APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON:  4^th   January   2018

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          These two consumer complaints have been filed under section 21(a)(i) of the Consumer Protection Act, 1986, against the opposite party (OP) -  builder M/s. Unitech Ltd., alleging deficiency in service against them for not providing residential accommodation to the complainants in their housing scheme, known as, “Unitech South Park” at Sector- 70, Gurgaon, Haryana as per the terms and conditions of the agreement entered between the parties.

2.      The consumer complaint no. 1796/2016 has been filed by the complainants, Manoj Liladhar Khandelwal and Rakhi Khandelwal, saying that in response to the advertisement made by the OP builder, they made application in the said project and paid the application money, after which a builder-buyer agreement was signed between the parties and unit no. 0104, floor-01, tower A-4, measuring 1550 sq. ft. was allotted to them.  As per the builder-buyer agreement dated 16.05.2011, the date of giving possession of the property was indicated as 16.05.2014 i.e. within 36 months of the agreement and the total consideration for the property was shown to be Rs. 90,20,300/-, out of which, the net amount paid by them was Rs. 28,35,725/-.  In the instance case, the complainants purchased the said property in resale from the original allottee and after making payment of transfer charges, the said apartment was transferred in their name.  Alleging that the OP builder failed to deliver the possession of the property, despite making commitment that the same shall be done within 36 months of the agreement, the complainants filed the consumer complaint in question, seeking directions to the OP builder to refund the entire amount collected from the complainants towards consideration of the house, alongwith interest @ 18% on the amount paid by them and also to pay compensation of Rs. 5 lakhs for mental agony and harassment.  It was stated that the consumer complaint was within the pecuniary jurisdiction of this Commission, as the value of the property had been assessed as Rs. 1,16,29,280/-.  It was also stated in the consumer complaint that previously, a joint complaint had been filed by the complainants alongwith some other buyers of houses in the said project, but the said complaint was dismissed by this Commission on 18.10.2016, as the complainants lacked necessary averments of a class-action suit.  However, liberty was given to them to file individual complaints and hence, the present complaint had been filed.

3.      The consumer complaint no. 1797/2016 has been filed by Virendra Singh and Saroj Devi with almost similar facts, saying that the builder-buyer agreement was entered between the parties on 18.05.2011 and hence, the OP builder was required to deliver the possession of the property within a period of thirty-six months i.e. by 18.05.2014 as per the terms and conditions of the agreement.  In this case, the allotted unit is 0502, floor–05, tower B-2, having size of 1610 sq. ft. for a total consideration of Rs. 92,76,231/-.  The net amount paid in this case is Rs. 48,15,571/-.  In this case as well, the property was purchased from the original allottee and after making payment of the transfer charges, the same was transferred by the OP builder in their name.  The complainants have mentioned that the present complaint had been assessed for a sum of Rs. 1,19,49,680/- and hence, the case was within the pecuniary jurisdiction of this Commission.

4.      Both these complaints were admitted vide order dated 17.11.2016, and notice was ordered to be issued to the opposite party.  The said notice was served upon the OP on 14.02.2017, but the OP failed to file their written version to the complaints.  The right to file written version was closed vide order dated 26.05.2017.  The complainants filed their evidence as well as written arguments on record.  On 10.10.2017, the learned counsel, who appeared for the OP stated that they were making earnest efforts to settle the matter with the complainants.  However, on the next date of hearing, it was apprised that the settlement could not be reached and hence, the arguments of the parties were heard on that day. 

5.      In the evidence affidavit filed on behalf of the complainants, the facts stated in the consumer complaint were reiterated.  It was stated further that as per clause 4(c) of the buyers’ agreement, the OP was required to pay a compensation @ Rs. 5/- per sq. ft. per month for the period of delay.  The said compensation was quite meagre and upon calculations, came to be only 1.4% p.a. rate of interest.  Moreover, the complainants were suffering huge financial loss, as they were forced to live in a rented accommodation due to the failure of the OP to deliver the possession of the property in time.  Since the OP had failed to comply with their contractual obligations vis-à-vis the complainants, there was clear deficiency in service on the part of the OP.  In the written synopsis filed on behalf of the complainants also, it was pleaded that despite payment of the entire amount to the OP in time and despite repeated requests and reminders, the OP failed to deliver the possession of the apartment to the complainants.  It was further stated that as per clause 2(c) of the buyers’ agreement, the opposite party charges interest @ 18% p.a. compounded quarterly from the buyers/allottees on any amount due.  On the grounds of parity and equality, the OP should be made to pay the same rate of interest to the complainants for the default committed by them.  It was argued that the entire money collected from the complainants should be repaid to them alongwith interest @ 18% p.a. and also with a compensation of Rs. 5 lakhs towards mental agony and harassment. 

6.      During hearing before us, the learned counsel for the complainants in both the cases, stated at the outset that the complainants shall be satisfied, if the entire amount deposited by them with the opposite parties is refunded to them forthwith alongwith interest @ 10% p.a. from the date of deposit of the said amount till realisation.  The learned counsel has drawn attention in this regard to an order passed by this Commission in C.C. No. 907/2015, Ashwani K. Ahuja & Anr. vs. M/s. Unitech Ltd., in which the order was made on 01.06.2017.  The learned counsel argued that although this Commission had allowed higher rate of interest and compensation to the complainants in many other cases, they were restricting their claim to the refund of the amount paid by them alongwith compensation in the form of interest @ 10% p.a. in terms of clause 4(e) of the buyers’ agreement, so as to avoid any further litigation on the part of the OP.

7.      In response, the learned counsel for the respondent/OP stated that while they were in agreement in principal with the demand made by the complainants, it should be ensured that if any other amount had been claimed or demanded by them as homebuyers, the same should be deducted from the amount payable to the complainants.  The learned counsel for the complainants then drew attention to the consumer complaint, in which it has been stated that the complainants had not filed any other similar case against the OP in any Court of law.

8.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

9.      A close examination of the facts and circumstances of the case indicates that the opposite party/builder have not been able to fulfil their obligations in providing the property in developed condition to the complainants in accordance with the terms and conditions of the agreement entered between the parties.  During the course of arguments also, the OP have not been able to pinpoint any tentative schedule, by which the said property could be constructed and handed over to the complainants.  There is no alternative, therefore, but to refund the amount deposited by the complainants with the OP builders alongwith suitable interest.  A number of similar cases have already been decided by the Hon’ble Supreme Court and this Commission from time to time.  In the present case, the complainants have simply demanded their money back alongwith a reasonable interest @ 10% per annum.  In almost identical cases, this Commission passed orders for the refund of the amount in question alogwith interest @ 18% per annum.  In Consumer Complaint No. 368/2014, Shweta Kapoor & Anr. vs. M/s. Unitech Ltd. & Anr., the OP were directed to provide compensation to the complainants in the form of simple interest @ 12% per annum till the possession was delivered.  It was also stated that if the OP failed to deliver the possession within a year from the date of the order, they shall pay compensation in the form of interest @ 18% per annum for each day’s delay beyond the period of one year.

10.    Considering the entire facts and circumstances of the case and looking at the submissions made by the parties, these consumer complaints are allowed with directions to the OP to refund the entire amount deposited with them by the complainants alongwith interest @ 10% per annum from the date of deposit of the said amount till realisation.  As submitted by the learned counsel for the OP during arguments, it is made clear that the OP shall not be liable to pay any other compensation apart from that mentioned above, in case any other proceedings have been filed by the complainants at any forum in any form.  There shall be no order as to costs.  The compliance of this order shall be made within six weeks from today, failing which the interest payable on the amount to be refunded shall stand increased from 10% to 15% per annum.