Delhi

StateCommission

CC/27/2015

SMT. MANORAMA BHAGAT & ANR. - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

02 Nov 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Decision:02.11.2017

Complaint Case No.27/2015

1. Smt. Manorama Bhagat,

W/o Late Bindeshwari Bhagat,

D-142, Sarita Vihar,

New Delhi-110076.

2. Brajesh Kumar,

S/o Late Bindeshwari Bhagat,

D-142, Sarita Vihar,

New Delhi-110076.

…. Complainants

Versus

Unitech Ltd.,

Registered office at:

6, Community Centre,

Saket, New Delhi-110 017.

Through its Managing Director

… Opposite Party

CORAM

Justice Veena Birbal, President

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. In July, 2005 a group housing project by the name of ‘Cascades’ to be developed on Plot No.8, Sector-Pi-II, (Alitomia Estate), Greater Noida, District Gautam Budh Nagar was launched by OP.  In the brochure circulated, it was mentioned that the project was to be launched at the end of July, 2005 and was to be ready for possession in March, 2008.  On 19.7.05, the complainants after properly assessing their financial condition opted for Type ‘A’ category flat in aforesaid project with super built up area of 1537 sq.ft. and also paid earnest money by way of cheque in the sum of Rs.3 lacs.  On 16.8.05, the complainants submitted their choice of apartment for Flat No. 102 in Tower No. 5 having cost of Rs.36,65,119/-.  On 22.8.05, the complainants had opted for  time linked installment plan and had deposited further balance registration amount of Rs.34,297/-.  Complainants were sent a letter of allotment and two copies of allotment letter/agreement.  The complainants had paid installments from time to time.  On 7.12.07, 13^th & 14^th installment had fallen due which could not be paid on time as such OP had sent a demand letter demanding the aforesaid installments. Ultimately complainants also paid the aforesaid installments.  After the payment of 14^th installment, the complainants were not required to make further payments till the receipt of final notice of possession from the OP.  The complainants had discharged their liability by depositing a total sum of Rs.35,12,960/- which included Rs.31,75,816/- towards the BCP of the Apartment apart from Rs.56,869/-, Rs.15,000/-, Rs.1,15,275/-, Rs.1,50,000/- towards EDC, CC, PLC and parking charges respectively.  A total sum of Rs.36,344/- was paid by the complainants towards interests on the installment amount which were not paid timely.   
2. Complainants had received a letter dated 7.12.07 from the OP assuring that the possession of the project will be handed over in phased manner and would start by 4^th quarter of 2008.  Despite that the possession was not delivered on 31.3.08.  Complainants sent notice dated 30.3.13 asking for the date of the completion of the project and expected date of delivery.  On 20.4.13, complainants received a letter from OP wherein it was informed that Towers 1, 6, 7 & 8 had been offered for possession and Tower 5 was going to be the next.  The reason for delay was attributed as global melt down, farmers prolonged demonstrations, agitations and dharnas.  On 15.4.14, complainants received a letter wherein it was informed that the apartment was ready for possession and possession letter be collected after making final payments.  It was further informed that the actual possession of the Apartment would be handed over within 45 days of issue of aforesaid possession letter by alleging that the final coat of paint on internal walls and polishing was yet to be done.
3. By another letter of aforesaid, complainants were informed that there was change in the Super Area of the flat and Rs.1,16,637/- was demanded on that account.  The statement of account was also furnished which showed that a sum of Rs.5,71,680/- had been credited to the account of the complainants in terms of clause 4C(ii) of the agreement.  After adjusting the surplus to the maintenance account, complainants were directed to make the payment of balance amount of Rs.7,612/-.  On 28.5.14, the complainants made the said payment also and were issued a possession letter.  Within 45 days thereof, the actual possession was to be handed over, however, the same had never happened.  The complainants contacted many times to the office of OP despite that the possession was not handed over.
4. Ultimately the complainants filed the present complaint wherein prayer is made for the grant of possession of the aforesaid apartment and interest @ 18% per annum on the amount deposited by the complainants with the OP w.e.f. 1.4.08 till handing over of possession.  The complainants have also prayed for Rs.10 lacs towards compensation and Rs.1 lac towards litigation cost.
5. Notice of complaint was issued to the OP.  OP sought time to file written statement.  Despite opportunity given, OP did not file written statement as such on 9.2.16, the right of OP to file written statement was closed by relying on the judgment of Hon’ble Supreme Court in Civil Appeal No.10941-10942 of New India Assurance Co. Ltd. vs Hilli Multi Purpose Cold Storage Pvt. Ltd. dated 4.12.15.  OP did not challenge aforesaid order.
6. In evidence both the complainants have filed their own separate affidavits as CW-1 & CW-2 respectively wherein both have reiterated the contents of complaint on oath.  Complainant No. 2 i.e. Shri Brajesh Kumar has exhibited relevant extract from the brochure and payment plan Ex-CW-2/1, letter dated 22.8.05 Ex-CW-2/2 issued by OP, agreement between the parties Ex-CW-2/3.  It is also stated that for the delayed payments, the OP was charging compound interest @ 18% p.a. compounded quarterly.  The demand letter in this regard is exihibited as Ex-CW-2/4.  The reminders sent by the OP are exihibited as Ex-CW-2/5 to 7.   Notice sent by complainants to OP dated 30.3.13 is exihibited as Ex-CW-2/8.  The letter of the OP dated 20.4.13 is exihibited as Ex-CW-2/9.  Letter sent by complainants to OP is exihibited as Ex-CW-2/10.  Letter dated 15.4.14 of the OP is exihibited as Ex-CW-2/11 demanding balance amount from complainants.   Possession letter dated 28.5.14 is exihibited as Ex-CW-2/12.  The complainants have also deposed that there is a deficiency in service on the part of the OP and OP is guilty of unfair trade practice.  It is stated that there is more than 6 ½ years delay on the part of OP and the possession has not been delivered.   
7. There is no evidence on behalf of OP as their right to file written statement was closed as is referred above.
8. From the evidence of complainants it stands established that the complainants were allotted Apartment No. 0102 In Tower 05 on 01 Floor measuring 1537 sq. ft. which was to be developed on Plot No.8, Sector-Pi-II (Alitomia Estate), Greater Noida, District Gautam Budh Nagar, UP.  The payment receipts on record establish that the complainants had paid the requisite payment.  The letter sent by OP dated 15.4.14, Ex-CW-2/11 reads as under:

