Delhi

StateCommission

CC/1014/2015

MR. MANISH ARORA & ANR. - Complainant(s)

Versus

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

11 Sep 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:11.9.2017

 

Complaint Case No.1014/2015

 

In the matter of:

 

1. Mr. Manish Arora,

S/o Dr. K.L. Arora

Eldeco Utopia

OL-1, Flat 2002

Sector-93 A, Noida

 

2. Mrs. Puja Arora

W/O Manish Arora

Eldeco Utopia

OL-1, Flat 2002

Sector-93 A, Noida

                        ....Complainants

 

Versus

 

M/s. Unitech Ltd.

Having its office at:

P-7, Sector 18, Noida-201301

 

ALSO AT:

 

M/s. Unitech Ltd.

6, Community Centre,

Saket, New Delhi-110017

….….....Opposite Party

CORAM

 

Justice Veena Birbal, President.

Ms. Salma Noor, Member.

 

1. Whether reporters of local newspaper be allowed to see the judgment?

 

2.  To be referred to the reporter or

 

Ms. 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. Manish Arora and his wife, complainants herein had applied for allotment for a flat from the OP namely M/s. Unitech Ltd.  The complainants were allotted apartment No.1201 having super area of 1705 sq. ft. on the 12^th Floor of Tower No. 23, Unitech Horizon at Greater Noida and an allotment letter was issued by the OP on 08.05.2006. The total sale consideration of the apartment was Rs.43,77,893/- (Rupees Forty three lakhs seventy seven thousand eight hundred and ninety three only) out of which the complainant had paid a total sum of Rs.42,02,652/- (Rs. Forty Two Lac Two Thousand and Six Hundred Fifty Two only) to the OP by August, 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:-

 

1. Direct the opposite party to deliver the actual physical possession of the flat No.1201, Tower No.23, Unitech Horizone, at Greater Noida (U.P.) to the complainants alongwith the interest of 18% per annum.
2.  
2. In the alternative direct the opposite party to refund the money paid by complainants i.e. Rs.42,02,652/- (Rs. Forty two lac two thousand six hundred and fifty two only) alongwith the interest of 18% per annum from the date of deposited with the respondent till the payment.

 

3. Direct the opposite party to pay a sum of Rs.5,00,000/- to the complainants as compensation for harassment, inconvenience and mental agony caused by opposite party.

 

4. That a sum of Rs.25,000/- be allowed as litigation  costs.
5. Direct the opposite party to pay the maintenance charges and other charges till the delivery of the possession of the flat to the complainants.

 

6. Any other relief/s that this Hon’ble Court may thinks fit and proper in favour of the complainant in the facts and circumstances of the case.

 

4. OP despite service of notice of the complaint has failed to file written statement within the period provided under section 13(2) of the Consumer Protection Act 1986. Consequently, right of the OP to file written statement was closed. Complainants filed their evidence by way of affidavit and written arguments.
5. Complainants have filed evidence by way of affidavits supporting the averments made in the complainant.
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 08.05.2006 issued by the OP to the complainants, it is clear that vide said allotment letter the complainants were allotted apartment No. 1201 having super area of 1705 sq. ft. on the 12^th Floor of Tower No. 23, Unitech Horizon at Greater Noida. From the above documents it is also clear that agreed consideration amount was Rs.43,77,893/-. 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.42,02,652/- 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 IV (e) is the actual clause which deals with the compensation to be paid by the OP party. Clause IV (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.42,02,652/- to the complainants within 08 weeks from today alongwith interest @ 10% per annum from the date of each deposit till the date of realization.

 

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