Delhi

StateCommission

CC/844/2016

RENU BHATIA - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

NEERAJ BHATIA

19 Aug 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 19.08.2019

Complaint Case No. 844/2016

In the matter of:

Renu Bhatia

B-1A/19A, Janak Puri

New Delhi-110058                                                        ….....Complainant

 

Versus

 

M/s. Unitech Ltd.

Through its Managing Director/Authorized Signatory,

6, Community Centre

Saket, New Delhi-110017                                               …..Opposite Party

 

                                                                  

CORAM

 

Salma Noor, Presiding Member

 

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

2.             To be referred to the reporter or not?                                                                                                     

 

 

Salma Noor: Presiding 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 booked one Flat with OP vide allotment letter dated 22.08.2009. Complainant was allotted Unit no. 0104 in Tower F-4, with super area of 766 sq. ft. in Unihomes Sector 117, Noida, U.P., with a total sum of Rs.24,23,709/-. The Flat Buyer’s Agreement (in short the ‘Agreement’) was executed between the parties on­­­­ 08.12.2009. In view of the Flat Buyer Agreement OP was supposed to handover the possession of the flat to the complainant within 24 months from the execution of the Flat Buyer Agreement that means the delivery of the flat ought to have been delivered to the complainant by the year 2010. The complainant had paid Rs.23,47,563/- to the OP. It is alleged that on 14.12.2009 the complainant has taken Rs.19 lac loan from Andhra Bank. It is alleged that the complainant has paid the said huge amount after taking loan from Andhra Bank and still she is paying the EMIs towards the said loan. It is further alleged that in-spite of receiving the huge amount from the complainant the OP has not handed over the actual physical possession of the said flat to the complainant as promised. Thereafter, the complainant had approached the OP company but they have not given any ear to the repeated demands and requests of the complainant for her flat and complainant has run from pillar to post. It is alleged that after her all efforts and demands for her taking possession of her flat were failed, complainant has sent a legal notice dated 31.12.2014 to the OP which was duly served. It is alleged that neither OP had given any reply to said legal notice nor acted upon it. It is submitted that OP has pocketed the hard earned money of the complainant with the dishonest and malafide intention which is causing mental agony and harassment to the complainant.
3. In view of the aforesaid facts alleging deficiency in service on the part of OP, complainant has filed the present complaint with the following prayers:

1. To direct OP to return the amount of the complainant with interest @18% p.a. compounded quarterly for the period Jan 2012 – June 2016 on the amounts paid by the complainant.
2. A sum of Rs.5 lacs for the damages for the time, energy, conveyance charges and mental agony.
3. Possession of my flat at the earliest.

 

4.  Notice of the complaint was issued to the OP. AR of the OP appeared and received copy of the complaint on 10.01.2017, but failed to file written statement within the prescribed period and the right of OP to file written statement was closed on 31.05.2017. OP did not challenge the said order.
5. Complainant filed evidence by way of affidavit and written arguments. OP has not filed written arguments despite given sufficient opportunities.
6. The complainant, Mrs. Renu Bhatia, has filed her own evidence by way of affidavit wherein the facts stated in the complaint case have been reiterated on oath and has also exhibited on record the allotment letter dated 22.08.2009, Ex.CW-1/1; demand letters and receipts, Ex.CW1/2; copies of relevant papers of loan, Ex.CW-1/3; legal notice dated 31.12.2014, Ex.CW-1/4.
7. Arguments of Husband of the complainant are heard and material on record is perused.
8. As noted above, the evidence of complainant has gone unrebutted and unchallenged. Complainant has paid Rs.23,47,563/- to the OP and unit in question is not handed over to the complainant till date. OP has retained hard earned money of the complainant. In terms of clause 5 A(i) of the Allotment Letter, the OP had promised to deliver the possession of flat to complainant within 24 months subject to force majeure circumstances.
9. In the absence of any evidence/explanation for failure to comply with the delivery of possession, it is established that OP has not completed the construction and is not in a position to deliver the possession of the flat to the complainant despite receiving an amount of Rs.23,47,563/- from the complainant and has committed deficiency in service and also indulged in unfair trade practice.
10. Clause D of the Allotment Letter deals with the inability of the OP in case they are unable to offer possession. Clause D is reproduced as under:
    •  

If for any reason the Developer is not in a position to offer the allotted Apartment, the Developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with Simple Interest @10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

 

11. 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 @10% p.a. (from the date of payment by the purchaser) without any further liabilities. There is no dispute 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. 
12. At the time of arguments it is stated by the husband of the complainant that his mother and mother in law of the complainant is suffering from Cancer and she is in urgent need of money. Therefore, now she is not interested in possession of the flat and wants refund of his money with reasonable interest.
13. It has been held by the National Commission in catena of judgments that when possession of the allotted flat is not delivered within the specified time, the allottee is entitled to refund of amount paid, with reasonable interest thereon from the date of payment till the date of refund. Reliance is placed on the judgments of National Commission titled Subodh Pawar vs. M/s Ireo Grace Realtech Pvt. Ltd. & Ors. dated 24.09.2018 in CC No.1998/2016 and Amit Arora v. M/s Ireo Grace Realtech Pvt. Ltd. dated 27.03.2019 in CC No.696/2017.
14. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442, it is held by Hon’ble Supreme Court that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
15. In view of the above discussion, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.23,47,563/- paid to the complainant within forty five days from the date of receipt of the order alongwith simple interest @12% from the respective dates of payment of instalments to the complainant.

 

16. A copy of this order be sent to the parties free of costs as per rules. Thereafter file be consigned to Record Room.                   

 

 

 

(Salma Noor)

Presiding Member