Delhi

StateCommission

CC/151/2016

MUDITA AGARWAL & ANR. - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

04 Dec 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 04.12.2017

Complaint Case No. 151/2016

In the matter of:

Dr. MuditaAgarwal

W/o Sh. A. Vikram

R/o House No. 130, Pocket-I

1^st Floor, Jasola 

New Delhi-110025    

 

Mrs. Uma Agarwal

W/o Sh. P N Agarwal

R/o House No. 130, Pocket-I

​1^st Floor, Jasola

New Delhi-110025                                  ..........Complainants

 

Versus

 

Director

M/s Unitech Ltd.

6, Community Centre

Saket, New Delhi-110017                        .........Opposite Party

                                                                  

                                                                  

CORAM

 

SALMA NOOR                                    -                       MEMBER

 

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

2.             To be referred to the reporter or not?                                                                                                    Yes

 

 

SALMA NOOR – MEMBER

 

1.         This is a complaint under section 12 of the Consumer Protection Act 1986 (in short the ‘Act’) filed by two complaints related to each other being daughter and mother.
2.         Brief facts of the case are that in the year 2010-11 the OP launched a residential project namely Unitech South Part at land situated in village FazilPur, JhasrsaBadshshpur in Sector-70 Gurgaon, Haryana and also advertised that DTCP Haryana has granted license for development of the Group Housing Complex on the said land measuring 20 acres. In the advertisement the OP also promised that the construction shall be completed within thirty six months. After seeing the above alluring advertisement of the OP in the Newspaper, Ms. Nandita Sharma and Sh. Pradeep Sharma booked one flat with the OP and paid Rs. 30,87,409/- towards the basic installments, external development charges and service tax.  OP issued a letter dated 31.01.2013 admitting the aforesaid payment and executed a flat buyers’ agreement dated 13.06.2011, and allotted a unit No. 002, Block A-2, Floor GF in a project, namely Unitech South Park, Sector-70, Gurgaon, Haryana. In the said agreement dated 13.06.2011 clause 4(a) pertaining to the delivery of the possession (article 4) wherein the OP agreed to deliver the possession of the aforesaid flat within thirty six months from the date of signing of this agreement. Meaning thereby the OP had promised and agreed to deliver the said flat upto 13.06.2014.
3.         Case of the complainants are that they have purchased the abovementioned flat from the aforesaidallotteesi.e Ms. Nandita Sharma and Sh. Pradeep Sharma by paying Rs. 30,87,409/- to them which is admitted by the OP. In pursuance of the aforesaid payment to the earlier allottees the OP endorsed the buyer’s agreement dated 13.06.2011 in favour of the complainants on 31.01.2013 the endorsement has been made in respect of the above flat, meaning thereby the names of the earlier allottees were deleted and in their place name of the present complainants were endorsed and made them allottees. The payment made by the complainants in respect of Rs. 30,87,409/- is acknowledged by the OP and it is agreed that remaining amount will be payable as per the schedule on construction and demand made by the OP. The complainants have also paid a broker fee of Rs. 89,888/- on 31.01.2013 to the OP. In view of the endorsement made by the OP in flat buyers’ agreement dated 13.06.2011 both the complainants were stepped into the shoes of the original allottees i.e. Ms. Namita Sharma and Sh. Pradeep Sharma.
4.         Grievance of the complainants are that after the said purchase they have been waiting for starting construction of the said project and even after one year of the said transfer made in favour of the complainants by the OP the construction not started by the OP. The complainants asked about the status of the project but the officials of the OP made false representation and assured that the project will be completed within the stipulated time. It is however submitting that even after the lapse of substantial period the complainants have not received any intimation from the OP with regard to the start of the construction or any demand of the balance payment pertaining to the flat. Grievance of the complainants are that as per the agreement possession was to be delivered within thirty six months from the date of agreement i.e. 13.06.2014 but even after expiry of the aforesaid period the complainant did not received any information about the construction nor demand of the balance sale consideration. It is alleged by the complainants that they have personally visited the site and were shocked to know that the construction has not been started and the officer of the OP failed to give any schedule for commencement of the work and the plan of construction. It is alleged by the complainant that they have paid the huge amount i.e. 30,87,409/- to the OP and also paid Rs. 89,888/- towards the transfer fee to OP and OP enjoying the benefit of the money of the complainants, on the other hand the complainants are deprived of the fruits of the aforesaid money. It is further alleged by the complainants that because of non-delivery of the possession of the flat complainant no. 2 i.e. Ms. Uma Aggarwal fell ill and had to incur a huge amount in her treatment and the complainant no. 1 Ms. MuditaAgarwal have to pay huge amount in respect of rent in which they are residing. Being aggrieved, the complainants have filed the present complaint with the following prayer:

1. To issue the direction to OPs to refund Rs. 31,77,297/- to the complainants alongwith interest @ 18% p.a. on this amount from the date of agreement.
2. OP be directed to pay Rs. 20,00,000/- as compensation on account of harassment, mental agony and sheer suffering.
3. OP be directed to pay Rs. 5,00,000/- as the legal expenses.
4. Any other relief, which the Hon’ble Commission deemed fit and proper.

