RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 363 OF 2016
01.Baidya Nath Thakur
S/o Late Lakshme Shwar Thakur
Director of Postal Account
Maghdoot Bhawan, 4th Floor
Patna, GPO Campus, Patna
Bihar (India) Pin-800001.
02. Meena Devi
W/o Sri Baidya Nath Thakur
Director of Postal Account
Maghdoot Bhawan, 4th Floor
Patna, GPO Campus, Patna
Bihar (India) Pin-800001.
...Complainants
Vs.
Unitech Limited, UGCC Pavilion
Sector-96 Express Way
(Near Amity Management School)
Noida, Uttar Pradesh, India
Pin 201305
Through on Authorized Signatory
Mr. Amit Suri
...Opposite Party
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
For the Complainant : Sri Sushil Kumar Sharma, Advocate.
For the Opposite Party : None appeared
Dated : 19-03-2018
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
This is a complained filed before State Commission under Section 17 of the Consumer Protection Act 1986 by complainants Baidya Nath Thakur and Meena Devi against opposite party Unitech Limited, UGCC Pavilion, Sector-96, Express Way (Near Amity Management School), Noida, Uttar Pradesh, India with following prayer:-
“It is therefore prayed that your lordships may graciously be pleased to accept the complaint and be further pleased to issue notice to the opposite party and after hearing the parties be pleased to pass the
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appropriate order in the facts and circumstances of the case.
And/or
Pass any such order/orders as may be deemed fit and proper in the facts and circumstances of the case.
And for this the complainants shall ever pray.”
In complaint it has been stated by complainants that the complainants have entered into an agreement on 11-12-2012 with UNIHOMES PH-11 proposed to be developed by opposite party Unitech Limited and allotment of apartment bearing No. 1107 on 11th floor in Tower No.H1, having super built up area of 118.08 square meter was made in favour of complainants.
It has been further stated by complainants that in pursuance of allotment letter they had to pay Rs.48,28,255/- to opposite party, out of which they have paid Rs.20,24,978/- to opposite party till 29-07-2013 through cheques.
In complaint it has been further stated by complainants that the complainant No.1 is a government servant and complainant No.2 is his wife. They were having dream for a suitable residential accommodation near the national capital but their dream started to faint when they were unable to get possession of the booked apartment even after lapse of more than 36 months from the date of agreement dated 11-12-2012.
In complaint it has been stated by complainants that according to terms and conditions of agreement the possession of the apartment was expected to be delivered by opposite party within 36 months subject to force majeure circumstances beyond the control of the developer.
In complaint it has been stated by complainants that Clause D of Clause 5 of the agreement provides that if for any reason the opposite party is not in a position to offer the allotted apartment to the allottee, the developer/opposite party shall offer the allottee an alternate property or shall refund the amount paid by the allottee with simple interest at the rate of 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.
In complaint the complainants have stated that they personally contacted the authority concerned of opposite party but the authority gave
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only blank assurance that complainants will get the allotment very soon and did not pay heed to the request of complainants. Consequently the complainants sent two notices one dated 18-08-2016 and the other dated 15-10-2016 to opposite party in the light of judgment of Hon’ble Apex Court rendered against opposite party M/s. Unitech Residential Resorts Limited but the opposite party did nothing. Consequently complainant have filed complaint before this State Commission.
Notice has been issued to the opposite party.
Learned Counsel Sri Mohit Johari appeared for opposite party and raised preliminary objection against maintainability of complaint alleging that the complaint is barred by Section 8(1) of Arbitration and Conciliation Act 1996. The objection raised by opposite party was over ruled by this State Commission vide order dated 06-04-2017. Thereafter none appeared for the opposite party and no written statement was filed on behalf of opposite party. Consequently complaint has been proceeded exparte against opposite party.
Learned Counsel Sri Sushil Kumar Sharma appeared for complainants.
None appeared for opposite party.
I have heard learned Counsel for the complainants and perused records.
Complainants have filed affidavit in support of complaint. Annexure-1 of complaint is allotment letter which shows that apartment bearing No. 1107, on Floor 11 in Tower H1, admeasuring super area of 118.08 sq. mtr. in Unihomes PH-II has been allotted to complainants by opposite party. The sale price of apartment is Rs.48,28,255/- out of which Rs.1,87,577/- has already been paid by the complainants to opposite party before issuance of provisional allotment letter as registration amount. Complainants have filed consumer ledger of opposite party Unitech Limited. It shows that till 19-07-2013 complainants have paid Rs.20,24,978/- to opposite party. Clause 5D of allotment letter says that if for any reason the developer is not in a position to offer allotted apartment the developer shall offer the allottees an alternate property or refund the amount paid by allottees with simple interest at the rate of 10% per annum without any further liability to
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pay damages or compensation of any kind what so ever. The Clause 5A(i) of allotment letter says that possession of apartment is expected to be delivered by the developer within 36 months subject to force majeure circumstances as mentioned in it herein before.
Allotment letter is dated 11-12-2012 and the construction of apartment allotted to the complainants has yet not been completed. More than 36 months have passed. Therefore complainants are entitled to get back amount deposited with interest as provided in Clause 5D of allotment agreement.
In view of above complaint is allowed and opposite party Unitech Limited is ordered to refund Rs.20,24,978/- deposited by complainants with interest at the rate of 10% per annum from the date of deposit till date of actual payment.
Opposite party shall pay Rs.10,000/- also as cost of litigation to complainants.
Let copy of this order be made available to the parties within 15 days positively as per rules.
( JUSTICE A H KHAN )
PRESIDENT
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