Simira Swaroop & Anr vs M/S. Unitech Limited

Ajit Bharihoke, J.

Simira Swaroop and Mukul Swaroop, the complainants herein jointly booked apartment no..1002 having super area 1705 sq.ft. on the 10 th floor of

Tower No.23 of Group Housing Development Project “Unitech Horizon†situated at Plot No.6, Sector PI-2, Alistonia Estate, Greater Noida

undertaken by the opposite party developer. As per the allotment agreement, the complainant was required to pay Rs.,49,42,755/- as total

consideration for the apartment. The opposite party was to deliver possession of the apartment by 15.11,2008.

It is the case of the complainant that they have paid Rs. 47,32,755/- against the consideration amount. The opposite party, however, despite of having

received almost entire consideration amount has failed to adhere to the timeline for delivery and failed to deliver possession even more than eight

years after the stipulated date. Being aggrieved, the complainants have filed consumer complaint seeking refund of sum of Rs.47,32,755/- paid to the

opposite party alongwith 18% interest p.a. besides compensation and cost of litigation.

Opposite party despite service of notice of the complaint has failed to file written statement within the limitation provided under section 13 (2) of the

Consumer Protection Act, 1986. On 10.01.2018, counsel for opposite party appeared in the proceedings but no request for condonation of delay in

filing written statement or extension of time was made. Accordingly, right of opposite party to file written statement was closed.

Complainants have filed evidence supporting the allegations made in the complaint.

I have heard learned Shri Jalaj Aggarwal, Advocate for the complainant and Mr.R K Pandey, counsel for the opposite party and perused the

record.

Learned counsel for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On

perusal of allotment letter dated 07.06.2006 issued by the opposite party to the complainants, it is clear that vide said allotment letter the complainant

were allotted subject apartment No.1002 on 10 th Floor of Tower-23 of the development project Unitech Horizon at Greater Noida undertaken by the

opposite party. From the above document it is also clear that agreed consideration amount was Rs.49,42,755/-. It is also clear from clause 4 (a) of the

allotment letter that the opposite party had agreed to deliver possession of the subject flat to the complainant by 15.11.2008.

Complainants have categorically stated in the complaint that despite of having received substantial amount of Rs.47,32,755/-, the opposite party has

failed to deliver possession of the apartment till date i.e. more than eight years after the expiry of the stipulate date. As the opposite party has opted

not to file written statement despite of service of notice of complaint, the above said allegations of the complainants are deemed to have been admitted

as correct. Otherwise also, the complainants in order to prove said allegation have filed their own affidavits reaffirming the allegations. Thus, it stands

proved that despite of having received the substantial amount, the opposite party has failed to deliver possession of the subject apartment to the

complainants.

Mr. R K Pandey, Advocate has taken me through clause 8 (b) of the Builder-Buyer Agreement and submitted that opposite party was prevented

from completing the construction of project because of various restrained orders passed by National Green Tribunal and also because of depression in

the market, non availability of building material and labour etc. The aforesaid plea of the opposite party is not acceptable and appears to be an after-

thought. Had the plea of ‘Force Majeure’ been correct, the opposite party would have filed written statement with aforesaid plea. Otherwise

also, opposite party has adduced no evidence to substantiate the plea that opposite party was prevented by any circumstance beyond their control to

complete the project within time.

Now the question is as to what should be the amount of compensation? In this regard, counsel for the opposite party has drawn my attention to

clause 4 c (ii) of the Builder Buyer Agreement and submitted that as per the agreement between the parties, the opposite party company is liable to

pay 5/- per sq. ft. per month as compensation for delay in delivery of possession of the apartment.

Learned counsel for the complainants on the contrary have claimed 18% interest on the amount paid.

Clause 4 c (ii ) and 4 (e) of the Builder-Buyer Agreement deals with the compensation to be awarded by the opposite party in the event of their

failure to give possession by stipulated period. The relevant clauses are reproduced as under

4 c (ii)

“That the Company would pay charges @ Rs.5/- per s q. ft. per month for the period of delay in offering the delivery of the said apartment beyond

the period indicated in clause 4 (a) (i), save and except as for reasons beyond the reasonable control of the Company and Force Majeure events.

These charges would be adjusted at the time of Final Notice for possession.â€​

4 (e)

“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.â€​

Counsel for the opposite party has referred to clause 4 c (ii) of the Agreement and submitted that this being the case of failure of the opposite

party to deliver possession of the subject apartment, clause 4 c ( ii) of the agreement is attracted and the complainants are entitled to compensation @

5/- per sq. ft. per month of the super area. We do not find merit in the contention.

On conjoint reading of the above noted clauses 4 c (ii) and 4 (e), it is evident that clause 4 c (ii) of the Builder Buyer Agreement would be attracted

only in a case in which the delay is for reasonable period and it has occurred because of cogent unfavourable circumstances. This clause would not

apply in cases where builder after receiving substantial amount against the agreed consideration deliberately failed to take any steps for completing the

construction.

If such an argument is accepted, it would give handle to the developer to utilize the money paid by the consumers at a nominal cost of 5/- sq. ft. per

month of the super area instead of borrowing money from the financial institutions / banks. In the instant case, opposite party has not shown any

cogent circumstances or reason which prevented it to deliver possession within the stipulated period. Therefore, in my view, this case should be dealt

with under clause 4 (e) of the subject Builder Buyer Agreement, which provides that if the opposite party is not in a position to offer possession of the

apartment to the allottee, opposite party shall refund the consideration amount received with 10% p.a. Thus, in my view, opposite party is liable to

refund the money received from the complainants with 10% p.a. on the amount w.e.f. dates of respective payments of instalments..

In view of the discussion above, the complaint is allowed with following directions:

The Opposite party shall refund the entire amount of Rs.47,32,755/- ( Rupees Forty Seven Lakh Thirty Two Thousand Seven Hundred and Fifty

Five only) to the complainants within six weeks from today alongwith compensation of simple interest @ 10% per annum from the date of each

payment till the realisation of the amount.

The Opposite party shall pay a sum of 10,000/- (Rupees Ten Thousand only) as cost of litigation to the complainants.