 

5.     Notice was issued to the OP. OP appeared on 16.05.2016 and received copy of the complaint. It was directed to file written statement within thirty days thereafter. However written statement filed by the OP on 27.02.2016 alongwith the application for condonation of delay in filing the written statement. With the consent of the complainant, the application was allowed subject to payment of costs of Rs. 5000/-. Counsel for the OP undertook to pay the costs to the complainant on the next date of hearing that was 25.10.2016. On 25.10.2016 non-appeared on behalf of the OP neither the costs of Rs. 5000/- was paid to the complainants.Hence written statement of the OP was taken of the record. On the same date OP was proceeded ex-parte. Thereafter the complainantshave filed ex-parte evidence by way of affidavit supporting the averments made in the complaint and also written arguments. It is pertinent to mention here that after 25.10.2016 matter was fixed on 18.01.2017, 08.05.2017 and 19.09.2017 but none appeared on behalf of the OP on the said dates.
6.     We have heard the father of the complainant-1 and perused the material on record.
7.     Father of the complainants has taken me to the complaint of the complainants and also the evidence. On perusal of the apartment allotment agreement dated 13.06.2011 issued by the OP to the complainants it is clear that vide said allotment letter the complainants were allotted apartment no.002 having a super area of 148.64 sq. mtrs. on floor-GF block A-2. From the above document, it is also clear that the agreed consideration amountwas Rs. 30,87,409/-.It is also clear from the clause 4.a.(Delivery of Possession) of the agreement that possession of the aforesaid flat was to be given within a period of 36 months from the date of signing of this agreement. In this way the OP had agreed to deliver the possession upto 13.06.2014. Complainantshave categorically alleged in the complaint that against the consideration amount of Rs. 31,77,297/-, they have already paid to OP Rs. 30,87,409/- in 2011. It is alleged by the complainant that no construction work has been started on the site where the flat has been allotted to the complainant and stipulated date of delivery of the possession has been expired long before and the OP has failed to give the possession.
8.     As the OP has failed to appear after filing the written statement (which was not taken on record) and was proceededex-parte vide order dated 25.10.2016 the aforesaid allegation of the complainants are deemed to have been admitted as correct. On the other hand, the complainants in order to prove their allegation have filed their own affidavit. Thus it is proved that despite of having received of Rs. 31,77,297/-. The OP has failed to deliver the possession of the said apartment to the complainant. In the absence of any evidence/explanation for failure to comply with the stipulation of delivery of possession I am of the considered view that OP has committed ‘deficiency in service’ and has also indulged in ‘unfair trade practice’.
9.     Now the question arises how much compensation should be awarded to the complainants. Clause 4.a. is the actual clause which deals with the compensation to be paid by the OP only. Clause 4.a. is reproduced as under:

“If for any reson the Developer is not in a position to offer the allotted Apartment, as agreed herein, the Developer will offer the Apartment Allottee(s) an alternative property in any complex developed, underdevelopment or proposed to be develop in the surrounding area-projects and if any alternate property is available will refund the amount paid by the apartment allottee(s) in full with interest @ 10% per annum from the date of payment(s) by the apartment allottee(s) without any further liability to pay any damages, charges or compensation.”

 

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 cannot be disputed that OP has failed to deliver the possession till today. Thus in my view it is the case of the OP not being in a position to offer possession of the apartment and allottee cannot be expected to wait for possession of the apartment for an indefinite period. Hence the OP is liable to pay 10% interest p.a. on the deposited amount as compensation for its default.
11.         In view of the above discussions, the complaint is allowed with the following directions:

“The OP shall refund entire amount of Rs31,77,297/-to the complainants within six weeks from today alongwith interest @ 10% p.a. from the date of deposit till the date of realization of the amount alongwith compensation  of Rs.1,50,000/- towards mental agony and harassmentto the complainants.”

 

12. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be sent to Records.

 

 

 

(SALMA NOOR)

MEMBER