Haryana

StateCommission

CC/304/2017

SOM DUTT GOYAL - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

ANURADHA GUPTA

05 Mar 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.304 of  2017

Date of the Institution:12.05.2017

Date of Decision: 05.03.2019

 

Sh.Som Dutt Goyal s/o Sh. Lte Sh.Hans Raj Goyal R/o H.No.504, Sector 38-A, Chandigarh.

                                                                   .….Complainant

Versus

 

1.      M/s Unitech Ltd. through its Managing Director, Signature Towers, 5^th Floor, NH-8, South City-1, Gurugram.

2.      M/s Unitech Ltd. through its Authorised Signatory Regd. Office 6, Community Centre, Saket New Delhi-110017.

 

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

                    Mrs.Manjula, Member.

 

Present:-    Mrs.Anuradha Gupta, Advocate  for the complainant.

Mrs.Vertika H.Singh, Advocate counsel for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          File taken up today as 04.03.2019 was holiday.

2.      The brief facts given rise for the disposal of the present complaint are that he was a subsequent purchaser, who purchased flat No.D-2-09-0902 measuring 1545.00 sq. ft in Sunbreeze Project, Sector 69, Gurgaon from the O.Ps.   The first allottee  namely Anil Kumar Bharti was allotted a flat by OP .  Apartment allotment agreement was signed between the parties on 19.02.2010 for total consideration of Rs.55,56,370/- and out of which Anil Kumar Bharti paid Rs.20,41,795/- to O.Ps.  The first allottee executed agreement to sell in favour of  complainant on dt. 16.04.2013. The complainant made a total payment of Rs20,41,795/- and stepped into his shoes. O.ps. charged transfer fee of Rs.1,73,600/-.  As per clause 4(a) of the agreement, the possession of the apartment was to be delivered within 36 months from the date of signing the agreement i.e. 19.02.2010 and again on 16.04.2013, but, the builder did not take any construction from 19.02.2010 till today.  Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to make payment of a sum of Rs.20,41,795/- which had been deposited by the complainant alongwith interest  @ 14% etc. as prayed for.

3.                The opposite parties contested complaint by filing reply taking plea objections that the complainant has bought the said unit from the earlier allottee on 15.05.2013. The period of 36 months as per agreement expired.  He bought this unit after the expiry of the period of possession as per the buyers agreement dated 19.02.2010. The complainant purchased  above-said unit with open eyes.  As per the agreement, the developer will be liable to pay compensation @ Rs.5/- per sq. ft. per month of the super area of the apartment for the delay in offering the possession. He has levelled false and frivolous allegations against the O.Ps. just to extort money from the O.ps.  Letter dated 31.07.2015 the construction of Block D-2 shall be duly completed by 31.12.2016 and possession of the apartment with occupancy certificate shall be made by 28.02.2017.  The complainant was not entitled for any compensation as prayed for.  Thus, there was no deficiency in service on the part of the O.ps.

4.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered  his affidavit Ex.CA and documents Ex.C-1 to Ex.C-9 and closed his evidence.

5.                On the other hand in order to rebut the evidence led on behalf of the complainant, the O.Ps. had also tendered the affidavit Ex.RA that of Mr. Lalit Gupta authorised representative and also tendered documents Ex.R-1  and closed his evidence.

6.                The arguments have been advanced by Mrs.Anuradha Gupta the learned counsel for the complainant as well as Mr.Vertika H.Singh, the learned counsel for the opposite parties.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

7.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainant is entitled to get refund of the amount which he has already deposited alongwith the interest? 

8.                As per the admitted facts, the complainant had purchased the apartment from Anil Kumar Bharti.   Apartment allotment agreement dated 19.02.2010 is not disputed. He made a total payment of Rs.20,41,795/- alongwith transfer fees.  As per the buyers agreement, the possession of the unit was to be delivered within a period of 36 months from the date of execution of the agreement.    However as per the buyers agreement, the possession of the unit was to be delivered within a period of 36 months, the construction of the unit could not be completed as a result thereof, the possession could not be delivered.  

9.      Learned counsel for the O.Ps. pointedly argued that the complainant was subsequent purchaser.  However, he purchased the above said unit after expiry of the buyers agreement.  However, this contention is not legally sustainable as the investors even if a subsequent purchaser, he stepped into the shoes of the previous buyers.  Since the amount has been invested and the unit was booked for residential purpose also, even if the buyer agreement was expired, the terms and  conditions for purchasing the property does not make any legal impediment for passing  the order for refunding the amount already paid by the complainant.

10.      The developers or O.Ps. cannot be put to survive on the basis of the amount of the investors.  It is the normal trend of the developers/O.Ps. that they would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case.  When the project is not complete as such, this Commission is of the considered opinion that the complainant is well within his legal rights to get the refund of the amount of Rs.20,41,795/-  which he had already deposited with the O.ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within its permissible period and under the constraint circumstances, the complainant had to knock the door of this Commission even for seeking refund of the amount.  In such like cases,  the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the investors and hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.20,41,795/-alongwith interest @ 12%  per annum from the date of respective deposits and till realization.   Hence this question is answered in affirmative and the amount is directed to be paid within a period of three months from the date of passing this order failing which the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

March 05th, 2019       Mrs.Manjula                           Ram Singh Chaudhary                                                        Member                                  Judicial Member                                                                   Addl.Bench                            Addl.Bench               

S.K.