greater Noida,

Gautam Budh Nagar,

UP-201301                                                                    ...Complainant

 

Versus

 

        M/s Unitech Limited

        Registered Office at:

        6, Community Centre,

        Saket, New Delhi – 110017                                        …..Opposite Party

 

                                                                  

CORAM

 

Ms. Salma Noor, Presiding Member

 

1.       Whether reporters of local newspaper be allowed to see the judgment?                        

2.       To be referred to the reporter or not?                                                                   

 

Ms. Salma Noor:  Presiding Member

 

1.           This complaint has been filed by the complainant stating therein that OP invited application for allotment of apartments in its project namely Unitech Horizon situated at Plot No.6, Sector Pi-II, (Alistonia Estate) Greater Noida, Gautam Budh Nagar, UP and that possession would be handed over by 15.11.2008 and in case of default in handing over the possession, interest would be paid on delayed possession. It is stated that believing the representation of the OP the original allottee Mr. Sanjeev Katyal made an application for allotment of an apartment and entered into an agreement with the OP on 16.05.2016. Mr. Sanjeev Katyal was allotted an Apartment bearing No. 1003 in Tower 23 on the 10^th Floor measuring 1695 sq. ft. for total sale consideration of Rs.49,14,645/-. It is stated that as per Agreement possession of the said apartment was supposed to be handed over by 15.11.2008. The payment was to be made as per Annexure A of the allotment letter. It is stated that all the payments were made by the original allottee as per payment schedule. It is stated that in the year 2010 the complainant was desirous of purchasing a residential property and Mr. Sanjeev Katyal approached the complainant for selling the aforesaid apartment. Accordingly, the complainant entered into an agreement dated 23.10.2010 for purchase of said apartment from the original allottee Mr. Sanjeev Katyal. It is stated that complainant purchased the said apartment from Mr. Sanjeev Katyal and stepped into his shoes vide an endorsement of his name on the allotment letter dated 07.01.2011 issued by the OP and completed all the formalities for transfer as per the directions of the OP and also submitted a Demand Draft of Rs.78,300/- towards the same. It is stated that complainant paid the entire consideration amount of Rs.47,02,934/- of apartment which is more than 95% of the consideration amount. It is stated that even after making the payment towards apartment the complainant has not been able to get the possession of the said apartment. It is stated that the OP has willfully caused inordinate delay in completing the construction and till date not handed over the possession to the complainant. The complainant has made several visits to the project site and no construction work was found to be carried out by the OP at the site. It is stated that complainant has been repeatedly enquiring about the status of the construction and possession of the apartment since July, 2011. He even met the officials of the OP to enquire about the date of possession, however, OP avoided to give any plausible reply. It is stated that even after expiry of almost 09 years from the date of agreement the possession has not been handed over to the complainant. It is stated that the project is still incomplete and there is no hope for completion of the said project and an inordinate delay has been caused on part of the OP. It is stated that complainant vide letter dated 26.05.2017 cancelled the agreement and asked for refund of the amount already paid. However, OP has refused to refund the amount paid by the complainant.
2.           Aggrieved with the action of the OP, complainant has filed the present complaint seeking direction to the OP to refund Rs.47,02,936/- along with interest @18% p.a., Rs.10,00,000/- towards compensation and cost of litigation.
3.           OP was served with the notice of the complaint. AR of the OP had put in appearance and sought time to file written statement. However, OP failed to file the reply, subsequent to which right of the OP to file written statement was closed vide order dated 31.08.2018. The said order has not been challenged by the OP.
4.           To succeed in the complaint, complainant has filed his own evidence by way of affidavit wherein the contents of the complaint case have been reiterated on oath. Complainant has proved on record copy of the allotment letter cum agreement dated 16.05.2006, Ex.CW-1/1(Colly); copies of receipts of the payment , Ex.CW-1/2(Colly); copy of agreement dated 23.10.2010, Ex.CW-1/3; copy of letter of endorsement along with covering letter dated 07.01.2011, Ex.CW-1/4(Colly); copy of the application along with receipt of Rs.78,300/- and indemnity bond, Ex.CW-1/5(Colly); photographs of the said project site, Ex.CW-1/6(Colly); copies of judgment of National Commission passé against the OP, Ex.CW-1/7(Colly).
5.           Evidence of the complainant has gone un-rebutted. From the un-rebutted evidence it stands proved that complainant has made the payment of Rs.47,02,934/-. The receipt issued by the OP shows that OP has received an amount of Rs.47,02,936/- from the complainant towards sale consideration of the apartment, Ex.CW-1/2(Colly).
6.           I have heard the arguments of counsel for parties and perused the material on record.
7.           It is admitted position that OP has received the amount of Rs.47,02,936/- towards consideration of apartment. From the un-rebutted evidence of the complainant, it is established that OP has failed to construct and deliver the possession within the stipulated period of 15.11.2008 from the date of execution of Allotment letter dated 16.05.2006. Since then more than 09 years have passed and till today no offer of possession has been made by the OP. It is stated by the complainant that neither the construction is completed nor the OC has been obtained by the OP. Material on record shows that complainant has already paid Rs.47,02,936/- out of total sale consideration of Rs.49,14,645/-.
8.           In the absence of any evidence/explanation for failure to comply with the delivery of possession, in my view OP has committed deficiency in service and also indulged in unfair trade practice.
9.           Clause 4.e. of the Allotment Letter deals with the inability of the OP in case they are unable to offer possession. Clause 4.e. is reproduced as under:

Clause 4.e

“ if for any reason the company is not in a position to offer the Apartment altogether the company 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 OP is not in a position to offer possession of the flat, the OP shall be liable to refund the amount with simple interest @10% p.a. There is no dispute that OP has failed to construct and deliver the possession of the flat till today. The complainant cannot be expected to wait for possession of the flat for an indefinite period. 
11. In view of the above discussions, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.47,02,934/- paid to the complainant within forty five days from the date of receipt of the order alongwith simple interest @10% from the respective dates of payment of instalments to the complainant.

 

12. Copy of the order be sent to the parties free of costs as per rules. Thereafter file be consigned to Record Room.    

 

 

 

(Salma Noor)

Presiding Member​