Madhya Pradesh

StateCommission

CC/17/99

ANJALI SHARMA - Complainant(s)

Versus

UNITECH SVS BUILDCOM PVT. LTD. - Opp.Party(s)

SH.NEELESH KHARE

22 Dec 2018

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)

 

 

Consumer Complaint No.99/2017.

                  

                   Filed on : 31.7.2017.

                   Decided on :    22.12.2018.

 

Anjali Sharma

D/o Shri D. S. Sharma,

R/o House No.46, Tagore Nagar,

Khajurikalan Road, Piplani,

Bhopal (M.P.).                                               …. COMPLAINANT.

 

VERSUS

 

 

1.         Unitech SVS Buildcon Pvt. Ltd.,

            through Director / Partner,

            Regional Office, First Floor,

            Ultimate Arcade, Vishal Megamart,

            Kolar Road, Bhopal (M.P.).

 

2.         Main Registered Office,

            56 -58, Community Centre,

East Kailash,

New Delhi – 110 065                      …. OPPOSITE PARTIES.

 

BEFORE:

 

HON’BLE SHRI JUSTICE SHANTANU S. KEMKAR, PRESIDENT

 

HON’BLE SHRI S. D. AGARWAL, MEMBER

 

 

 

COUNSEL APPEARING FOR THE PARTIES :

 

SHRI NEELESH KHARE, LEARNED COUNSEL FOR COMPLAINANT.

 

SHRI AVNISH SAXENA, LEARNED COUNSEL FOR

OPPOSITE PARTIES.

 

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O R D E R

 

 

The following order of the Commission was delivered by S. D. Agarwal, Member  :

                        This complaint has been filed under Section 17 of the Consumer Protection Act, 1986.

 

2.                     Brief facts of the case as narrated by the complainant are that she on 9.9.2011 had booked a 3 BHK Flat (admeasuring 1430 sq. ft.) No. E-2, First Floor, Block No. ’E’, Tower – 2 in Residential Scheme ‘Unihomes’ situated at Bairagarh Chichli, Kolar Road, Bhopal floated by the opposite parties and deposited booking amount Rs.1,01,000/- on 9.9.2011.  Thereafter, she entered into an agreement with the opposite parties on 10.10.2011 to purchase the aforesaid flat.  As per agreement the total cost of the flat is Rs.25,05,293/-.  The complainant from 9.9.2011 till 24.10.2011 had paid total amount of Rs.23,48,054/-.  It is stated in the complaint that the complainant after availing loan from the finance company had paid 95% of the cost price.  As per agreement dated 10.10.2011 (Exhibit C-3) possession of the said flat was to be handed over within 24 months from the date of agreement.  According to complainant, after expiry of 24 months on 10.10.2013 the opposite parties have completed the said scheme up to 50% only and for a long time no construction activities had been undertaken.  Inspite of expiry of long 6 years, construction of the flat has not been completed and there is no probability of getting possession

 

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of the said flat in future too.  Looking to the conduct of the opposite parties regarding casual and callous attitude in construction work, the complainant has filed a complaint for refund of the amount deposited along with simple interest @ 18% p.a.  She claimed Rs.11,73,000/- towards interest of loan paid by her to the bank.  She also claimed Rs.5,00,000/- as compensation for mental agony and Rs.20,000/- as costs of litigation.  In support of complaint, the complainant has filed all the documents, agreement, details of payments of instalments to the opposite parties from time to time.  The complaint has also been supported by the affidavit.

 

3.                     The opposite parties resisted the complaint by filing their written statement stating that the complainant is not their consumers as the agreement executed by the complainant and the opposite parties existed under the provisions of Indian Contract Act, therefore, prima facie, no case is made out against them.  It is also stated in the written statement that the dispute can only be resolved through Arbitration Proceedings.  In detailed para-wise reply, they have made averments that delay caused in construction and delivery of possession is beyond control of the opposite parties, such as shortage in supply of raw material on account of suspension of mining activities in the State.  It is also averred in the written statement that some consumers did not comply with the agreement and failed to make payment of instalments.  As several blocks

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have to be constructed for which huge amount is required and several purchasers have not yet paid the amount under agreement, therefore, the delay has been caused in construction work.  It is also stated that the opposite parties are bound to pay Rs.5/- per sq. ft. of the area of the flat as compensation in the event of delay in handing over of possession beyond the period mentioned in the agreement.  The opposite parties on the ground mentioned above prayed for dismissal of complaint.

