Haryana

StateCommission

CC/144/2017

GAGAN KAPOOR - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

RAJNEESH MALHOTRA

30 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                       Consumer Complaint No.     144 of 2017

                                       Date of Institution                  14.03.2017

                                       Date of Decision                             30.07.2018

 

 

 

 

 

 

 

 

1.      Shri Gagan Kapoor son of Shri S.S. Kapoor, resident of House No.1690, Sector 34D, Chandigarh.

 

2.      Shri Sukhwinder Pal Singh Bajwa son of late Major G.S. Bajwa, resident of 17A, New Officers Colony, Patiala, Punjab.

                                      Complainants

Versus

 

1.      Unitech Limited through its Managing Director, Registered Office: 6, Community Centre, Saket, New Delhi-110017.

 

2.      Unitech Limited through its Manager, Real Estate Division (Marketing), Ground Floor, Signature Towers, South City-1, NH-8, Gurgaon -122001 (Haryana).

 

3.      Unitech Limited through its Manager, Unitech House, L Block, South City-1, Gurgaon -122001, Haryana.

Opposite Parties

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                  

                                                                                                               

 

For the parties:   Shri Rajneesh Malhotra, counsel for the complainants

                             Ms. Vertika H Singh, Advocate for the opposite parties.

 

                                                   O R D E R

 

NAWAB SINGH J, (ORAL)

 

          The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) has been filed by Gagan Kapoor and Sukhwinder Pal Singh Bajwa-complainants averring that on October 01^st, 2011 they booked an apartment with Unitech Limited-opposite parties (for short ‘Developer’). The price of the Apartment was Rs.73,62,528/-. They were allotted Apartment No.A5-504, 05^th Floor in Crestview Apartments, Wild Flower Country, Sector-70, Gurgaon. Flat Buyers Agreement dated February 14^th, 2012 was executed.  As per Article 4.a, the Developer proposes to offer possession of the Apartment within a period of 36 months from the date of signing of the agreement (with grace period of 03 months), that is, on or before May 14^th, 2015.  In all, the complainants paid Rs.25,70,291/- to the Developer.  The construction has not been completed by the Developer.  The complainants prayed that the Developer be directed to refund the deposited amount, that is, Rs.25,70,291/- alongwith interest at the rate of 15% per annum alongwith compensation and litigation expenses.

2.      The opposite parties, in their written version, resisted the complaint on various grounds, including its maintainability. The builder in preliminary objections averred that this Commission does not have the pecuniary jurisdiction to try/adjudicate the complaint because the complainants are not “Consumers” within the meaning of Section 2(1)(d) of the Consumer Act, as the apartment in question has been booked for resale/commercial purpose. The overall recession and financial problems, which were not foreseen, contributed to the delay in the completion of the project.  The complainants cannot seek refund of the deposited amount.   

3.      The complainant Sukhwinder Pal Singh Bajwa in his evidence appeared as CW1 and produced following the documents:-

1.	Allotment Letter dated 01.10.2011	Exhibit C-1
2.	Payment Schedule issued by Developer to the complainants	Exhibit C-2
3.	Buyer’s Agreement dated 14.02.2012	Exhibit C-3
4.	E-mail dated 05.05.2016 alongwith statement E-Mail dated 30.03.2016 issued by Axis Bank Limited	Exhibit C-4
5.	Summary of account as on 31.12.2011 issued by ICICI Bank	Exhibit C-5
6.	Statement E-mail dated 30.03.2016 issued by Axis Bank Limited	Exhibit C-6
7.	Statement of account issued by HDFC Bank	Exhibit C-7
8.	Receipt dated 01.10.2011 of Rs.3,50,000/-	Exhibit C-8
9.	Receipt dated 01.10.2011 of Rs.3,50,000/-	Exhibit C-9
10.	Receipt dated 14.06.2012 of Rs.8,32,291/-	Exhibit C-10
11.	Detail of payment sent by Developer to the complainants	Exhibit C-11
12.	Letter dated 02.02.2014 written by Gagan Kapoor-complainant to the Developer	Exhibit C-12
13.	Letter dated 25.06.2015 written by Sukhwinder Pal Singh Bajwa-complainant to the Developer	Exhibit C-13
14.	Mail dated March 23rd sent by Sukhwinder Pal Singh Bajwa to the Developer	Exhibit C-14
15.	Postal receipts	Exhibit C-15
16.	Legal notice dated 27.05.2016	Exhibit C-16
17.	Postal receipt	Exhibit C-17

 

4.      The developer, examined Lalit Gupta-OPW1, Authorized Representative and produced resolution dated June 19^th, 2015 Exhibit OP-1.

5.      Indisputably, the complainants had applied for apartment with the developer. Buyer’s Agreement (Exhibit C-3) was executed between the parties on February 14^th, 2012. Apartment No.A5-504, 05^th Floor in Crestview Apartments, Wild Flower Country, Sector-70, Gurgaon was allotted to the complainants. The complainants paid Rs.25,70,291/- to the developer.  As per clause 4 a (i) of the agreement, the possession of the flat – apartment was to be given within thirty six months of signing the agreement, that is, by May 14^th, 2015 but the developer failed to do so and it was certainly a case of deficiency in service.  Except for a bald plea in the written version that the apartment had been purchased by the complainants with a view to sell it on premium and make profits, Developer has not said even an additional word in this behalf, leave alone leading evidence to prove the assertion.  Lalit Gupta-OPW1 in his cross-examination has admitted that the apartment has not been offered to the complainants.  Neither the deposited amount was refunded to the complainants nor any interest on the said amount was paid to them.  The developer is still not in a position to handover the possession of the apartment in near future.  Clause 4.e ‘Inability to offer possession’ of the Buyer’s Agreement (Exhibit C-3) reproduced as under:-

          “If for any reason the Developer is not in a position to offer the allotted Apartment, as agreed herein, the Developer will offer the Apartment Allottee (s) an alternative property in any complex developed, underdevelopment or proposed to be developed in the surrounding area / projects and if no alternate property is available the Developer will refund the amount paid by the Apartment Allottee (s) in full with interest @ 12 % per annum from the date of payment (s) by the Apartment Allottee (s) without any further liability to pay any damages, compensation or other charges.”

6.      A reading of the aforesaid clause shows that if for any reason the developer is not in a position to offer the allotted apartment, developer would offer an alternative property in any complex developed, underdevelopment property or to refund the amount paid by the allottee in full with 12% interest p.a. from the date of payment (s).  The developer neither offered alternative property nor refund the deposited amount.

7.      In view of above, the complaint is allowed. The opposite parties are directed to pay Rs.25,70,291/- (Rupees Twenty Five Lac Seventy Thousand and Two Hundred Ninety One Only) to the complainants, alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for rendering deficient services and Rs.10,000/- towards litigation expenses. The entire amount be paid by the developer within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the developer fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both.              

 

 

Announced 30.07.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President