Haryana

StateCommission

CC/79/2017

NISHANT SILVANIA - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

VINISH SINGLA

26 Nov 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.79 of  2017

Date of the Institution:13.12.2017

Date of Decision: 26.11.2018

 

1.      Nishant Silvania S/o Sh. Karam Chand, R/o Flat No.B-7, HSIIDC Apartments, Sector-14, Panchkula.

2.      Prashant Silvania S/o Sh. Karam Chand, R/o Flat No.B-7, HSIIDC Apartments, Sector-14, Panchkula.

 

                                                                   .….Complainants

Versus

 

Unitech Limited having its registered office at 6 Community Centre, Saket, New Delhi-110017 and its marketing office at Signature  Towers, Ground Floor, NH-8, South City-1, Gurgaon and local office at Sector-16, NH-1, Ambala (Haryana) through its Managing Director.

 

                                                .….Opposite Party

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Vinish Singla,  Advocate for complainants.

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

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          Complainants have filed the present complaint under the Consumer Protection Act, 1986 (In short “Act”) pleaded therein that complainants on 23.10.2012 booked a plot bearing No.0173 in Block No.00A having an area approximately 493.17 Sq. Mtrs. of opposite party (O.P) The basic sale price of the plot was Rs.62,48,464/-.  The complainants had deposited Rs.34,88,039/- including service tax to the O.P at different phases. Buyers agreement was executed between the parties on 17.11.2012. As per clause No.4 (a) of the agreement, the possession of the plot was to be completed within 18 (months) +3 months (grace period)=21 months therefrom, but, till date possession of the plot was not delivered to them.   The O.P has committed the unfair trade practices and also cheated the complainants and other innocent people also. The complainants requested the O.P to refund the amount but till date O.P did not paid any heed to the request of the complainants.  Hence, under the constraint circumstances the complainants had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.P to make payment of a sum of Rs.34,88,039/-  which had been deposited by the complainants alongwith interest @ 12% per annum from the date of entering into the agreement with the complainants from the date of deposited amounts, compensation of Rs.5,00,000/- for mental harassment, Rs.7,39,755/- towards penalty amount as per clause 4(C) of the agreement and Rs.75,000/- as litigation expenses.

2.                Notice of the complaint was issued against the O.P 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 the complainants are defaulter in making payments of installments and it is settled law that an allottee who is himself and defaulter of payments is barred to raise any kind of grievance regarding delay in possession. The complainants are simply investors who are looking only for making easy money in the release of the property, but could not do the same due to overall slump in the real estate sector.

4.                On merits, O.P issued various demand letters to them, but, of no avail.  O.P denied that they are liable to the interest on deposited amount to the complainants. Thus, there was no deficiency in service on the part of O.P. Other averments were also denied and requested to dismiss the complaint.

5.                When the complaint was posted for recording evidence of the parties, the complainants their evidence has tendered the affidavit Ex.CW1/A vide which they have reiterated all the averments taken in the complaint and further tendered the document Ex.CW-1 to ex.CW-11 and closed their evidence.

6.                On the other hand, O.P in its evidence tendered affidavit Ex.RA vide which they have reiterated all the averments taken in the written version and further tendered the document Ex.R-1 and closed its evidence.

7.                The arguments have been advanced by Sh.Vinish Singla, learned counsel for the complainants as well as Mrs. Vertika H. Singh, learned counsel for the opposite party. With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led by the parties during the proceedings of the complaint had also been properly perused and examined.

8.                As per the basic averment taken in the complaints 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 court as to whether the present complainants are entitled to get refund of the amount which they had already deposited alongwith the interest. 

9.                While unfolding the arguments it has been argued by Sh.Vinish Singla, Advocate, learned counsel for the complainants that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that an amount of Rs.34,88,039/- had been paid by the complainants to the O.P. As per the buyers agreement Ex.CW-3 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 complainants by the O.P. within 21 months i.e. on or before 16.08.2014 which includes three months grace period.

10.              The period within which, the possession of the plot was to be delivered had already expired and under these circumstances the complainants 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.P. that the amount which the complainants 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 them regarding balance payment, but, they had 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.  Under these circumstances, the refund cannot be granted alongwith interest and the complaint may be dismissed. 

12.             As per the submissions made by Sh.Vinish Singla, learned counsel for the complainants as well as Mrs. Vertika H.Singh, learned counsel for the opposite party 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.P had launched a housing scheme under the name and style of “Uniworld City” Sector-16, Ambala.  The complainants had opted to book a plot and initially, had deposited an amount of Rs.5,67,000/- thereafter, the buyer agreement EX.CW-3 was executed between the parties on 17.11.2012 and as per 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 18 months a grace period of 3  months has further been allowed.  As per the details of the payment mentioned in receipts alongwith complaint, the complaints had paid sum of Rs.5,67,000/- vide cheque No.052952 against the receipt No.1032200163 dated 03.11.2012.  Similarly, the complainants had further paid a sum of Rs.7,28,412/- vide cheque No.052956 against receipt No.1032200174 dated 07.12.2012, Rs.7,17,215/- vide cheque No.052957 against receipt No.1032200219 dated 23.01.2013, Rs.7,28,412/- vide cheque No.052961 against receipt No.1032200225 dated 01.03.2013 and Rs.7,47,000/- vide cheque No.052976 against receipt No.1032200253 dated 09.07.2013. It is apparently clear that complainant had deposited Rs.34,88,039/-  including service tax to the O.P whereas, the total price of the unit was Rs.62,48,464/-.  The buyers agreement was executed on 17.11.2012 and as per the clause 4(a) of the buyers agreement, the possession of the plot was to be delivered within 18 (months)+3 months (grace period)=21 months or on or before 16.08.2014.   Still the period of 21 months had already expired and while advancing the arguments, it has been fairly conceded on behalf of the O.P that the project is yet to be completed. The possession cannot be delivered under these constraint circumstances the O.P cannot be allowed to utilize or to enjoy the hardened money deposited by the complainants for getting the unit booked for their livelihood. It is the normal trend of the developers/O.P that they would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project for which the investors have invested their hardened money is not completed. The complainants had to wait more than period of 21 months for delivery of possession.  In such like matters the court has to be callous enough and the O.P. is to be dealt with severe hands and cannot be allowed to mis-utilizing the funds of the investors or to have a mis-directions of funds, which ultimately has been resulted into non-completion of the project and ultimately, it is the complainants or the investors who had to suffer.  As far as the payment schedule is concerned, it has been mentioned in the payment schedule which is available on page No.18 that before delivery of the possession, the applicants or the investors or the present complainants had to deposit 55% of the total cost or price of the unit and remaining 45% is to be paid at the time of offering the possession. In such circumstances, it is evidently clear that complainants had already paid a sum of Rs.34,88,039/- and as such the complainants are entitled to get the refund of the amount in all proposition, the possession of the dwelling unit cannot be delivered even in coming years and moreover, a period of more than four years have already been expired, hence the O.P. is directed to make a payment of Rs.34,88,039/- 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 complainants would further be entitled to get the interest @ 18% per annum, for the defaulting period. The complainants are also entitled of Rs.51,000/- for compensation of mental agony and physical harassment. In addition, the complainants are 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, 26^th, 2018                                                            Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

R.K.