Delhi

StateCommission

CC/676/2016

M/S RAJEEV SETH (HUF) - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

S.K. GANDHI

14 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 14.02.2019

Complaint Case No. 676/2016

In the matter of:

M/s Rajeev Seth (HUF)

Through its Karta

Mr. Rajeev Seth

R/o-A-76, First Floor,

(Left hand Side) Malviya Nagar,

New Delhi-110017                                                            ….....Complainant

 

Versus

 

Unitech Ltd.

6, Community Centre

Saket, New Delhi-110017

                                                     …..Opposite Party

 

                                                                  

CORAM

 

JUSTICE VEENA BIRBAL                 -                       PRESIDENT

SALMA NOOR                                    -                       MEMBER

 

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

2.             To be referred to the reporter or not?                                                                                                     

 

 

SALMA NOOR            -           MEMBER

 

1. Present complaint is filed under Section 17 of the Consumer Protection Act 1986 (in short the ‘Act’).
2. Brief facts of the case are that the complainant is a HUF and through its karta Mr. Rajeev Seth has applied for allotment of a flat in the project of OP known “Crestview” Wildflower Country Gurgaon through an application dated 01.10.2011, by depositing a sum of Rs.7,00,000/-. Thereafter, OP issued an allotment letter dated 01.10.2011 bearing Ref:UL:RED:NRCV/00040 alongwith the payment schedule. As per the said payment plan, OP raised two demand letters dated 01.10.2011, for an amount of Rs.7,91,965/- (to be paid on 20.11.2011) and 31.12.2011 for an amount of Rs.8,35,957/- (to be paid on 09.01.2012). Complainant made the said payments without delay. It is stated that Buyer’s Agreement (in short, “the Agreement”) was executed between the parties on 03.12.2012 by which Apartment No.1001 in Block B2 in the Crestview housing complex was allotted to the complainant. As per clause 4a of aforesaid Agreement possession of the said apartment was to be handed over to the complainant within 36 months from execution of the Agreement. It is stated that earlier to the signing of the Agreement, it was agreed by the OP on 01.10.2011 that the said project would be completed within the period of 36 months and relying upon the earlier representation, the complainant had applied for allotment of an apartment. It is alleged that after 14 months of application for allotment, the Agreement was executed whereby 36 months for delivery of the apartment was given from the date of execution of said Agreement. It is alleged that the same was an unfair trade practice. It is stated that on the said assurances of OP complainant had signed the Agreement as he had already paid significant amount to the OP and had no other option. According to the complainant OP was bound to hand over the said flat within 36 months from assurance of the allotment letter/date of application i.e. 01.10.2011. It is further stated by the complainant that even as per the Agreement possession was to be delivered within 36 months with 03 month grace period as provided by clause 4(a) of the Agreement which expired on 02.03.2016.
3. It is stated that despite various representations of OP, till date no steps have been taken by OP to begin the construction of the ‘Crestview Project’. Complainant has stated that OP has committed a clear breach of contract and unfair trade practice. It is stated by the complainant that out of total sale consideration, he has already paid Rs.23,27,922 /-. It is also stated by the complainant that he was in constant touch with the OP, but no satisfactory answer/reply, regarding the handing over of possession was given. Thereafter complainant issued a legal notice dated 03.03.2016 calling upon OP to refund the amount of Rs.23,27,922/- alongwith interest @18% p.a. but no reply was received from OP. 
4. Alleging deficiency in service and unfair trade practice on the part of OP, the complainant has filed present complaint with the following  prayers:-

 

1. Direct the respondent to pay to the complainant as sum of Rs.23,27,922/- together with interest at the rate of 18% per annum calculated with effect from the date on which such amount was paid till the realization of the same by the respondent,
2. Direct the respondent to pay the complainant a sum of Rs.10,00,000/- towards mental agony and harassment suffered by it at the hands of the respondent,
3. Direct the respondent to pay the complainant a sum of Rs.55,000/- towards cost of litigation.

 

5.  Notice of the complaint was issued to the OP. AR of the OP appeared on 18.01.2017 and received copy of the complaint, but failed to file written statement within the prescribed period and the right of OP to file written statement was closed on 01.08.2017. OP did not challenge the said order.
6.  Complainant has filed evidence by way of affidavit and written arguments. OP has also filed his written arguments.
7.  The complainant Sh. Rajeev Seth has filed his own affidavit by way of evidence  wherein the facts stated in the complaint case have been reiterated on oath and has also exhibited on record receipt dated 01.10.2011, Ex.CW-1/1; allotment letter dated 01.10.2011 and payment schedule, Ex.CW-1/2(Colly); demand letters dated 01.10.2011 and 31.12.2011, Ex.CW-1/3 and Ex.CW-1/4 respectively; copy of receipt No.0464 dated 21.11.2011 for payment of Rs. 7,91,965/-, Ex.CW-1/5;  copy of receipt No.0836 dated 09.01.2012 for payment of Rs.8,35,957/-, Ex.CW-1/6; Buyers Agreement dated 03.12.2012, Ex.CW-1/7; copy of legal notice dated 03.03.2016 alongwith registered AD card, Ex.CW-1/8(Colly).
8.  OP in its written arguments has submitted that the commission does not have the pecuniary jurisdiction to try and adjudicate the present complaint in lieu of decision rendered in Ambrish Kumar Shukla & Ors. v. Ferrous Infrastructure Pvt. Ltd. as the basic cost of the residential flat is of Rs.74,31,498/-.
9.  We have carefully gone through the complaint. The complaint is filed on 22.06.2016. If the interest @12% p.a. is calculated on the amount paid and added to agreed price it would not exceed Rs.1 crore. Ld. Counsel for OP has not given any calculation as to how it would exceed Rs.1 crore. Thus this legal objection of the OP has no substance and the complaint is very well within the pecuniary jurisdiction of this commission.
10. From the unrebutted evidence of complainant on record, it stands established that OP had to deliver possession within the stipulated period of 36 months plus grace period of 03 months from the date of signing of the Agreement, however, OP has failed to do. As per complainant even the basic construction of the project has not been started. After waiting for aforesaid period to hand over possession, complainant sent a legal notice dated 03.03.2016 to OP seeking refund which was also not replied by the OP.
11. Complainant has proved on record having paid Rs.23,27,922/-, despite that OP failed to construct and deliver the possession of the said flat. In the absence of any evidence/explanation for failure to comply with the delivery of possession, we are of the considered view that OP has not completed the construction and has not delivered possession of the flat and has committed deficiency in service and also indulged in unfair trade practice.
12. Clause 4.e. of the Agreement deals with the inability of the OP in case OP is unable to offer possession.

“Clause 4.e

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.”

 

13. 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 @12% p.a. (from the date of payment by the purchaser) without any further liabilities. There is no dispute about the fact that OP has failed to construct and deliver the possession of the flat till today. The complainants cannot be expected to wait for possession of the flat for an indefinite period. 
14. In view of the above discussion, the complaint is allowed with the following directions:

 

The OP shall refund the entire amount of Rs.23,27,922/- paid to the complainants within forty five days from the date of receipt of the order alongwith simple interest @12% from the respective dates of payment of installments upto the date of payment to the complainant.

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

 

(Justice Veena Birbal)

   President

 

 

                                                                                                        (Salma Noor)

                                                                                                              Member