Delhi

StateCommission

CC/831/2015

RAJENDRA GUPTA & ANR. - Complainant(s)

Versus

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

14 Dec 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:14.12.2017

 

 

Complaint Case No.843/2015

 

 

1. Shri Rajendra Kumar Gupta,

S/o Shri Amar Chand Gupta

4801, Kensington Park, Blud,

Orlando, USA

 

2. Smt. Geeta Gupta

W/o Shri Rajendra Kumar Gupta,

 

Both Residents of :

4801, Kensington Park, Blud,

Orlando, USA.

 

ALSO AT:

 

A-83-C, Freedom Fighter Enclave,

Neb Sarai, New Delhi -110068.                          …Complainants

 

Versus

 

M/s. Unitech Ltd.,

P-7, Sector -18,

Noida – 201301

 

ALSO AT:

 

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 not?

 

Justice Veena Birbal, President

 

 

1. Shri Rajendra Kumar Gupta and his wife Smt. Geeta Gupta, the complainants herein had applied for allotment of an apartment in a building complex as Tower No.22, Unitech Horizon, Plot No.6, Sector –Pi-2, (Alistonia Estate), Greater Noida, Gautam Budh Nagar, Uttar Pradesh. It is alleged that complainants were allotted an apartment No.1203 having super area of 1695 sq. ft. on the 12^th Floor of Tower No.22, Unitech Horizon, Plot No.6, Sector –Pi-2, (Alistonia Estate) at Greater Noida. It was a Time Linked payment plan. It is stated that the total sale consideration of the aforesaid apartment was Rs.49,99,395/- inclusive of Basic Price, External Development Charges, Infrastructural Development Charges, Preferential Location Charges etc. and the use of space for car parking.  In all OP had received Rs.47,79,214/- from the complainants, out of the total amount of Rs.49,99,395/- i.e. about 95% of the total costs of the flat by August 2008. As per clause 4(a)(i) of the agreement, OP had agreed to handover the possession of the flat within stipulated period i.e. by 15.11.2008 but till date OP has not handed over the possession of the flat as such OP has committed breach of terms of the agreement. It is alleged that number of visits were made at the site but there is no progress in the construction. The complainants have also written number of emails to the OP but no response was ever sent by OP.
2. It is alleged that the complainants have been cheated by OP. It is further alleged that huge money is collected by OP and the same is being misused by it.
3. It is alleged that OP failed to meet commitment and construction has not been completed. It is stated that the complainants have made several inquiries/calls to the OP regarding construction/possession of the flat but complainants did not receive anything except the false assurance given by the OP. It is further stated that on one hand, the complainants have been harassed by the OP by not carrying out the construction within the stipulated time and not responding the letters of the complainant, on the other hand, the OP has been giving false and lucrative advertisement in the newspapers falsely advertising that the construction in full swing in the aforesaid project of the OP with the obvious malafide objective of getting unjust enrichment by inducing the prospective customers to part with their hard earned money by investing in the aforesaid project and thereby getting unjust enrichment at their expenses.
4. It is further stated that as per clause 4(e) of the agreement, if for any reason OP is not in a position to offer the apartment to the buyers, then OP may offer an apartment to allottees/buyers an alternate property or refund the amount paid by the allottees in full with interest @10% p.a. It is stated that despite receiving an amount of Rs.47,79,214/- out of the total agreed amount of Rs.49,99,395/- which is almost equal to 95% of the total costs of the apartment, OP has not completed the construction of the unit allotted to the complainants. It is alleged that there is breach of terms and conditions/obligations on the part of the OP as it has not delivered the possession of the apartment in the manner as has been agreed between the parties. The complainants have made prayer for handing over of the possession of the apartment complete in all respects or to refund Rs.47,79,214/- paid by the complainants. The complainant has prayed for grant of compensation and litigation costs.
5. OP was served with the notice of the complaint. AR of the OP had appeared. However, no written statement was filed by the OP within the stipulated period as such the right of the OP to file written statement was closed vide order dated 22.07.2016. The said order was not challenged by the OP.
6. In support of their case, complainants have filed evidence by way of affidavit of Shri Rajendra Kumar Gupta i.e. complainant No.1 alongwith the written arguments.
7. Complainant No.1 Shri Rajendra Kumar Gupta, in his affidavit has reiterated the contents of complaint case on oath.  He has proved on record an authority letter given by complainant No.2 in his favour i.e.  Exb. CW -1/X and brochure of the project i.e. exb. CW -1/A.  He has also proved on record copy of Allotment Letter/Buyer’s Agreement i.e. Ex-CW-1/B, copy of payments receipts i.e. Ex-CW-1/C and Ex. CW -1/D respectively.  He has deposed about the amount paid to OP in all Rs.47,79,214/-. He has also deposed that possession of the flat was to be handed over by 15.11.2008 but till date, possession has not been handed over despite the fact that the complainants have made 95% payment to the OP.  Complainant No.1 has stated on oath that delay in handing over the possession is an unfair trade practice on the part of OP.  The demands raised by the OP is exhibited as Ex-CW-1/E, photographs of site are exhibited as Exb. CW -1/F. Copy of emails exchanging between the parties are exhibited as CW -1/G, CW-1/H, CW -1/I, CW-1/J and K.  He has further stated in the affidavit that the complaint be allowed and relief prayed be granted.
8. There is no evidence on behalf of OP and their right to file written statement was closed vide order dated 22.07.2016.
9. From the un-rebuttal evidence, it stands proved that OP has received Rs.47,79,214/- from complainants but has failed to deliver the possession of the said apartment to them as per terms and conditions of the allotment Letter/agreement Ex. CW -1/B. A period of nine years has already elapsed from the agreed date of possession. One is not expected to wait indefinitely. In the absence of any explanation for failure to handover possession as per the stipulated date, we hold that the OP has committed deficiency in service and has indulged in unfair trade practice.
10. Ld. Counsel for the OP has referred to Clause 4(e) of the Agreement between the parties i.e. Exb. CW-1/B, which deals with compensation to be paid if OP is not in a position to offer possession of Apartment to Allottee.  The relevant clause 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 any damages or any other compensation on this account.”   

 

11. On reading the above, it is clear that if OP is not in a position to offer the possession of the Apartment, OP shall refund the amount alongwith simple interest @ 10% p.a.  In the present case, OP has failed to deliver the possession of the Apartment even after the expiry of stipulated period.  The allottee is not expected to wait for possession of the Apartment for an indefinite period.  Thus, OP is directed to refund the amount deposited by the complainants along with 10% interest per annum on the deposited amount as compensation for its default.
12. In view of above discussion, the present complaint is allowed and OP is directed to refund the entire amount of Rs.47,79,214/- to the complainants within 8 weeks from today alongwith compensation by way of simple interest @ 10% per annum from the date of receipt of each payment till realization.  OP shall also pay Rs.20,000/- as cost of litigation to the complainants.
13. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. 

              File be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member