Delhi

StateCommission

CC/483/2015

MR. GAURAV KUMAR & ANR. - Complainant(s)

Versus

M/S UNITECH LTD. - Opp.Party(s)

21 Dec 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:21.12.2017

 

Complaint Case No.483/2015

 

In the matter of:

 

1. Mr. Gaurav Kumar

S/o Pashuram Kumar

 

2.   Mrs. Richa Kumar

      W/o Mr. Gaurav Kumar

 

R/o 1400, Wahington Memorial Drive,

Apt-205, Saint Cloud Minnesota USA,

Pin 56301.

                        ....Complainants

 

Versus

 

M/s. Unitech Ltd.

Through its Managing Director

Having its Registered Office at:

6, Community Centre, Saket,

New Delhi-110017.

 

Also having its office at:

1. UGCC Pavillion, Sector 96,

Expressway, Noida,

U.P. 201 305.

….….....Opposite Party

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

 

Salma Noor, Member

1. This is a complaint under Section 12 of the Consumer Protection Act 1986 (in short “the Act”) filed by the two complainants related to each other being husband and wife respectively.
2. Brief facts of the case are that Sh. Gaurav Kumar and his wife, Mrs. Richa Kumar complainants herein had applied for allotment for a flat from the OP namely M/s. Unitech Ltd.  The complainants were allotted apartment No.0803 having super area of 1695 sq. ft. on the 8^th Floor of Tower No. 22, Unitech Horizon at Greater Noida and an allotment letter was issued by the OP on 17.06.2006. The total sale consideration of the apartment was Rs.46,19,970/- (Rupees Forty six lakhs nineteen thousand nine hundred and seventy only) out of which the complainant had paid a total sum of Rs.44,02,585/- (Rs. Forty Four Lac Two Thousand and Five Hundred Eighty Five only) to the OP by September, 2008 i.e. 95% of the total consideration amount of apartment. The OP party assured the complaint for possession of the aforesaid apartment on or before 15.11.2008.  It is the case of the complainants that OP  has failed to adhere to the timeline of delivery of the apartment and failed to give possession even more than 7 years after the declaration of possession date. The case of the complainants is that they had made various visits and calls to the registered office/construction site of the OP from 2009 to 2015 and were always getting false assurances about the delivery of possession of the apartment.
3. Alleging deficiency in service on the part of the OP, the complainants have filed the present complaint with the following prayers:-

 

“a) OP be directed to pay damages/compensation amounting to Rs.79,59,025/- to the complainant towards the financial, physical, mental and interest @ 18% per annum compounded quarterly of the amount paid by the complainant to the respondent from the date of payment of amount for the losses suffered due to the negligence of the respondent which the complainant have undergone till date and which are increasing day by day as the possession of the apartment/flat allotted to the complainant is delayed day by day by the respondent.

 

b) It is further prayed that this Hon’ble Commission may kindly issue appropriate directions/orders setting a define timeline for the respondent to deliver the possession of the respective apartment and to pay the damages/compensation to the complainant @ 18% per annum interest compounded quarterly amounting to Rs.79,59,025/- for the losses sustained by the complainant on account of non-delivery of possession of the apartment/flat with immediate effects.

 

c)  Pass any other or further orders which this Hon’ble Commission deems fit and proper under the aforesaid facts and circumstances in favour of the complainant and against the respondents, in the interest of justice.”

 

4. On notice, OP appeared and filed its written statement wherein all the allegations of the complainants were accepted.  However, it is submitted that the complainant tower was No.22 and handing over of the possession was to be done in last phase.  It is further stated that work of the tower is going to be completed soon.
5. Complainants have filed rejoinder and evidence by way of affidavits supporting the averments made in the complainant.  After submitting written statement, the OP did not appear despite giving sufficient opportunity and has been proceeded ex-parte on 19.4.17.
6. We have heard the Counsel for the complainants and perused the material on record.
7. Ld. Counsel for the complainant has taken us through the complaint and also the evidence which is in the form of affidavits of both the complainants. On perusal of allotment letter dated 17.06.2006 issued by the OP to the complainants, it is clear that vide said allotment letter the complainants were allotted apartment No. 0803 having super area of 1695 sq. ft. on the 8^th Floor of Tower No. 22, Unitech Horizon at Greater Noida. From the above documents it is also clear that agreed consideration amount was Rs.46,19,970/-. It is also clear from the clause IV (a) of the allotment letter that the OP had agreed to deliver the possession of the aforesaid flat by 15.11.08. Complainants have categorically stated in the complaint that against the consideration amount 95% i.e. Rs.44,02,585/- has been paid to the OP. Even more than 8 years of the expiry of the stipulated date of delivery of possession, the OP has failed to give the possession.
8. From the evidence led by complainant, it is proved that despite having received an amount of 95% of consideration amount, the OP has failed to deliver possession of the said apartment to the complainants. In the absence of any evidence/explanations for failure to comply with the stipulations of delivery of possession, it is our considered view that OP has committed deficiency in service and has also indulged in unfair trade practice.
9. Now the question arises as how much compensation should be awarded to the complainants. Clause 4 (e) is the actual clause which deals with the compensation to be paid by the OP party. Clause 4 (e) 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 damages or any other compensation on this account.”

 

10. On reading of the above it is clear that if for any reason, the OP is not in a position to offer possession of the apartment, the OP shall refund the amount with simple interest @10% p.a. without any further liabilities. It is not disputed that OP has failed to deliver the possession even after 8 years of the expiry of the date. The complainants cannot be expected to wait for possession of the apartment for an indefinite period. Considering the above clause, OP is liable to pay 10% interest p.a. on the deposited amount as compensation on account of default on its part.
11. In view of the above discussion, the complaint is allowed with the following directions:-

 

1. The OP shall refund entire amount of Rs.44,02,585/- to the complainants within 08 weeks from today along with interest @ 10% per annum from the date of each deposit till the date of realization.  Besides we also award litigation costs of Rs.10,000/-.

12. Copy of this judgment be sent to the complainants free of costs as per rules.

          File be consigned to Record Room.

 

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member