Delhi

StateCommission

CC/11/126

NITIN SAXENA & ORS. - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

13 Jan 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

                                              Date of Arguments:13.01.17

     Date of Decision:17.01.17

 

Complaint No. 126/11

 

In the matter of:

1.         Nitin Saxena

            s/o Late Dr. N.K.Saxena

2.         Mrs. Nirmala Saxena

            w/o Sh. N.K Saxena

            All R/o M-8, Green Park Extention

New Delhi-110016.                                                             ……Complainants

 

                                                            Versus

 

M/s Unitech Limited

Regd. Office

6, Community Centre

New Delhi-110017.                                     ………Respondent/Opposite party

         

CORAM

 

O.P. Gupta, Member (Judicial)

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

2.      To be referred to the reporter or not? Yes

 

                                            JUDGEMENT

          Initially the complaint was filed by three persons namely Nitin Saxena, Ms. Nirmala Saxena and Ms. Niti Saxena. Complainant No. 1 and 2 are husband and wife.  Complainant No. 1 and 2 booked a flat No. S-101, Block H, Second Floor and flat No.F-101, Block H, First Floor in South City-II project, Gurgaon.  Complainant No. 3 booked unit No. G-101, Block No. H, Ground Floor in the same project.

2.      OP assured that their project was approved from major nationalized banks including PNB but the fact remained that the same has not been approved by PNB till date.  Complainant No. 1 and 2 could not get housing loan financed from PNB because OP could not get its project approved from PNB.

3.      Complainant No. 1 and 2 had paid major installments as and when demanded by OP.  They had written so many letters, reminders including letter dated 14.02.11 but OP has not given the desired information. At the time of booking OP assured that interest shall be applied in the account of complainant only when project is approved by national bank but OP has illegally applied interest in the account of the complainants without getting its project approved from PNB.  Interest is exorbitant, excessive and without any basis.

4.      Further OP assured that payments of service tax and other charges was payable by the complainant at the time of final notice of possession as per construction linked installment plan.  But OP had been demanding service tax and other charges from the complainant illegally.

5.      Complainant No. 1 had been working with DGS Realtors Pvt. Ltd., New Delhi and OP made complaint against him with his employer.  On the basis of the same employer of complainant No. 1 terminated his service.  The complainant served legal notice 19.03.11 and 1.04.11 but no reply was received.

6.      Complainant No. 3 took housing loan from private bank and repaid all the dues of OP.  OP charged excess, illegal, unnecessary and forcible interest of Rs. 72,000/- upon complainant No. 3.  Complainants were shocked to receive notice dated 04.05.11 from Ops counsel which was replied on 07.05.11.  Hence this complaint for directing OP not to charge interest, service tax and other charges from the complainant, directions to OP to get their project approved from PNB/Nationalised Bank, direct OP not to cancel allotment of flat of complainant No. 1 and 2, direct OP to pay Rs. 72,000/- with interest @ 22% per annum to complainant No. 3, direct OP to pay compensation of Rs. 20,00,000/- with interest @ 24% per annum for adopting mal trade practices and for inflicting financial, mental pain and agony, direct OP to provide statement of account, direct OP to refund interest and consideration amount in respect of selling terrace portion alongwith second floor illegally, pay litigation expenses of Rs. 50,000/-.

7.      OP filed WS raising preliminary objection about the territorial jurisdiction.  OP has demanded installment and to cancel the allotment in case of default.  The complainants have defaulted in payment of installment and are putting blame on the OP.  Complainants have defaulted dues to the tune of 1.5 crore.  Sole intention in filing the complaint is to pressurize the OP not to cancel the allotment and not to make any demand of outstanding amount. No cause of action has arisen in favour of complainant.  On merits it is stated that complainant No. 1 and 2 jointly booked plot No. F-101 and S-101 had, denied having given any assurance about the approval of project from Nationalized Bank including PNB.  It is upto the buyer to finance its purchase by whatever means.  The developer has no role in it.   Statement of account dated 14.03.11 has already been supplied for all the floors.

