Delhi

StateCommission

CC/11/404

SAIRA MANSOOR & ANR. - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

22 Jul 2015

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                 Date of Decision: 22.07.2015

Complaint Case No. 404/2011

In the matter of:

1. Mrs. Saira Mansoor
2. Mr. Mansoor Ellahi

 

Both Residents of:-

101A, Ashram Chowk, Mathura Road

Behind NAFED, New Delhi-110014                               Complainants

 

Versus

 

M/s Unitech Ltd.

having its office at:

P-7, Sector 18, Noida-201301                                                         Opposite Side                                                              

       CORAM

 

SH N P KAUSHIK                          -                       Member (Judicial)

SH. S.C. JAIN                                            -                       Member

 

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

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

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1.       Facts of the complaint are not in dispute. The complainants Mrs. Saira Mansoor and Sh. Mansoor Ellahi filed the present complaint stating that M/s Unitech Ltd. (in short the OP) assured them that they were in the process of booking flats on ‘first come first served basis’.  OP had planned to raise a residential complex at Plot No. 6 Sector Pi-2, Alistonia Estate, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh.  The complainants filed an application with the OP and tendered a cheque for an amount of Rs. 4,52,877/-.  Complainant thereafter due to financial constraints received a home loan from HDFC Bank to the tune of Rs. 25 lacs approximately.  They also agreed to pay interest @ 11% p.a. to the HDFC Bank upon the loan amount.  Vide allotment letter dt. 08.05.2006, OP agreed to handover the physical possession of the flat to the complainants by 15.11.2008 as per clause 4.8 of the agreement.  Complainants were accordingly allotted an apartment bearing No. 1201 having a super area of 1693 sq. ft. on the 12^th floor of tower 22, Unitech Horizon at Greater Noida.  Total sale consideration of the flat was Rs. 47,08,187/-.  Complainants uptil 06.05.2008 paid an amount of Rs. 47,08,187/- to the OP.  Complainant did not receive any communication from the OP uptil the year 2009.  On their visit to the site, they found that the construction of the flat was still at an initial stage.  Complainants wrote letters dt. 04.02.2010 and 24.02.2010 to the OP requesting the OP to hand them over the physical possession of the flat in question.  Letters remained unreplied.  Complainant sent legal notice dt. 25.05.2011. It was again not replied to. Complainants have prayed for directions against the OPs to pay them an amount of Rs. 20,50,000/- towards compensation and directions to handover the possession of the flat. 
2.       In their written version OP raised a plea that the agreement entered into between the parties contained in it a clause of arbitration.  Disputes between the parties were required to be referred to the arbitrator.  Next contention raised by the OP is that the flat is located in Gautam Budh Nagar and the Courts of Gautam Budh Nagar alone had the jurisdiction to hear the matter.  It was also provided in clause 13 of the agreement.  Next contention raised by the OP is that the complainants wanted to invest in the project of the OP and were not the ‘consumers’. OP admitted having received an amount of Rs. 47,08,187/- from the complainants.  While admitting the agreement dt. 08.05.2006 entered into between the parties, OP contended that he was protected by a condition in the agreement that the allotment of the flat before 15.11.2008 was subject to, ‘force majeure’.
3.       Arguments have been addressed by Sh. Jalaj Aggarwal, Counsel for the Complainant and Sh. Rohit Aggarwal, Counsel for the OP. ‘Flat buyer agreement’ dt. 08.05.2006 entered into between the parties is not in dispute. Payment of an amount of Rs. 47,08,187/- by the complainant to the OP is also admitted. OP was required to handover the possession of the flat to the complainants on or before 15.11.2008.  Defence raised by the OP is that he was protected by the condition, ‘force majeure’. OP also relies upon Clause 4.c.(ii) of the letter of allotment providing for compensation, in case of delay in handing over the physical possession of the flat. The same is reproduced below:

“Clause 4.c.(ii) That the Company would pay charges @ Rs.5/- per sq. ft. per month for the period of delay in offering the delivery of the said Apartment beyond the period  indicated in clause 4.a.(i), save and except as for reasons beyond the reasonable control of the Company and Force Majeure events. These Charges would be adjusted at the time of Final Notice for possession.” 

4.       Nothing has been placed on record by the OP in support of his contention that there were compelling circumstances due to which he could not complete the construction of the flat.  Clearly the protection as claimed under ‘force majeure’ is not available to the OP.  Coming to the protection as per clause 4.c.(ii) of the agreement (reproduced above) the Hon’ble National Commission in the case of Sanjay Goel Vs Unitech Ltd. and Ors. in Complaint Case No. 344/2012 observed that even after a lapse of six years, the OPs had been offered peanuts for delaying the construction.
5.       Prices of real estate have gone high. Costs of construction too have escalated. Dream of the complainant of having their own home is shattered.  In the circumstances, we direct the OP to pay to the complainants as under:-

1. to refund the amount of Rs. 47,08,187/- alongwith interest @ 18% p.a. from the date of deposit.
2. to pay to the complainants compensation to the tune of Rs. 2 lacs for harassment, inconvenience and mental agony caused by the OP.
3. to pay to the complainants litigation charges to the tune of Rs. 25,000/-.

The abovesaid payments shall be made by the OPs to the complainants within a period of sixty days from the date of receipt of the orders failing which interest @ 24% shall be leviable.

6.       Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

(N P KAUSHIK)

MEMBER (JUDICIAL)

 

 

(S C JAIN)

MEMBER