Delhi

StateCommission

CC/843/2015

SH. ANAND PAL GULIA & ANR. - Complainant(s)

Versus

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

27 Sep 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision:27.09.2017

 

 

Complaint Case No.843/2015

 

 

1. Shri Anand Pal Gulia,

S/o Late Shri Chatter Singh

 

2. Shri Vikas Gulia,

S/o Shri Anand Pal Gulia,

 

Both Residents of :

House No.874, Sector -15,

Sonepat – 131001. Haryana.

 

                                                              …Complainant.

 

Versus

 

 

M/s. Unitech Ltd.,

6, Community Centre,

Saket, New Delhi – 110017.

 

                   &

 

Real Estate Division (Marketing)

5^th Floor, Signature Towers, South City-1,

N.H. – 8, Gurgaon, Haryana.

                                                          ….Opposite Party

 

CORAM

Justice Veena Birbal, President

 

 

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 Anand Pal Gulia and his son Shri Vikas Gulia, the complainants herein had purchased an under construction flat/apartment bearing No.1202, Tower No.B-3, Unitech Vistas, Sector -70, Gurgaon, Haryana, admeasuring super area approx. 1535 sq. ft. (hereinafter referred to as “Flat”), in resale from Mr. Sameer Kohli and Smt. Shweta Kohli (hereinafter referred to as “First Buyers”) on 05.07.2011, in a Group Housing Complex Scheme/Project proposed to be developed by the OP, situated in Sector 70, Village Badshahpur, Gurgaon, Haryana. The first buyers i.e. Mr. Sameer Kohli and Smt. Shweta Kohli had purchased the flat from original allottee, namely, Shri Abhishek Gupta and Ms. Namita Gupta. On 01.08.2011, the complainants had purchased the flat from first buyers and the same had been transferred by the OP in their favour.  The OP also charged transfer fee of Rs.1,26,985/-. The said fee was also paid to the OP by the first buyers. OP had issued a receipt in this regard. Prior to this, confirmation letter was also issued by the OP. OP also made endorsement of transfer on the flat buyers agreement on 01.08.2011. It is stated that the total sale consideration of the aforesaid flat was Rs.57,62,522/- inclusive of Basic Price, External Development Charges, Infrastructural Development Charges, Preferential Location Charges etc. and the use of space for car parking as provided in the payment plan.  In all OP had received Rs.56,69,912/- from the complainants including the original allottee and first buyers, out of the total amount of Rs.57,62,522/- i.e. about 98% of the total costs of the flat. As per clause 4(a)(i) of the agreement, OP had agreed to handover the possession of the flat within stipulated period of 36 months from the date of signing of the agreement i.e. 14.05.2010. It is alleged that the possession was to be delivered to the complainants by 14.05.2013 but till date OP has not handed over the possession of the flat as such OP has committee 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. It is further stated that the flat in question in Tower B-3, Apartment No.1202 on 12^th Floor having super area of approx. 142.60 sq. mtrs. (Approx 1535 sq. ft.) Terrace area 0.00 sq. mtrs. (Approx 0.00 sq. ft.) in the complex “Vistas” in Sector 70, Gurgaon, Haryana.  
2. It is stated that the complainant No.1 is 65 years of age and suffering from paralysis. Complainant No.2 is the son of complainant No.1, who is living in UK. It is  stated that and till date there are no signs of completion of 12^th floor wherein flat has been allotted to the complainants. It is stated that complainant No.1 is living in a rented accommodation and paying Rs.35,000/- per month.
3. It is 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 complainants had opted for construction linked plan and made all the payments. It is stated that despite receiving an amount of Rs.56,62,912/- out of the total agreed amount of Rs.57,62,522/- which is almost equal to 98.8% of the total costs of the flat, 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 had 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 the price of the flat at the present market rate, so that the complainants can purchase another flat. A prayer is also made for grant of compensation and litigation costs.
4. OP was served with the notice of the complaint. Counsel for the OP had appeared. However, he has not filed written statement within the stipulated period as such the right of the OP to file written statement was closed vide order dated 26.08.2016. The said order was not challenged by the OP. Subsequently, OP also stopped appearing in the matter.
5. In support of their case, complainants have filed evidence by way of affidavit alongwith the written arguments.
6. On behalf of complainant, evidence of Shri Rajvir Singh, Special Power of Attorney holder of the complainants have been filed who has reiterated the contents of complaint case on oath.  He has also deposed that the complainant No.1, Anand Pal Gulia is 65 years of age and suffering from paralysis and is living in a rented accommodation and bedridden since last 6 months.  It is further stated that complainant No.2 is a practicing doctor and is living in Birmingham, U.K. He has proved on record medical certificate of complainant No.1 i.e.  Exb. CW -1/1 and work permit of complainant No.2 i.e. exb. CW -1/2.  He has also proved on record copy of SPA in his favour i.e. Exb. CW -1/3. He has also proved on record copy of Buyer’s Agreement i.e. Ex-CW-1/4, copy of confirmation letter i.e. Exb. CW -1/5 and payments receipts i.e. Ex-CW-1/6.  He has deposed about the amount paid to OP in all Rs.56,62,912/- and has proved on record relevant receipts in this regard as Ex-CW-1/7(Colly).  He has also deposed that possession of the flat was to be handed over within a period of 36 months from the date of signing of the agreement i.e. by May, 2013 but till date, possession has not been handed over despite the fact that the complainants have made 98.8% payment to the OP.  It has further stated on oath that delay in handing over the possession is an unfair trade practice on the part of OP.  The legal notice issued to OP is exihibited as Ex-CW-1/9 and its receipts as Ex-CW-1/10.  He has further stated in the affidavit that the complaint be allowed and relief prayed be granted.
7. As noted above, the right of OP to file written statement has already been closed. The  complainants have filed evidence by way of affidavit as is discussed above.
8. From the evidence, it stands proved that OP has received Rs.56,62,912/- payment from complainants but has failed to deliver the possession of the said apartment to them as per terms and conditions of the agreement Ex. CW -1/4. A period of four years   have 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, I hold that the OP has committed deficiency in service and has indulged in unfair trade practice.
9. Ld. Counsel for the OP has referred to Clause 4(e) of the Agreement between the parties which deals with compensation to be paid if the 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 Developer is not in a position to offer the Apartment, as agreed herein, the Developer may offer the Apartment Allottee(s) alternative property or refund the amount paid by the Apartment Allottee(s) in full with interest @ 10% per annum from the date of payment(s) made by the Apartment Allottee(s) without any further liability to pay any damages, charges or compensation.”   

 

 

10. 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.
11. In view of above discussion, the present complaint is allowed and OP is directed to refund the entire amount of Rs.56,62,912/- 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.
12. 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