Delhi

StateCommission

CC/1257/2015

RAJESHWAR KUMAR KHANNA & ANR. - Complainant(s)

Versus

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

12 Oct 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision:12.10.2018

 

Complaint Case No.1257/2015

 

1.       Rajeshwar Kumar Khanna,

Son of Late Shanti Sarup Khanna,

5H, Hastings Chambers,

7C, Kirna Shankar Roy Road,

Kolkata-700001.

 

2.       Mrs. Maria Khanna,

Wife of Mr. Rajeshwar Kumar Khanna,

5H, Hastings Chambers,

7C, Kirna Shankar Roy Road,

Kolkata-700001.

…. Complainants

 

Versus

 

1.       Unitech Limited,

Having its registered office at

6, Community Centre,

Saket, New Delhi-110 017.

 

2.       Ramesh Chandra,

Executive  Chairman/whole time Director,

C-41, Mayfair Gardens, Hauzkhas,

New Delhi-110006.

 

3.       Ajay Chandra,

          Managing Director,

          C-41, Mayfair Gardens, Hauzkhas,

          New Delhi-110006.

 

4.       Sanjay Chandra,

          Managing Director,

          C-41, Mayfair Gardens, Hauzkhas,

          New Delhi-110006.

 

5.       Deepak Jain,

          Secretary,

          150, New Surya Kiran Apartment,

          IP Extension, Patparganj,

          New Delhi-110 092.

 

6.       Sunil Keswani,

          CFO,

          407, Doble Storey,

          New Rajinder Nagar,

          New Delhi-110 060.

… Opposite Parties

 

CORAM

Justice Veena Birbal, President

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. Complainants are husband and wife. Complainant No.1 is a practicing advocate and complainant No.2 is a house wife. Being desirous of purchasing a residential apartment, they had had booked an apartment with OPs in their Group Housing Complex known as “Unihomes Phase II” which was to be developed by OP-1 on a leasehold plot bearing No.BHP0001, Sector 117, Noida, U.P. On 12.08.2012, complainants had filled a Booking Request Form and had made payment of Rs.4,82,000/- in favour of OPs by way of cheque as registration amount for the provisional allotment of an apartment.  OP-1 vide letter 16.8.12 informed the complainants that they have been provisionally allotted an apartment bearing No. 0403, 4^th Floor, Tower S2 in ‘Uni Homes PH-II’ admeasuring Super Area of 118.08 Sq.mtr. (1271 Sq.ft.) in Group Housing Complex “Unihomes PH-II” for total amount of Rs.50,91,670/- which was to be payable in instalments and subject to terms and conditions attached to the said letter.  Thereupon OP-I sent a letter dated 19.7.13 addressed to the complainants.  The said letter was received by the complainants on 29.7.13 at Calcutta wherein the Opposite Parties sent to the complainants two sets of allotment letters to be signed at all places marked (x) and one allotment letter was to be returned and one set was to be retained for the complainants’ records.  The payment schedule was also provided to the complainants as per which sale consideration of unit was Rs.50,91,670/-.  On receipt of demand letters of the OPs, the complainants had made a total payment of Rs.20,89,092/-. The aforesaid payments were received by OPs up to commencement of initial construction/development and no further construction at all was undertaken by OPs.  As per clause 5 of the allotment letter, possession of the apartment was to be given within 36 months and in case of any delay or in case the OPs were not in a position to offer the allotted apartment, in that event OPs had agreed to refund the amount with interest @ 10% p.a.
2. After making the aforesaid payment, complainants had written a letter dated 4.9.13 to OPs as to whether the OPs were qualified, in terms of conditions of allotment for further payment and asked about the state of construction at site. However, no reply was given by the OPs.  It is stated that after receiving payment of Rs.20,89,092/-, no further payment was demanded by the OPs.  Thereafter complainants had written various letters to OPs but no response was received. It is stated that only initial construction/development was done by the OPs.  Thereafter, no construction work was done also.  The period of 36 months has already lapsed and there is no expectation of completion of the construction or delivery of possession in the near future.  On 14.10.15, complainants informed the OPs that there is deficiency in service on their part.  The complainants further informed that they were not interested in taking possession of the flat as such requested for refund of money with interest.  OPs responded to the said letter and made frivolous allegations against the complainants vide letter dated 4.10.15 (wrongly mentioned as 4.10.15 instead of 4.11.15).  It is stated that OPs did not refund the money.  The complainants alleging deficiency in service and unfair  trade practice on the part of OPs filed the present complaint with the following prayers:

