Haryana

StateCommission

CC/160/2017

GAYATRI - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

J.S.YADAV

29 Nov 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  Case No.160 of  2017

Date of the Institution:17.03.2017

Date of Decision:29.11.2018

 

Ms. Gayatri W/o Sh. Satpal Singh R/o House No.43, Mangla Apartments, G-Block, Kalkaji, New Delhi-110019

                                                                   .….Complainant

Versus

 

1.      Unitech Limited, Real Estate Division (Marketing) 5^th Floor, Signature Towers, South City-1, NH-8, Gurgaon-122001, Haryana, through its Legal Representative.

 

2.      Unitech Limited, Real Estate Division (Marketing) Regd., Office-6, Community Centre, Saket, New Delhi-110017, through its M.D/Director.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.J.S. Yadav,  Advocate for complainant.

Mrs. Vertika H.Singh, Advocate for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          Complainant has filed complaint under the Consumer Protection Act, 1986 (In short “Act”) pleaded therein that on 01.10.2011 he booked a two bedroom residential Flat No.1104, Block No.A2 on 11^th floor having super area of 1254 sq. ft. of opposite parties (O.Ps.). The basic sale price of the flat was Rs.72,64,810/-.  The complainant had deposited Rs.23,43,260/- to the Ops at different phases. Apartment Buyers agreement was executed between the parties on 08.12.2011. As per clause No.4 (a) (i) of the agreement, the possession of the apartment was to be delivered within 36 (months)+3 months (grace period)=39 months therefrom, but, till date possession of the apartment was not delivered to him. The O.Ps. have committed the unfair trade practices and also cheated the complainant and other innocent people also. The complainant requested the O.Ps to refund the amount but till date O.Ps were not paid any heed to the request of the complainant.  Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to make payment of a sum of Rs.23,43,260/- which had been deposited by the complainant alongwith interest @ 18% per annum from the date of deposits till the date of actual payment and to pay compensation of Rs.2,00,000/- for causing mental agony etc. and Rs.25,000/- as litigation expenses.

2.                Notice of the complaint was issued against the O.Ps. and the reply was filed, wherein the averments taken in the complaint were  strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection it has been alleged that there was no clause in the buyer’s agreement to give any interest to the complainant and both the parties were bound by the terms and conditions of said agreement. It has also been alleged that possession of the flat was to be handed over to the complainant within a period of 39 months from the date of execution of buyer’s agreement. It has been further alleged that O.P could not and over the possession of the flat firstly due to default in regular payments. Since,  there was no negligence on the part of the answering O.Ps. or no substantial loss has been caused to the complainant and similarly, there was no deficiency in rendering the services of the answering O.Ps. on these sole ground, the complaint is liable to be dismissed.

4.                It has further been alleged that O.ps. did not hand over the possession of the flat due to reasons of Global meltdown of the economy world-wide wherein the foreign investors as anticipated by the O.Ps.  Due to constraint circumstances, the construction could not be completed.  Thus there was no deficiency in service on the part of the O.Ps. and prayed for dismissal of the complaint.

5.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-11 and closed the evidence.

6.                On the other hand, O.Ps have tendered in their evidence affidavit Ex.RA  alongwith document Ex.R-1 and closed the evidence.

7.                The arguments have been advanced by Sh.J.S. Yadav, learned counsel for the complainant as well as Mrs. Vertika H.Singh, learned counsel for the O.Ps.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led by the complainant during the proceedings of the complaint had also been properly perused and examined.

8.                As per the basic averment taken in the complaint and the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainant is entitled to get refund of the amount which he has already deposited alongwith the interest. 

9.                While unfolding the arguments it has been argued by Sh.J.S. Yadav, Advocate learned counsel for the complainant that as far as the executing the apartment buyers agreement is concerned it is not in dispute. It is also not in dispute that an amount of Rs.23,43,260/- had been paid by the complainant to the  O.Ps.  As per the buyers agreement Ex.C-6 and the terms and conditions incorporated therein including date of delivery of the possession, the possession complete in all respect was to be delivered to the complainant by the O.Ps. on or before 07.03.2015 which includes three months grace period.

