M. SHREESHA, MEMBER        

This original Complaint has been filed by the Complainants under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”), against Unitech Reliable Projects Pvt. Ltd. (for short “the Developer”), seeking directions to the Developer to refund the principal amount paid by the Complainants, i.e. ₹55,34,253/-, with interest @ 18% p.a. from the date of payment till realization; pay a sum of ₹10.00 Lakhs on account of cost escalation since tenure has lapsed from the date of buyer’s agreement; refund the maintenance fees charged by the Developer; pay a sum of ₹5.00 Lakhs towards mental agony suffered by the Complainants; pay further sum of ₹10.00 Lakhs towards cost of litigation; and declare the Developer guilty of deficiency in service and unfair trade practice. 

The facts, in brief, are that the Complainants purchased an Apartment in a housing project called “Unitech Verve”, launched by the Developer at Plot No.11, Sector Pi-II, Greater Noida, District Gautam Buddha Nagar, Uttar Pradesh.  The cost of the Apartment was ₹57,46,779/-, out of which a total amount of ₹55,34,253/- was paid by the Complainants.  It is averred that the provisional date of allotment was 19.09.2007 and the promised date of delivery was 36 months from that date, which is “October, 2010”.  A brief description of the payment plan, as provided in the terms of agreement dated 04.10.2007 is detailed hereunder:

Sale Consideration Breakup

It is averred that the Complainants, on enquiry, discovered that the delayed possession was an offer without due completion of legal formalities as the Developer did not obtain Occupancy Certificate from the concerned authorities.  It is also found that though the possession was offered after four years of the scheduled date of delivery of possession, i.e. on 12.03.2014, amenities such as club house, swimming pool and other common facilities were not completed and no definite timeline was also given for completion of the same.  It is pleaded that by 14.10.2014 the Complainants paid an amount of ₹55,34,253/- by availing a housing loan from ICICI Bank for ₹46,32,528/- for a period of 20 years @ 11% interest p.a., which was required to be repaid by EMIs of ₹50,117/- per month.

As per Clause 4(a)(i) of the terms and conditions, unless the project is stalled on account of force majeure circumstances beyond the control of the Developer, the possession of the Apartment was to be delivered to the allottee(s) within 36 months from the date of signing of the agreement.  However, despite repeated requests, there was no response from the Developer in this behalf and hence the Complainants issued a legal notice dated 22.04.2017, seeking compensation for the unreasonable delay in handing over possession of the subject Apartment. 

It is pleaded by the Complainants that they had come to know of the submissions made by the Counsel for the Developer before the Hon’ble Supreme Court on 12.08.2016 in Civil Appeal No. 6044 of 2015, titled as “M/s Unitech Residential Resorts Ltd. v. Atul Gupta and Anr.”, stating that the Developer had no money to pay to the purchasers.  It is stated that the Complainants had booked the Apartment with the Developer to make a home for themselves but underwent mental agony and inconvenience only due to the deficiency in service and unfair trade practice adopted by the Developer.     

Hence, the Complainants have approached this Commission, seeking the afore-noted directions.      

Despite service of notice on 29.07.2017 and putting in appearance on behalf of the Developer, written version on its behalf was not filed within the maximum statutory period of 45 days, as contemplated under Section 13 of the Act, and hence its right to file the same was closed vide order dated 24.10.2017.  It is also pertinent to note that even thereafter the Developer did not file any Application for recalling of the said order and affording an opportunity to file its written version. 

