Haryana

StateCommission

CC/13/2017

LT.COL AMRIBIR SINGH GHOTRA - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

S.S.GILL

16 Jan 2020

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.13 of  2017

Date of the Institution:13.01.2017

Date of Decision: 16.01.2020

 

Lt. Col. Amritbir Singh Ghotra (Retd.) S/o Lt. Col. Puran Singh, R/o # 4559, K Block, Darkshan Vihar, Sector 68, Mohali.

 

                                                                   .….Complainant

Versus

1.      Unitech Limited, Real Estate Division (Marketing), 5^th Floor, tower ‘A’, signature Towers, South City-I, NH-8, Gurgaon 122001 through its Managing Director/Authorized signatory.

 

2.      Unitech Limited, having its regd. Office at 6, community Centre, Saket, New Delhi-110017 through its Managing Director/Authorized signatory.

 

                                                .….Opposite Parties

CORAM:   Hon’ble Mr. Justice T.P.S Mann, President.

Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.S.S.Gill, Advocate for the complainant.

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

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts giving rise for the disposal of the present complaint are that he (complainant) booked a flat in the project of  SUNBREEZE to be developed by the Opposite Parties (O.Ps.) in Sector 69 Gurgaon. On 08.01.2010, he paid booking amount of Rs.4,65,000/- vide receipt No.001606. The flat No.0801 in Bock D-1 was allotted to him vide allotment letter dated 08.01.2010.  The total cost of the flat was Rs.54,31,370/-.   On  16.02.2010, buyer’s agreement was executed between the parties.   The flat was purchased under construction linked payment plan.  In total, the complainant had paid Rs.20,41,795/- to O.Ps.   As per clause 4.a (i) of terms and conditions of the buyer agreement, the O.Ps. were bound  to deliver the possession of the flat within 36 months  from the date of signing the agreement.     He visited the site of the project in the year 2015 and 2016, but, the construction was not started on the site,  whereas the possession of the flat was due on 15.02.2013. The O.Ps. failed to deliver the possession of the flat within stipulated period.  He requested the O.Ps. to refund the deposited amount alongwith interest, but, O.Ps failed to refund the deposited amount. Thus there was deficiency in service on the part of the O.Ps.

2.                Upon notice, opposite party appeared and filed the written statement denying all the allegations made by the complainant.   Preliminary objections about pecuniary jurisdiction, concealment of material facts, maintainability of complaint etc. were also raised and requested to dismiss the complaint.

                   On merits, the complainant bought the said unit for profits, however, since the complainant could not resell the same in open market due to slump in the real estate sector. The tentative time period of 36 months for handing over of the   possession was subject to force majeure circumstances. The complainant has not made any further payments after 21.06.2011.  The delay occurred due to reasons of Global meltdown of the economy world-wide wherein the Foreign Investors, as anticipated by the OPs, have refrained from any kind of investment in India. The Ops were facing extreme financial hardship due to recession in the reality market. OPs are entitled for reasonable extension of time in handing over of the possession in case of force majeure circumstances. Thus there was no deficiency in service.

3.                When the complaint was posted for recording evidence of the parties, complainant-Lieutenant Colonel (Retired) Amritbir singh Ghotra-CW-1 in his evidence has tendered the affidavit vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-6 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. had also tendered the affidavit Ex.OPW1/A that of Mr.Lalit Gupta and further tendered the documents Ex. OP-1 (resolution dated 19.06.2018) and  closed its evidence.

5.                The arguments have been advanced by Mr. S.S.Gill, the learned counsel for the complainant as well as Ms.Vertika H.Singh, the learned counsel for the opposite parties.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

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

7.                While unfolding the arguments it has been argued by S.S.Gill, the learned counsel for the complainant that as far as the executing the buyers agreement  (Ex.C-3) is concerned it is not in dispute.  It is also not in dispute that the basic price of the flat was Rs.54,31,370/- (including all taxes and charges).  It is also not in dispute that a total sum of Rs.20,41,795/- (Receipts Ex.C-1 and C-4 to C-6)  had been paid by the complainant to the  O.Ps.  As per the buyers agreement, the possession complete in all respect was to be delivered to the complainant by the O.Ps. on or before 15.02.2013.  O.Ps. already admitted in reply that delay occurred due to reasons of global meltdown of the economy world wide. However, inspite of the fact that amount of Rs.20,41,795/- stands paid. 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 alongwith interest, which he had already paid. 

8.                On the other hand, it has been argued by Ms.Vertika H.Singh, the learned counsel for the O.Ps. that the amount which the complainant had paid, has not been paid as per the repayment schedule.  There was a delay in making the payment of the amount.  The total cost of flat was Rs.54,31,370/-. An amount of Rs.33,89,575/- was still outstanding against the complainant.  The complainant had paid total amount of Rs.20,41,795/-  against the flat.  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 of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession.  Since there were a unavoidable circumstances and there was certain reasons which were beyond the control of the O.Ps., the possession of the flat could not be delivered to the complainant in time.  However on one pretext or the other the possession was not taken and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.Ps. were bound  to deliver the possession of the flat within 36 months  from the date of signing of agreement.  The answering O.Ps. have not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant. The delay occurred due to reasons of Global meltdown of the economy world-wide wherein the Foreign Investors, as anticipated by the OPs, have refrained from any kind of investment in India. The O.Ps. were facing extreme financial hardship due to recession in the reality market. OPs are entitled for reasonable extension of time in handing over of the possession in case of force majeure circumstances.  

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, flat was purchased by the complainant for which total amount of Rs.20,41,795/- (Twenty Lacs Forty One Thousand Seven Hundred and Ninety Five Only) had been paid.  The flat was  allotted to the complainant  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 36 months complete subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than nine years had expired, the possession of the flat has not been delivered by O.Ps.    As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps,  It is the normal trend of the developers/O.Ps.. that they would collect the hard earned money from the individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case.  When the project is not complete as such, this Commission is of the considered opinion that the complainant is well within their legal rights to get the refund of the amount of Rs.20,41,795/- (Twenty Lacs Forty One Thousand Seven Hundred and Ninety Five Only)  which he had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainant had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.              Hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.20,41,795/- (Twenty Lacs Forty One Thousand Seven Hundred and Ninety Five Only)  alongwith interest @ 12%  per annum from  the date of respective deposits till realization.   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 @ 15% per annum, for the defaulting period.   The complainant is also entitled  of Rs.1,00,000/- (One Lac Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.21,000/-  (Twenty One Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 25 and 27 of the C.P.Act  would also be attractable. 

 

January 16th, 2020          Ram Singh Chaudhary,             T.P.S.Mann,                                        Judicial Member                        President                                  

S.K.(Pvt.Secy)