Delhi

StateCommission

CC/266/2016

MR. JAYANT KUMAR TREHAN - Complainant(s)

Versus

UNITECH LTD. & ANR. - Opp.Party(s)

VRINDA KAPOOR

13 Sep 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:13.09.2018

 

 

Complaint Case No.266/2016

 

 

Shri Jayant Kumar Trehan,

S/o Late Shri J.R. Trehan,

R/o E-146, First Floor, Saket,

New Delhi -110017.

…Complainant

 

Versus

 

1.       The Managing Direcotr,

M/s. Unitech Ltd.,

6, Community Centre,

Saket, New Delhi – 110017.                                          

 

ALSO AT:

UNITECH HOUSE L-BLOCK

SOUTH CITY –I, GURGAON- 122001.                  ….Opposite Party

 

 

CORAM

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

 

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

    

2. To be referred to the reporter or not?

 

 

 

Justice Veena Birbal, President

 

 

1. Mr. Jayant Kumar Trehan, the complainant herein had booked  an apartment in the project of the OP, namely Unitech Cascades, situated at Plot No.8, Sector Pi-II (Alistonia Estate) Greater  Noida for the purpose of setting up residence of his daughter, namely, Ms. Vandita Trehan so that she could live in that property. It is stated that vide Allotment Letter cum Agreement dated 05.12.2005, the complainant was allotted an apartment/flat No.1003, 10^th Floor, Tower-04 in Unitech Cascades, at Greater Noida. It is stated that the total sale consideration of the aforesaid apartment was Rs.36,33,480/- with a covered car parking.  It is stated that the complainant has already paid a sum of Rs.38,20,273/- i.e. over and above the total costs of the apartment. It is alleged that as per the said Agreement, possession of the apartment was to be handed over to the complainant by 30.04.2008. However, the possession was not delivered. The complainant visited the site of construction and found that no construction work was being carried out by the OP at the site. Thereafter, complainant starting making enquiries about the status of allotment, however, no response was given to her. It is alleged that OP failed to meet commitment and construction has not been completed as agreed. It is stated that the complainant had made several inquiries/calls to the OP regarding construction/possession of the flat but complainant did not receive anything except the false assurances given by the OP. It is further stated that the complainant has been harassed by the OP by not carrying out the construction within the stipulated time and not responding to the letters of the complainant. It is stated that after expiry of 08 years from the agreed date of possession and almost 11 years from the date of application possession has not been given to the complainant. It is also stated that the Tower -04 is still not completed. It is alleged that OP has been wrongfully gained by misrepresentation. The complainant has suffered lot of harassment, humiliation and mental agony at the hands of OP. Alleging deficiency in service and unfair trade practice on the part of the OP, complainant has filed the present complaint with the following prayers:

    

1. Direct  the opposite party to immediately refund the principal amount of Rs.38,20,273/- paid by the complainant to the opposite party towards the consideration of the apartment booked by the complainant with the opposite party.

 

2. Direct the opposite party to pay compound interest at the rate of 18% p.a. on the principal amount of Rs.38,20273/- paid by the complainant to the opposite party from the agreed date of possession i.e. 30.04.2018 till the date of actual payment/realization/refund of the consideration amount to the complainant.

 

3. Direct the opposite party to pay to the complainant a sum of Rs.15,00,000/- towards the damages and compensation for the delay of 08 years caused by the opposite party and still not giving the possession of the apartment and the consequential losses thereof.

 

4. Grant cost of litigation to the complainant..

 

 

2. OP was served with the notice of the complaint. AR of the OP had appeared. However, no written statement was filed by the OP within the stipulated period as such the right of the OP to file written statement was closed vide order dated 31.01.2017. The said order was not challenged by the OP.
3. In support of his case, complainant has filed evidence by way of his own affidavit alongwith the written arguments. Complainant in his affidavit has reiterated the contents of complaint case on oath.  He has proved on record Allotment cum Agreement dated 05.12.2005 i.e.  Exb. CW -1/1. He has also proved on record copy of payment receipts i.e. Ex-CW-1/2(Colly), copy of statement of account issued by the OP acknowledging the payments made by the complainant i.e. Ex-CW-1/3.  He has deposed about the amount paid to OP i.e. Rs.38,28,275/- and has deposed that same is over and above the agreed sale consideration. He has also deposed that possession of the flat was to be handed over  by 30.04.2008.  Complainant has stated on oath that delay in handing over the possession is an unfair trade practice on the part of OP.  He has further stated in the affidavit that the complaint be allowed and relief prayed be granted.
4. There is no evidence on behalf of OP as their right to file written statement was closed vide order dated 31.01.2017.
5. From the un-rebutted evidence, it stands proved that vide Allotment cum Agreement dated 05.12.2005 Ex. CW -1/1 OP has allotted Apartment No.1003 on 10^th Floor, Tower -04 having a super area of approx 143.06 sq. mtrs i.e. approx. 1540 sq. ft. in Unitech Cascade, Plot No.8, Sector –Pi-II, Greater Noida for a total consideration of Rs.36,33,480/-. Complainant has proved that vide receipts Ex. CW -1/2 (Colly) OP has received in all Rs.38,20,273/- for the flat in question but has failed to deliver the possession of the said apartment to complainant as per terms and conditions of the Allotment cum Agreement Letter Ex. CW -1/1.  substantial period of 10 years has already elapsed from the agreed date of possession. One is not expected to wait indefinitely. In the absence of any explanation for failure to handover possession as per the stipulated date, we hold that the OP has committed deficiency in service and has indulged in unfair trade practice.
6. Ld. Counsel for the OP has referred to Clause 4(e) of the Allotment cum Agreement letter between the parties i.e. Exb. CW-1/1, which deals with compensation to be paid if OP is not in a position to offer possession of Apartment to Allottee.  The relevant clause is reproduced as under:

 

“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 any damages or any other compensation on this account.”   

 

7. On reading the above, it is clear that if OP is not in a position to offer the possession of the Apartment, OP shall refund the amount alongwith simple interest @ 10% p.a.  In the present case, OP has failed to deliver the possession of the Apartment after the expiry of stipulated period.  The allottee is not expected to wait for possession of the Apartment for an indefinite period.  Thus, OP is directed to refund the amount deposited by the complainants along with 10% interest per annum.
8. In view of above discussion, the present complaint is allowed and OP is directed to refund the entire amount of Rs.38,20,273/- to the complainants within 8 weeks from today alongwith compensation by way of simple interest @ 10% per annum from the date of receipt of each payment till realization. OP shall also pay Rs.25,000/- as cost of litigation to the complainants.
9. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. 

              File be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member