 8.     The complainant filed his application on 16.04.12 for permission to place on record reply received under RTI Act from Sr. Town Planner, Govt. of Haryana stating that OP has been selling independent floor against policy of Haryana Govt. illegally and deliberately and making the title defective. 

9.      Complainant filed rejoinder disputing the contents of WS and reaffirmed their own case.

10.    Complainant No. 1 filed evidence by his affidavit.  OP did not file its evidence.  The cost of Rs. 1000/- was imposed on OP vide order dated 16.01.15 for adjournment for filing evidence by affidavit.  OP  was directed to pay Rs. 10,000/- in consumer welfare fund for adjournment for filing evidence vide order dated 21.11.15.  OP failed to deposit the said amount. Hence Ops evidence was closed vide order dated 17.08.16. 

11.    Complainant filed written arguments.  It filed additional written arguments on 30.09.16.  They wanted to point out the changed circumstances such as OP promised to give possession within 24 months from booking in Aug., 2010, they failed to do the same.

12.    OP failed to file written arguments and consequently on 17.08.16 the case was listed for oral arguments.

13.    In the meantime the complainant No. 3 moved application for withdrawal of the complaint with liberty to file fresh complaint before National Commission as her claim was more than Rs. One crore..  The request was allowed vide order dated 16.05.2016.  Hence now the complaint remains on behalf of complainant No. 1 and 2 only.

14.    I have gone through the material on record and heard the arguments.  The complainant No. 1 submitted during the course of oral hearing that they wanted refund of the money with reasonable interest.  They have submitted that they cannot be compelled to accept the possession after more than six years.  Booking was done vide agreement dated 09.10.10.  Complainant No. 1 and 2 jointly booked flt No. F-101 Block H, Ist Floor vide agreement dated 09.10.10.  Complainant No. 1 booked flat No. S-101 vide agreement dated 24.03.11, complainant No. 3 i.e. Swati Saxena booked flat No. G-101 Block H vide agreement dated 9.10.10.  The complaint does not recite as to how much amount has been paid by complainant No. 1 and 2.  No receipt of payment has been filed.  Equally guilty is OP who has not cared to mention how much amount has been paid by the complainants.

15.    On the above facts and circumstances , the complaint is disposed of with directions to the OP to refund the amount deposited by complainants No.1 and 2 alongwith interest @ 12% per annum from the date of deposit till the date of refund.  OP shall also pay compensation of Rs. 1,00,000/- for both the complainants i.e. complainant No. 1 and 2.

          Copy of the order be sent to both the parties free of cost.

 

 

 

 (O.P.GUPTA)

MEMBER(JUDICIAL)

 

 

03.03.2017

Item No.32

C-126/11

Present :      Sh. Nitin Saxena, AR of Complainant-1 & 2.

                  

          This is an application for review. The complainants have sought two reliefs.  One is regarding correction of name of father of complainant-1 is N.K. Saxena instead of N.K. Sharma, the other correction is in the name of husband of complainant-2 from Nitin Saxena to N.K. Saxena.  The third is deletion of name of complainant-3 in judgement dated 17.01.2017. The judgement already contains recital in para-13 that complainant-3 moved an application for withdrawal of complaint with liberty to file fresh complaint before National Commission as her claim is more than one core.  The request was allowed vide order dated 16.05.2016 and complaint remained on behalf of complainant-1 & 2 only.  Hence, request to this extent is allowed. Necessary corrections done in the original judgement under signature and date of today.  

 

Amended copies of judgement be sent to both the parties free of cost.

Rest of the application amounts to reviewing the order which is not permissible as per the decision of Hon’ble Supreme Court in Rajeev Hitender Pathak Vs. Kashinath Karekar 2011 (9 SCC 541).  To that extent, the application is dismissed.

 

          Copy of today orders be given Dasti to the complainant as requested.

 

(O.P. Gupta)

Member (Judicial)

Bench-2

 

 

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