Delhi

StateCommission

CC/1461/2016

PAWAN KUMAR VARMA - Complainant(s)

Versus

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

ISHU KANWAL

02 Jul 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 02.07.2019

Date of Decision :08.07.2019

COMPLAINT NO.1461/2016

In the matter of:

 

Pawan Kumar Verma,

B-1449/115, Durga Puri,

Street No.3, Shahdara,

• ………Complainant

 

Versus

 

1. Unitech Ltd.

6. Community Centre, Saket,

New Delhi-110017.

 

Also at:

UGCC Pavillion,

Sector 96 Expressway,

Noida-201305. UP.

 

2. ICICI Bank Ltd.,

ICICI Towers,

Bandra Kurla Complex,

Bandra (East), Mumbai-490051.……..Opposite Parties

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

 

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. The case of the complainant is that OP-1 approached him in respect of project named UN Homes 3 at plot no.GH001, Sector-113, Noida, UP. It was represented that possession would be delivered within 30 months from date of booking. The project was pre approved by OP-2 and complainant could avail loan facility from said bank. He booked three bed room flat for total price of Rs.41,50,352/- on 07.01.12. OP-1 issued allotment letter of the even date and provisionally allotted flat no.0606, Tower-A2, super area 110.74 sq. mtr.
2. The complainant made payment details of which are given in para 7 of the complaint.  The total amount paid is Rs.11,01,504/-. He availed loan facility of Rs.25 lakhs out of which Rs.21,44,789/- was disbursed to OP-1 from time to time, on behalf of complainant. OP-1 undertook to OP-2 to refund the money paid to it, in the event of cancellation of booking without any demur. He has paid substantial amount of money to the OP-2 as pre EMI interest / interest on the loan. As on 10.07.16 he had paid Rs.7,30,140/- to OP-2.
3. When delivery of possession was not in sight he made rounds to the office of the OP-1. The real estate price had been ever surging. His hope was getting dashed in view of several litigations pending against OP-1. He suffered accident which resulted in the fracture of his limb bone. He was left with no job due to said accident. He terminated booking vide letter dated 04.06.16 and asked for refund of money. OP-1 is guilty of deficiency of services. Hence this complaint for directing OP-1 to refund to OP-2, entire loan amount disbursed by it. OP-2 may be directed to close the loan account of complainant as per banking norms. OP-1 be restrained from forfeiting any amount while refunding the loan amount to OP-2 as booking was terminated by him due to fault and breach of OP-1. He prayed for directing OP-1 to pay Rs.11,01,504/- paid by him to OP-1, pay interest @18% per annum, directing OP-1 to pay Rs.7,30,140/- paid by him to bank as pre EMI, interest and principal, pay interest on the said amount @18% per annum, direct OP-1 to pay Rs.15 lakhs as damages for illegal and unlawful  act, direct OP-1 to pay Rs.55,000/- as litigation charges.
4. Both the OPs were served for 02.05.17. OP-1 failed to file WS within statutory period and its right to file WS was closed vide order dated 01.11.17.
5. OP-2 moved an application under Order 7 Rule 11 CPC. The said application was allowed vide order dated 20.12.18 and OP-2 was deleted from the array of parties.
6. The complainant has filed his own affidavit in evidence, alongwith rejoinder to WS  of OP-2.
7. OP-1 has filed written arguments though there is no WS on behalf of said OP. The counsel for OP-1 stated that pleas raised by him are legal in nature and can be considered without WS. He has taken the plea of arbitration clause which is not sustainable in view of decision of Hon’ble Supreme Court in Emaar MGF Land Ltd. vs. Aftab Singh 2019 (I) CPJ 5 SC. It has taken objection of territorial jurisdiction by saying that the property is located in Gautam Budh Nagar. Again the same is not tenable because registered office of OP-1 is in Delhi. It has taken plea of force majeure. But it has not pleaded any fact to prove force majeure
8. I have gone through the material on record and heard the arguments addressed by counsel for complainant. The counsel for the complainant took him through copy of letter dated 07.12.12 from OP-1 to OP-2 which is at page-41 of the complaint. Clause B thereof reads as below:-

“As already agreed by the party, in the event of cancellation of allotment of the above flat by the company for whatsoever reasons, the company shall refund all the amounts received over and above the earnest money and other dues, which are forfeitableas per allotment and terms and conditions letter, directly to ICICI Bank and thereafter ICICI Bank shall release their lien on the above flat”.

9. Booking of flat, payment of the amount by complainant to OP-1 is not in dispute. It is not a case of the OP that it completed the flat within the agreed period or offered possession. Thus it is not entitled to forfeit any amount.
10. OP-1 is directed to refund the amount paid by complainant to it alongwith interest @9% per annum from the date of respective payments till the date of refund. OP-1 is also directed to pay the amount received by it from OP-2 within 30 days from the receipt of copy of this order. OP would also pay EMIs paid by complainant to OP-2, to complainant.
11. Copy of the order be sent to both the parties free of cost.
12. File be consigned to record room.

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)