 

“a)  Award a sum of Rs.20,89,092/-  to the Complainants against the amounts paid to the Opposite Parties and or Opposite Party No.1 as mentioned in Paragraph 14;

 

b)   Direct the Opposite Parties to pay interest @ 18% per annum from the respective data of payment made by the Complainants to the Opposite Parties as mentioned in the paragraph 23 hereinabove amounting to Rs.10,81,808/- as on 31^st October, 2015 and further amounts of interest up to the date of payment;

 

c)   In addition, the Opposite Parties be directed to pay compensation to the tune of Rs.5,00,000/- for harassment, misrepresentation, misappropriation of funds and mental agony suffered by the Complainants at the hands of Opposite Parties;

 

d)   award costs of and incidental to this complaint be directed to be paid by the Opposite Parties to the Complainants;

 

e)   pass such further or other order or orders as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”

 

3. OPs filed reply to the aforesaid complaint wherein preliminary objection is raised that the complainants have not approached this Commission with clean hands.  OPs admitted booking of apartment with them by complainants in their complex “Unitech Unihomes Phase-II” in Sector 117, Noida, Uttar Pradesh.  It is also admitted that Provisional Allotment Letter dated 16.8.12 was also issued to the complainants whereby a flat, the details of which have already been mentioned above was allotted to complainants for a total sale consideration of Rs.50,916,70/-.  OPs have also admitted that as on date, complainants had paid Rs.20,89,092/- towards the sale consideration of the said flat.  It is also admitted that vide clause 5(A)(i) of the Allotment Letter, the possession of the flat was to be delivered within 36 months, however, the same was subject to force majeure circumstances or other similar circumstances beyond the control of the developer.  It is further stated that in case of delay on the part of OPs in handing over the possession, vide clause 5(C)(ii) of Agreement, the OPs has agreed to pay Rs.5/- per sq.ft. per month of the Super Area for the delay period in  handing over the possession to the complainants.  It is alleged that same is again subject to force majeure circumstances.
4. It is alleged that delay has been caused due to various restraint orders passed by National Green Tribunal regarding Ground Water Extraction for construction purposes.  Various Builders including the OPs had to depend on Noida/Greater Noida Authority for supply of water for construction and related purposes.  It is further alleged that delay in delivery of possession has been caused due to force majeure circumstances beyond the control of the Opposite Party such as agitation by farmers in Noida and Greater Noida and filing of nearly more than 500 Writ Petitions before Hon’ble High Court of Judicature at Allahabad, by farmers of various villages challenging the notifications of the Acquisition of land by state of U.P. and allotment to various builders in Noida & Greater Noida.  These writ petitions were filed challenging the notifications issued under Section 4 read with Section 17(1) & 17(4) & section 6 of Land Acquisition Act, 1894 in respect of land acquired by State of U.P. regarding 41 villages of Greater Noida and 24 villages of Noida.  Some portion of the land of project UNIHOMES, UNIHOMES-II was also subject matter of the writ petitions.  It is also alleged that OP has faced major disruptions in doing construction activity due to strike by farmers whose lands were acquired by the Noida authority as such the circumstances were beyond the control of the OPs.  It is alleged that delay has been caused due to force majeure circumstances.  It is further stated that despite all these problems faced by the Opposite Party, the Opposite Party as part of ethical business practice is paying compensation to the customers for the delayed period @ Rs.5/- per sq.ft. per month in terms of Article 5(C)(ii)  of the Agreement by way of adjustment at the time of offer of possession.  It is, therefore, prayed that a frivolous complaint has been filed and complaint is liable to be dismissed.
5. Complainants have filed rejoinder wherein stand taken by OPs is denied and complainants have reiterated the facts as are stated in the complaint. 
6. Complainant No.1 filed his own affidavit reaffirming his case on oath.  Complainant No.1 has proved on record. Copy of Power of Attorney dated 2.4.11 executed by the complainant No.2 in his favour i.e. Ex-CW-1/1. Copies of (1) the Application Form dated 12.8.12 (2) copy of cheque No.004153 dated 12.8.12 for Rs.4,82,000/- and (3) Copy of receipt dated 16.8.12 given  by OP to the complainants i.e. Ex-CW-1/2 to CW-1/4.  Copy of the letter dated 16.8.12 of OP along with the Allotment Letter i.e. Ex-CW-1/5. Copy of the Provisional Allotment Letter dated 16.8.12 inter alia enclosing Payment Plan i.e. Ex-CW-1/6.  Copy of the letter dated 19/27.7.13 received by complainants on 29.7.13 i.e. Ex-CW-1/7 (Colly). Copy of Bill No. 25918, 136655 and letter No.145901 dated 22.8.12, 29.1.13 and 22.8.13 of OP to complainants and copies of five cheques of the complainants to OP and five receipts issued by the OP i.e. Ex-CW-1/8 (Colly).  Copy of letter dated 4.9.13 addressed to OP i.e. Ex-CW-1/9.  Copies of the letters of demand and letters sent by complainants enclosing the DDs/cheques for the payment to OPs i.e. Ex-CW-1/10 (Colly).  Copy of letter dated 14.10.15 sent by complainants to OP No.1 i.e. Ex-CW-1/11.  Copy of letter dated 4.11.15 sent by OPs through its Counsel to complainants i.e. Ex-CW-1/12 and copy of statement of calculation of interest upto October, 2015 i.e. Ex-CW-1/13. 
7. OP did not file evidence despite opportunities given.  Ultimately right of OP to file evidence was closed vide order dated 19.7.17. The said order has not been challenged by OP. 