Thereafter, on 18.12.2017 the Complainants filed their evidence by way of affidavit, reiterating the facts stated in the original Complaint.  They also filed certain Exhibits/Annexures.  Vide Annexure C1 (Exhibit – C1/A), the Complainants have filed the project brochure for development of the aforesaid project;  Annexure C2 (Exhibit C2/B) is a copy of the provisional allotment issued by the Developer, allotting Flat No. 2202, Floor-21, Tower-6 in ‘Unitech Verve’ for a total sale consideration of ₹53,75,124/-; a copy of the terms and conditions of the provisional allotment of Apartment is annexed as Annexure C3 (Exhibit C-3/C); a copy of the payment plan/schedule is annexed as Annexure C4 (Exhibit C4/D); a copy of the payment receipts/ledge regarding regular payments including the enhanced consideration amount, issued to the Complainants, are collectively marked as Annexure C5 Colly. (Exhibit C5/E Colly); a copy of the loan Agreement is annexed as Annexure C6 (Exhibit C6/F); a copy of the legal notice dated 22.04.2017 is annexed as Annexure C7 (Exhibit C7/G); and a copy of one of the newspaper articles dated 12.08.2016 regarding the statement of the Counsel for the Developer before the Hon’ble Supreme Court stating that it had no money to pay to house owners, has been annexed with the Complaint as Annexure C8 (Exhibit C8/H). 

The facts not in dispute are that out of the total sale consideration of ₹57,46,779/-, the Complainants have paid an amount of ₹55,34,253/-; that the promised date of delivery was October, 2010; that the project is incomplete; that the Complainants have taken a housing loan from ICICI Bank for an amount of ₹46,32,528/- @ 11% interest and are paying EMIs of ₹50,117/- per month; that till date the Developer has not obtained the Occupancy Certificate; and that possession of the subject Apartment has not been given with all the documentation, including Occupancy Certificate.  

This Commission in Emaar MGF Land Ltd. & Anr. V. Amit Puri (First Appeal No.250 of 2014), decided on 30.03.2015, has held that if the Developer fails to deliver possession of the allotted plot/flat within the stipulated time, the allottee is under no obligation to accept an alternative plot. At the cost of repetition, we may reiterate that in the event of Developer failing to deliver possession of the property within the stipulated period, for any reason, save and except a force majeure condition, agreed to between the contracting parties, an allottee cannot be compelled to accept an alternate site/plot and he would be within his rights to seek refund of the amount deposited with the Developer against allotment.  In that case, even compensation of Rs.1,50,000/- was also awarded for the delayed period of delivery. 

Learned Counsel representing the Complainants sought for refund of the amount deposited by them with interest @ 18% p.a.  However, regard being had to the undisputed fact that the promised date of delivery of possession was October, 2010, and till date the project is incomplete, as also considering the recent downtrend in the rates of interest and the erosion in the values of real estate in the market, we are of the considered opinion that the Complainants are entitled to the refund of the amount deposited by them with interest @ 10% p.a. from the respective dates of deposit till the date of realization.  In this regard, it would be apposite to refer to Clause 4.e of the terms and conditions of the allotment, which provides that “If for any reason the Developer is not in a position to offer the Apartment altogether, the Developer shall offer the Allottee(s) an alternative property or refund the amount in full with simple interest @ 10% per annum”. 

As the Developer is admittedly not in a position to offer possession of the subject Apartment or alternative property, we are of the considered view that Clause 4.e equally applies to the case of the Complainants and they are entitled to seek refund of the amount deposited.  Recently, this Commission while dealing with similar matters (Consumer Cases No. 311 to 316 of 2017), filed against the same Developer, placed reliance on the aforesaid Clause and directed it to refund the entire principal amount to the Complainants, along with simple interest @ 10% per annum.  We order accordingly.   

Further, we find it a fit case to award compensation of ₹1.00 Lakh for the mental agony suffered by the Complainants, having regard to the fact that the Complainants have availed loan from ICICI Bank @ 11% interest and the possession was not delivered for more than eight long years.  We also award litigation expenses of ₹10,000/-. 

In the result, this Complaint is partly allowed to the extent indicated above.  Four weeks’ time is granted to the Developer to comply with the order, failing which the amount to be refunded to the Complainants shall attract interest @ 12% p.a. from the respective dates of deposit till the date of realization.