10.              The period within which, the possession of the flat was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount which he had already paid alongwith interest. 

11.              On the other hand, it has been argued by Mrs. Vertika H.Singh, learned counsel for the O.Ps. that the amount which the complainant had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  Several reminders issued to him regarding balance payment, but, he has not deposited the balance amount.  It is true that the documents were executed between the parties which includes the buyers agreement which contains all the terms and conditions for allotment, for payment of the installments, charging the interest for delayed payment and delivering of possession which includes three months grace period.  There was global recession which had hit the market/economy and which extended in the subsequent years as well affected the real estate sector of India to a large extent. Under these circumstances, the refund cannot be granted alongwith interest and the complaint may be dismissed. 

12.              As per the submissions made by Sh.J.S. Yadav, learned counsel for the complainant as well as Mrs. Vertika H.Singh, learned counsel for the O.Ps and after perusal of the entire record as well as appreciation of the evidence during the prosecution of the complaint.  It is true that the O.Ps. have launched a residential housing project under the name and style of  “Crestview Apartments Wildflower County” in the area of District Gurgaon.  The complainant had opted to book an apartment and initially, he had deposited an amount of Rs.7,00,000/- thereafter, the buyer agreement EX.C-6 was executed between the parties on 08.12.2011 and as per sub clause 4(a) of the agreement, it contains the terms and conditions of completion of the project and the most important part is that delivery of the possession within the period of 36 months alongwith a grace period of 3  months has further been allowed. As per the details of the payment mentioned in the complaint had paid sum of Rs.7,00,000/-  through cheque bearing No.765786 dated 28.09.2011(Ex.C-3). Similarly, the complainant had further paid a sum of Rs.8,21,630/- through cheque bearing No.765790 dated16.11.2011 (Ex.C-4) and Rs.8,21,630 through cheque bearing No.387846 dated 03.01.2012 (Ex.C-5).

13.              Thus, it is apparently clear that complainant had deposited Rs.23,43,260/-  including service tax to the O.ps. whereas, the total price of the unit was Rs.72,64,810/-. The buyers agreement was executed on 08.12.2011 and as per the clause 4(a) (i) of the buyers agreement, the possession of the possession of the apartment was to be delivered within 36 (months)+3 months (grace period)=39 months or on or before 07.03.2015. Still the period of 39 months had already expired and while advancing the arguments, it has been fairly conceded on behalf of the O.Ps. that the project is yet to be completed. The possession cannot be delivered under these constraint circumstances the O.ps. cannot be allowed to utilize or to enjoy the hardened money deposited by the complainant for getting the unit booked for their livelihood. It is the normal trend of the developers/O.Ps. that they would collect their hardened money from the general public and would invest the funds in other projects as a result thereof the project  for which the general public have invested their hardened money is not completed.  The complainant had to wait more than period of 39 months for delivery of possession.  In such like matters the court has to be callous enough and the O.Ps. are to be dealt with severe hands  and cannot be allowed to mis-utilizing the funds of the general public or to have  a mis-directions of funds, which ultimately has been resulted into non-completion of the project and ultimately, it is the complainant  or the general public who had to suffer. In such circumstances, it is evidently clear that complainant had already paid a sum of Rs.23,43,260/- and as such the complainant is entitled to get the refund of the amount in all proposition, the possession of the apartment cannot be delivered even in coming years and moreover, a period of more than three years have already been expired, hence the O.Ps. are directed to make a payment of Rs.23,43,260/- alongwith interest @ 12% per annum  from the date of respective deposits and till realization.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period of three months in that eventuality the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period. The complainant is also entitled of Rs.51,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

 

November  29^th , 2018                                                           Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

R.K.