“We are pleased to inform you that captioned residential unit booked by you in UNITECH CASCADES at Greater Noida, is ready for possession and you are just one step away from having your apartment.

You are requested to clear your dues as per enclosed Statement of Account and Maintenance invoice within 60 days hereof.  This may be treated as final notice issued as per Terms and Condition of Allotment.  You are required to submit 4 (Four) passport size photographs of each allottee for the purpose of possession letter.

In case there is a lien of any Bank/Financial Institution on the captioned property, an NOC in original from the same Bank/Financial Institution shall be required for handing over of the possession letter.  Subsequently, the Lease/Sub-Lease Deed shall be sent to the Bank/Financial Institution by us directly.

Kindly contact Mr. Rajesh Sinha/Mr. Lalit Saxena on 0120-3985159/3985100 or e-mail @ Mr. Sumit Gaur on 9654888875 or 0120-3985142.

We are keen to ensure that when you move into your new apartment, it should greet you in its ultimate glory.  In this context, we intend to do final coat of paint on internal walls & polishing.  Fixing of CP fittings, fixing of laminated wooden flooring in bedrooms and Modular Kitchen unit after you have collected the possession letter from our Commercial Department.  The actual physical possession of the apartment shall be handed over within 45 days of submission of possession letter at project site.

 We look forward to hearing from you soon.”

9. As per aforesaid letter, possession was to be handed over within 45 days of the aforesaid letter.  Even the balance payment demanded was also paid but the possession of the apartment as agreed was not handed over to the complainants. 
10. Ld. Counsel for the complainants has submitted that since much time has elapsed now and OP has not even obtained the completion certificate, the complainants want refund of money with interest.  Ld. Counsel has submitted that though there is no specific prayer for refund of money, however, the complainants can pray for the same and has relied upon judgement of National Commission titled Mrs. Veena Khanna vs M/s. Ansal Properties, III (2007) CPJ 185 (NC).  Ld. Counsel has also relied upon the judgement passed by National Commission in FA-729/2013 Inderjit Singh Bakshi vs S.M.V. Agencies Pvt. Ltd. on 30.11.15
11. We have gone through the aforesaid judgements.  In Mrs. Veena Khanna vs M/s. Ansal Properties (supra), it is held that Consumer Fora is not governed by adversary system procedure, but it is to hold inquisitorial proceedings (inquiry).  In inquisitorial proceedings, the Consumer Fora is not to look at the prayer made by complainant only, but it ought to look into substance of the matter and defence of OP and thereafter can pass the appropriate order.  The relevant portion of the judgement is as under:

                   “Further, it is to be remembered that Consumer Fora is not governed by adversary system procedure, but it is to hold inquisitorial proceedings (inquiry).  Hence, in inquisitorial proceedings, the State Commission ought not to have looked only to the prayer made by the Complainant, but ought to have looked into the substance of the matter and at the defence of the Opposite Parties, wherein there is a specific admission that as soon as the flat would be ready after construction, the possession would be delivered.  In such a situation, direction for delivery of possession of flat ought to have been passed and for delay in delivering the possession, adequate compensation should have been awarded.”

12. In  Inderjit Singh Bakshi vs S.M.V. Agencies Pvt. Ltd. (supra), it

has been held that the allottee is not obliged to take the possession of the flat unless it is complete in every respect including the completion certificate.  The relevant para is reproduced as under:

“As a matter of fact, it is conceded that requisite completion certificate has been recently received in the year 2015.  If that be so, offer of possession, stated to have been made to the Complainant in the year 2012, was no offer at all.  An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate.”

13. The evidence of the complainants establishes that the actual possession was never offered to the complainants.  Even vide Ex-CW-2/11 dated 15.4.14, complainants were informed that the actual possession of apartment will be handed over within 45 days of submission of possession letter.  But the same was never given.  Even OP is not having completion certificate.  The complainants in these circumstances cannot be directed to accept the possession. 
14.  As per Clause 4(e) of the agreement, if allottee is not in a position  to offer the Apartment, in that event, OP has to refund the amount in full @ 10% per annum.  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 damages or any other compensation on this account.”

15.         In view of above discussion, the complaint is allowed and OP is directed to refund the amount deposited by the complainants i.e. Rs. 35,12,960/- with 10% interest per annum from the date of deposit till realization.

16.         A copy of the order as per statutory requirements be sent to the parties free of charge.  Thereafter the file be consigned to record room.

(Justice Veena Birbal)

President

(Salma Noor)

Member