Delhi

StateCommission

CC/85/2014

GAUTAM MUKHARJEE - Complainant(s)

Versus

UNITECH RELIABLE PROJECTS PVT. LTD - Opp.Party(s)

05 Mar 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 05.03.2019

Date of Decision : 08.03.2019

COMPLAINT NO.85/2014

In the matter of:

 

Gautam Mukherjee,

House No.803, Sector-37,

Faridabad (Haryana),

Pin – 121003.………Complainant

 

Versus

 

Unitech Reliable Projects Pvt. Ltd.,

6 Community Centre,

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

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

 

Shri O.P. Gupta, Member (Judicial)

 

JUDGEMENT

 

1. The case of the complainant is that he booked one unit in project named Unitech Verve at plot no.11, Sector-Pi-II, Greater Notida, Gautam Budh Nagar, U.P. for Rs.64,93,336/-. He paid Rs.6 lakhs vide receipt no.192 dated 01.01.07 and unit no.602 was allotted to him. The agreement provided for completion of project in 36 months from the date of allotment i.e. 01.10.07. He arranged financed of Rs.24,68,820/- and Rs.35 lakhs through Employee Housing Scheme and Commercial loan respectively from ABN Ambro Bank NV which has been renamed as Royal Bank of Scotland  NV.
2. The complainant got loans shifted to LIC Housing Finance. 195 installments were due as on date of filing complaint. He made various  payments mentioned in para 11 of the complaint. The OP has failed to hand over the possession. Hence this complaint for directing OP to hand over possession and  pay interest @17.5% per annum compounded quarterly for the period of default in handing over possession, pay Rs.5 lakhs on account of loss of enjoyment of possession, mental agony and harassment, Rs.50,000/- for litigation cost.
3. OP filed WS raising preliminary objections  that complainant is not maintainable as the same is beyond limitation period  prescribed under Section 24(A) Consumer Protection Act. The agreement provided for reference of disputes to arbitration otherwise also the agreement conferred exclusive jurisdiction on courts at Gautam Budh Nagar. The agreement provided for payment of penalty of Rs.5 per sq. ft. per month of super area for the period of delay in offering delivery of apartment. The OP was entitled to reasonable extension of time in delivery of possession on account of force majeure, the delay is attributable to recession in country economy. Ministry of Environment and Forest issued    notification dated 14.09.06 imposing restriction and prohibition on new project or activities based on potential environmental           impact.
4. Hundreds of  writ petition were filed by farmers of Noida/ Great Noida before High Court of Allahabad challenging acquisition in which vide order dated 21.10.11 High Court restrained Greater Noida Authorities and allottees (Developers) from carrying out development and implementing Master Plan 2021. Chronic default in payment of instalment on the part of buyers melt down real estate sector, hampered handing over possession. It prayed for dismissal of the complaint.
5.      In support of his case the complainant filed his own    affidavit in evidence. He also filed rejoinder to WS of OP.
6.      As compared to it the OP filed affidavit of Shri Anshu Adarsh,       AR.
7.      The complainant has filed written arguments relying upon    decision of National Commission in DLF vs. Mridul Estate Pvt.     Ltd. III (2013) CPJ 439. The OP has failed to file written   arguments.
8.      I have gone through the material on record. The objection of         OP regarding limitation does not hold good as  in case of   possession it is continuing. In this regard reliance can be placed on decision of National     Commission in Satish Pandey III (2015) CPJ 440.
9. The plea regarding arbitration cannot be sustained. In view of the decision of National Commission in Polymax Plast (Pvt.) Ltd. IV (2006) CPJ 172 objection regarding territorial jurisdiction is to be mentioned for being rejected only. In FA No.442/10 titled as Shanti Vs. Ansal Housing decided on 11.04.02 NC held that such a clause is not valid as CPC is not applicable to proceedings under Consumer Protection Act. Similar view has been taken by U.T. Commission, Chandigarh in III (2017) CPJ 8.
10. During arguments counsel for complainant submitted that now after 10 years. Complainant is not interest in possession. Complainant wants refund.
11. I have gone through the material on record and heard the arguments. The cases cited by complainant were decided long back. After that there has been a steep fall in the rate of interest. In the present scenario it would be just an equitable to allow interest @10% per annum which is mentioned in clause 4.E of the agreement also. Accordingly the OP is directed to refund the amount deposited by the complainant with interest @10% per annum from the date of deposit till the date of refund. Order to be complied within two months from receipt of copy of the order.
12.  Copy of the order be sent to both the parties free of cost.
13. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)