NCDRC

NCDRC

CC/3075/2017

SUNIL KUMAR SHIVHARE - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

MR. UDAY PRAKASH YADAV

25 Mar 2019

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
CONSUMER CASE NO. 3075 OF 2017
 
1. SUNIL KUMAR SHIVHARE
...........Complainant(s)
Versus 
1. UNITECH LTD.
Through its managing Director 6 Community Center Saket,
New Delhi-110017
...........Opp.Party(s)

BEFORE: 
 HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER

For the Complainant :
Mr. Uday Prakash Yadav, Advocate
For the Opp.Party :
Mr. Babanjeet Singh Mew, Advocate

Dated : 25 Mar 2019
ORDER

JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          Mrs. Anita Raj Kapoor and Mr. Raj Kapoor Booked a residential apartment with the OP in a project namely ‘Unitech Cascade’ at Greater Noida and vide allotment letter dated 16.08.2005, apartment no. 0103 in Tower 3 of the said project was allotted to them for a consideration of Rs.37,48,980/-.  The said allotment was later purchased by the complainant and the allotment was endorsed in his name on 19.04.2007.  As per clause 4(a)(i) of the terms and conditions of allotment, the possession of the apartment was to be delivered to the allottees by 31.03.2008, subject to force majeure circumstances.  The possession having not been delivered despite a sum of Rs.37,48,980/- having been paid to the OP, the complainants are before this Commission seeking refund of the said amount with compensation etc.

2.      The OP did not file its written version despite service and therefore, its right to file the written version was closed vide order dated 19.04.2018.

3.      I have heard the learned counsel for the parties and have considered the affidavit by way of evidence filed by the complainant. 

4.      The affidavit and the documents filed by the complainant prove the allotment made to the predecessor-in-interest of the complainant as well as the transfer of that allotment in favour of the complainant.  The affidavit and the document also prove the payment alleged to have been made by the complainant and/or his predecessor-in-interest to the OP towards sale consideration of the said flat.  Since the possession of the apartment was not even offered to the complainant, he is entitled to refund of the amount paid by him to the OP alongwith appropriate compensation. 

5.      The learned counsel for the complainant states that the complainant who is present in the Court today, is restricting his claim to the refund of the principal amount paid by him to the OP alongwith compensation @ 10% per annum in terms of clause 4.e which reads as under:

4.e    Default:

If for any reason the Company is not in a position to offer the Apartment altogether, the Company shall offer the allottee(s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.         

6.      In CC No. 60 of 2016, Surender Chauhan & Anr. Vs. M/s Unitech Limited & Anr. decided on 10.02.2017, the complainants had booked a residential flat with the OP in this very project namely ‘Unitech Cascades’.  Since the OP failed to deliver possession of the said flat, they approached this Commission seeking refund of the amount paid by them with compensation.  The complaint was resisted by the OP primarily on the following grounds:

          (i)      There was major disruption in the construction activities due to agitations and Dharans by farmers whose land was acquired by the Noida Authority and the said agitations had resulted in slackening of the availability and the supply of raw-material.

         (ii)      Vide Notification dated 14.9.2016 issued by Ministry of environment and Forest (MOEF), Central Govt. imposed certain restrictions and prohibitions on new projects or activities based on their potential environmental impact unless prior environmental clearances were obtained. The procedure for obtaining the approvals and sanctions led to delay in the construction schedule.

        (iii)     There was acute shortage of labour, water and other raw-material.

         (iv)    Writ Petitions were filed by the farmers before the Allahabad High Court challenging the acquisition of land by the State of Uttar Pradesh.

         (v)    Some of the towers in this project have already been constructed whereas construction is going on in the remaining towers. As regards Tower-2 in which flat allotted to the complainants was to be located, it is alleged that external and internal plaster are going on in the said tower.

          It was also alleged that in view of clause 4.c of the terms and conditions of allotment in the event of delay, the allottees entitled only to the agreed compensation of Rs.5/- per sq.ft. of the super area per month.

          All the aforesaid contentions were rejected by this Commission and the OP was directed to refund the entire principal amount alongwith compensation in the form of simple interest @ 10% per annum. 

7.      The complaint is therefore, disposed of with the following directions:

          (i)     The OP shall refund the entire principal amount of Rs.37,48,980/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum with effect from the date of each payment till the date of full refund.       

           (ii)      The OP shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

          (iii)     The payment in terms of this order shall be made within three months from today.

 

 
......................J
V.K. JAIN
PRESIDING MEMBER

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