Delhi

StateCommission

CC/701/2016

RISHI KAPUR - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

VIKRAM KUMAR

05 Feb 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Decision: 05.02.2019

 

Complaint Case No. 701/2016

 

In the Matter of:

       

Rishi Kapur

S/o Sh. Vinod Kumar Kapur

R/o H. No. 1043/D/9

Ward No.8, U.G. Floor

Mehrauli, New Delhi-110030.                                         ……Complainant

 

Versus

 

M/s Unitech Limited

Office at 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?                   Yes

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

 

SALMA NOOR, MEMBER

1.        The complainant booked a residential Flat on 12.09.2011 in the project of the OP namely “Anthea Floors”, wildflower country, Gurgoan, for a total consideration amount of Rs.84,49,274/- (Rupees Eighty Four Lacs Forty Nine Thousand Two Hundred Seventy Four Only) under construction link payment plan offered by OP. At the time of booking, the complainant was assured that the possession of the flat would be delivered within three years. The complainant was issued an allotment letter dated 12.09.2011 wherein he was allotted a Flat No.0052 (2 Bed Rooms) in Block No.E at “Anthea Floors”, Wildflower Country, Gurgoan. Thereafter, the Buyers Agreement was executed on 22.10.2011, wherein it was stated that possession of flat will be delivered within 36 months from signing of Buyers Agreement i.e. by 22.10.2014. The complainant, as per the demand of the OP from time to time in respect of the allotted Flat, deposited a sum of Rs.36,59,406/- till 20.12.2013 on the assurance that possession of the said flat would be delivered to the complainant before October, 2014. However, the OP failed to deliver the flat as promised.
2.        It is stated by complainant that upon visit at the project site of OP in the month October, 2014 he found that not even the skeleton of the building in which the residential flat has been allotted by the OP is ready. It is alleged that OP has miserably failed to raise even basic construction of the project where the residential flat of the complainant is situated. It is also alleged that the OP did not have sanctions and approvals to construct the above allotted flats. The complainant sent a legal notice dated 05.06.2016 through his Advocate. The same was duly served upon the OP, however, no response was given by the OP nor any amount deposited with the OP have been refunded till date.
3.         In view of the above facts, complainant alleging ‘deficiency in service’, and ‘unfair trade practice’ filed the present complaint whereby prayer is made to direct the OP to refund a sum of Rs.36,59,406/- deposited by the complainant alongwith interest @18% p.a., compensation of Rs.20,00,000/- on account of sufferance, hardship, Physical pain and mental agony and legal expenses of Rs.50,000/-.
4.         Notice was issued to the OP for filing written version within 30 days from the date of receipt of the copy of the complaint. AR of the OP appeared on 06.02.2017 and stated that the copy of the complaint has not been delivered and the same was supplied that day. However, no written statement was filed and the right of OP to file written statement was closed on 03.08.2017. The said order has not been challenged by the OP.
5.         The complainant filed evidence by way of affidavit and written arguments and the OP has also filed written arguments.
6.         The complainant Sh. Rishi Kapoor has filed his own affidavit as evidence wherein he has reiterated the contents of complaint case on oath and has placed on record Allotment Letter dated 12.09.2011, Ex.CW-1/1, copy of receipts no.0000692 and 000693 both dated 12.09.2011, Ex.CW-1/2 and Ex.CW1/3, copy of letter dated 09.10.2011 Ex.CW-1/4; Buyer’s Agreement dated 22.10.2011; Ex.CW-1/5, copy of demand letters dated 20.10.2011 to 20.12.2013, Ex.CW-1/6 to Ex.CW-1/8; copy of duly acknowledged receipts issued by OP Ex. CW-1/9 to Ex.CW-1/13; copy of bank statements of payments made by complainant, Ex. CW-1/14 and EX. CW-1/15; copy of legal notice dated 05.06.2016, Ex.CW-1/16 and copy of postal receipt, Ex.CW-1/17.
7.         In its written arguments OP has submitted that this 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/s. Ferrous Infrastructure Pvt. Ltd. As the basic cost of the residential flat is of Rs.84,49,274/-.
8.         We have carefully gone through the complaint. The complaint is filed on 29.07.2016. 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 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.
9.         From the unrebutted evidence of complainant on record, it stands established that OP had to deliver possession within the stipulated period of 36 months from the date of signing of Flat Buyer’s Agreement which the OP has failed to do. The evidence on record establishes that the complainant visited the site in the month of October, 2014 he found that not even the skeleton of the building in which the residential flat was supposed to be allotted to him was there. As per complainant even the basic construction of the project has not been started. After waiting about two years the complainant sent a legal notice dated 05.06.2019 to OP for seeking refund which was also not replied by the OP.
10. Complainant has proved on record that the paid Rs.36,59,406/-, 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.
11. Clause 4.e. of the Allotment Letter deals with the inability of the OP in case they are unable to offer possession. Clause 4.e. is reproduced as under:

Clause 4.e

“That if for any reason whatsoever, the Developer is unable to offer the allotted Floor to the Purchaser(s), as agreed herein, the Developer will offer the Purchaser(s) an alternative property in any complex developed, underdeveloped or proposed to be develop in the surrounding area/projects and if o alternate property is available the Developer will refund the amount paid by the Purchaser(s) in full with simple interest @12% per annum from the date of payment(s) by the Purchaser(s). The Developer shall not in the event of such an eventuality be liable to pay any other damages, charges or compensation.”

 

12. 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 laible 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 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. 

 

 

 

13. In view of the above discussions, the complaint is allowed with the following directions:

The OP shall refund the entire amount of Rs.36,59,406/- 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 instalments to the complainant.

 

14. Copy of the order be sent to the parties free of costs as per rules.

File be consigned to Record Room.         

 

                                                                                                                                                                              (Justice Veena Birbal)

                                                                                                                                                                                       President

•  

 

 

(Salma Noor) Member

Member

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