8.           We have heard Counsel for the parties as well as gone through the written arguments.

9.           It is admitted position that the complainants had booked a flat with OPs and vide Allotment Letter dated 16.8.12, Ex-CW-1/5, Apartment No.0403 on Floor No.04 in Tower H2, having Super Area of 118.08 Sq.mtr. (1271 Sq.ft.) in Group Housing Complex “Unihomes PH-II” was allotted to the complainants having consideration amount of Rs.50,91,670/-.  It is also admitted position that complainants had paid Rs.20,89,092/- to the OPs towards the payment of flat and thereafter no payment was demanded by OPs.  It is also admitted position that only initial construction work was done and thereafter no construction was done by the OPs. It is also admitted position that as per clause 5(A)(i), the possession of the flat was to be given by OPs within 36 months subject to force majeure circumstances i.e. beyond the control of the developer.

10.         OPs have alleged force majeure circumstances which have already been discussed in the written statement.  However, nothing has been placed on record to substantiate the same as evidence of OPs was closed vide order dated 19.7.17.  In any event, the aforesaid circumstances raised by OPs have been rejected by National Commission in other projects of OPs at Noida. Reliance is placed on the judgement of Richa Aggarwal and Anr. vs Unitech Hitech Developers Ltd., 1 (2017) CPJ 216 (NC); S.N. Mohanty vs Unitech Hitech Developers Ltd., 1 (2017) CPJ 550 (NC); Krishna Swami Subramanium vs Unitech Hitech Developers Ltd., III (2017) CPJ 682 (NC).

11.         In the present case, delay has not been substantiated in any manner by the OPs.  From the un-rebutted evidence it is proved that OP has received Rs.20,89,092/- from the complainants.  Having received a substantial amount, OP has not completed the construction.  As per complainants, there is hardly any construction at the site.  In the absence of any evidence or explanation, failure to comply with the stipulation of delivery of possession in the Buyers Agreement, in our view it stands established that OP has committed deficiency in service and has also indulged in unfair trade practice. 

12.         As regards the compensation, clause 5D of the Buyer Agreement is relevant.  The said clause is reproduced as under:

 

“If for any reason the Developer is not in a position to offer the allotted Apartment, the Developer shall offer the Allottee(s) an alternative property or refund the amount paid by the Allottee(s) with simple interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.”

 

13.         On reading the above, it is clear if for any reason, OPs are not in a position to offer possession of the flat, OPs shall refund the amount with simple interest @ 10% per annum without any further liabilities.

14.         In view of above discussion, we dispose of the complaint with the following directions:

 

1.         The OPs shall refund the entire amount of Rs.20,89,092/- paid to it by the complainants within 8 weeks from today along with compensation in the form of interest on the aforesaid amount @ 10% p.a. from the date of each payment till the entire amount along with simple interest @ 10% p.a. in terms of this order is refunded.

 

2.         The OPs shall pay a sum of Rs.25,000/- as cost of litigation to complainants.

 

 

 

15.         A copy of this order as per statutory requirements be sent to the parties free of charge.  Thereafter the file be consigned to record room.

 

(Justice Veena Birbal)

President

 

(Salma Noor)

Member