Haryana

StateCommission

CC/210/2017

RAMESHWAR SINGH - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

G.S.BHANDAL

14 Nov 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                             Consumer Complaint No.     210 of 2017

                                      Date of Institution                  17.11.2017

                                       Date of Decision                             14.11.2018

 

 

 

 

 

 

 

 

1.      Rameshwar Singh son of Sh. Devi Singh, resident of C-1/652, First Floor, Palam Vihar, Gurgaon-122001.

 

2.      Usha Singh wife of Sh. Rameshwar Singh, resident of C-1/652, First Floor, Palam Vihar, Gurgaon-122001.

                                      Complainants

Versus

 

M/s Unitech Limited, Signature Towers, Ground Floor, NH-8, South City I, Gurgaon, Haryana.

Opposite Party

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mrs. Manjula, Member.

                  

                                                                                                               

 

Argued by:          Shri G.S. Bhadal, counsel for the complainants

                             Ms. Vertika H Singh, Advocate for the opposite party.

 

                                                   O R D E R

 

NAWAB SINGH J, (ORAL)

 

          The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) has been filed by Rameshwar Singh and his wife Usha Singh-complainants averring that on August 18^th, 2009 they booked an apartment with Unitech Limited-opposite party (for short ‘Developer’). The price of the Apartment was Rs.47,25,320/-. They were allotted Apartment No.0503, 05^th Floor, Tower B1, Sunbreeze Complex, Sector 69, Gurgaon. Flat Buyers Agreement dated October 14^th, 2009 was executed.  As per Article 4.a.i) of the agreement, the Developer proposed to offer possession of the Apartment within a period of 36 months from the date of signing of the agreement, that is, on or before October 14^th, 2012. In all, the complainants paid Rs.43,26,838/- to the Developer. The construction has not been started by the Developer. The complainants prayed that the Developer be directed to handover the possession of the apartment or to refund the deposited amount, that is, Rs.43,26,838/- alongwith interest at the rate of 10% per annum alongwith compensation and litigation expenses.

2.      The opposite party, in its written version, resisted the complaint on various grounds, including its maintainability. The developer in preliminary objections averred that this Commission does not have the pecuniary jurisdiction to try/adjudicate the complaint because the complainants are not “Consumer” within the meaning of Section 2(1)(d) of the Consumer Act, as the apartment in question has been booked for resale/commercial purpose. The overall recession and financial problems, which were not foreseen, contributed to the delay in the completion of the project. The complainants cannot seek refund of the deposited amount.   

3.      The complainant Usha Singh in her evidence appeared as CW1 and produced the following documents:-

1.	Buyer’s Agreement	Exhibit C-1
2.	Receipt dated 25.07.2013 of Rs.196174/-	Exhibit C-2
3.	Receipt dated 25.07.2013 of Rs.6062/-	Exhibit C-3
4.	Receipt dated 25.10.2013 of Rs.196174/-	Exhibit C-4
5.	Receipt dated 25.10.2013 of Rs.6261/-	Exhibit C-5
6.	Receipt dated 11.06.2014 of Rs.70148/-	Exhibit C-6
7.	Letter dated 31.07.2015 sent by developer to the complainant	Exhibit C-7
8.	Legal Notice dated 17.09.2016	Exhibit C-8

 

4.      The developer, examined Lalit Gupta-OPW1, Authorized Representative and produced resolution dated June 19^th, 2015 Exhibit OP-1.

5.      Indisputably, the complainants applied for apartment with the developer. Buyer’s Agreement (Exhibit C-1) was executed between the parties on October 14^th, 2012. Apartment No.0503, 05^th Floor, Tower B1, Sunbreeze Complex, Sector 69, Gurgaon was allotted to the complainants. The complainants paid Rs.43,26,838/- to the developer.  As per clause 4 a (i) of the agreement, the possession of the flat – apartment was to be given within thirty six months of signing the agreement, that is, by October 14^th, 2012 but the developer failed to do so and it was certainly a case of deficiency in service.  Except for a bald plea in the written version that the apartment had been purchased by the complainants with a view to sell it on premium and make profits, Developer has not said even an additional word in this behalf, leave alone leading evidence to prove the assertion.  Lalit Gupta-OPW1 has admitted that the possession of the apartment has not been offered to the complainants.  Clause 4.e ‘Inability to offer Floor’ of the Buyer’s Agreement (Exhibit C-1) reproduced as under:-

          “If for any reason, the Developer is not in a position to offer the Apartment, as agreed herein, the Developer may offer the Apartment Allottee(s) alternative property or refund the amount paid by the Apartment Allottee(s) in full with interest @ 10% per annum without any further liability to pay any damages, charges or compensation.”

6.      A reading of the aforesaid clause shows that if for any reason the developer is not in a position to offer the allotted apartment, developer would offer an alternative property or to refund the amount paid by the allottee in full with 10% interest per annum.  The developer neither offered alternative property nor refund the deposited amount.

7.      In view of above, the complaint is allowed. The opposite party is directed to pay Rs.43,26,838/- (Rupees Forty Three Lakh Twenty Six Thousand and Eight Hundred Thirty Eight Only) to the complainants, alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for rendering deficient services and Rs.10,000/- towards litigation expenses. The entire amount be paid by the developer within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the developer fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both.              

 

Announced 14.11.2018

(Manjula) Member

(Nawab Singh) President

U.K