 

4.                     Learned counsel for the complainant argued that the opposite parties have not yet started the construction work at the site and there are no possibilities of handing over the possession of the said flat, completed in all respects, in near future, therefore, the opposite parties be directed to refund the entire amount deposited by the complainants, with interest @ 18% p.a. along with compensation and costs.

 

5.                     Learned counsel for the opposite parties drew our attention to the agreement and the written statement filed by them and argued that the delay caused in completing the project is beyond their control for which they cannot be held accountable.  He has also submitted that the opposite parties may take some more time to complete the construction and is under obligation to complete the flat in all respects.  He also argued that for not completing construction work of the flat in question, within the stipulated period mentioned in the agreement, the opposite parties are ready to compensate the complainant as per agreement.

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6.                     We have perused the complaint along with Annexures and affidavits, preliminary objections, reply filed along with documents and affidavits and rejoinder and considered the arguments advanced by the learned counsel for parties in depth.

 

7.                     On perusal we find from the record that the complainant has entered into an agreement with the opposite parties for purchase of Flat No.E- 02, First Floor, Tower – 02 in Block ‘E’, the possession of which was to be given within 24 months from the date of agreement on conditions that the payment of instalments would have to be made as per agreement.  On perusal we find that amount of Rs.23,48,054/- has been paid for purchase of flat by the complainant.  It is also evident from the record that the opposite parties have raised only structure, but for last so many years no further construction in the said structure has been done.  As averred by the opposite parties that for completing the project they require money and on completion they would be able to provide possession of the flat.  It can safely be presumed that the opposite parties are not in a position to complete the construction in near future.  It is also apparent from the agreement executed between the complainants and the opposite parties that the opposite parties are under obligation to hand over the possession of the completely constructed flat within 24 months from the date of agreement.  On the face of record, it is evident that the flat in question is still incomplete.  The opposite parties have also not filed completion certificate from the Competent

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Authority to substantiate that they are in a position to hand over possession of the flat to the complainant and the flat (dwelling) is ready and fit for habitation.

 

8.                     We also observe that the payment of cost of the flat in instalments have been regularly made by the complainant, therefore, the complainant cannot be held accountable for any breach of terms and conditions of the agreement.  Inspite of having received huge money for flat, the opposite parties failed to construct the flat allotted to the complainant in such a long period.  In nutshell the opposite parties not only committed deficiency in service but have committed unfair trade practice too.  In such circumstances, we find that the complainant cannot be made to suffer for indefinite period and she is entitled to receive back the amount deposited by her along with interest, suitable compensation and costs.

 

9.                     This Commission in a similar matter CC No.10/2016 (Manoj Kataria & Anr. Vs. SVS Buildcon Private Ltd. & Ors) decided on 27.6.2018 has allowed the complaint and directed the opposite parties for refund of the amount deposited along with interest, compensation and costs.

 

10.                   In view of the facts and circumstances of the matter, we are of the considered view that the entire amount paid by the complainant to the opposite parties be refunded with interest and compensation for mental agony and sufferings.  Though the interest rate on the paid amount, demanded by the

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complainant, is on higher side, but we consider it appropriate to award interest at the rate of 15% p.a. on the amount deposited, which is justified in the present facts and circumstances of the case.

 

11.                   In the result, the complaint is allowed with the following directions :

 

1. The opposite parties shall refund the total amount deposited to the complainant along with simple interest @15% p.a. from the date of payment received by opposite party from complainant till the date of refund of the full amount along with compensation.

 

2. The opposite parties shall pay Rs.50,000/- to complainant as compensation for mental agony and sufferings.

 

3. The opposite parties shall also pay cost of litigation to the complainant which is quantified at Rs.10,000/-.

 

12.              It is directed that all the payments be made by the opposite parties to the complainant within three months from the date of receipt of copy of this order, failing which the interest shall be payable on all the amounts at the rate of 18% p.a. till realization. 

 

(Justice Shantanu S. Kemkar)                                              (S.D.Agarwal)           

        PRESIDENT                                                                        MEMBER                

 

 

 

 

 

 

 

 

      Phadke