SUDHANSHU POKHRIYAL vs M/S. UNITECH LTD.

The complainant booked a residential villa with the OP in a project namely ''Espace Premiere'', which the OP is developing in Nirvana Country-2, Sector-71 & 72 of Gurgaon. The sale consideration for the aforesaid villa admeasuring 2170 sq. ft. was agreed at Rs.3,16,31,452/-. As per the terms agreed between the parties, the possession was to be delivered within 24 months computed from 08.02.2012 i.e. the date on which the parties entered into a Buyers Agreement incorporating their respective obligations. The grievance of the complainant is that despite he having paid more than Rs.1.68 Crore and more than four years from the date of the Buyers Agreement having already expired, the possession of the villa has not been offered to him. He therefore, approached this Commission with the following prayers: PRAYER :-

In view of the above facts and circumstances, it is most humbly and respectfully prayed to this Hon''ble Forum may kindly be pleased to direct the Respondent:-

CLAIM A

a. To raise construction and hand over the possession of the Villa booked by the complainant to him on making payment of balance sale consideration.

b. The respondent be directed to disclose to the court as to where the money paid by the complainant Rs.1,68,79,366/- (Rupees One Crore Seventy Nine Thousands Three Hundred Sixty Six Only) has been utilized by the Respondent, and how much benefits the Respondent has realized from the said money, whereas the said money was to be used for the construction of the villa of the complainant.

c. To make payment of the following amounts being interest for withholding and utilizing the hard earned money of the Complainant -

a. Rs. 3,00,000/- being interest w.e.f. 10.12.11 till date on a sum of Rs.5,00,000/- being the booking amount / registration charges, vide Cheque bearing No. 086758 dated 10.12.2011 and

b. Rs.15,27,450/- being interest w.e.f. 30.12.2011 till date on a sum of Rs.25,45,750/- vide Cheque bearing No.086759 dated 30.12.2011

c. Rs. 47,056.80/- being interest w.e.f. 04.01.2012 till date on Rs.78,428/- paid by Complainant being Service Tax. vide Receipt No.315 dated 10.01.2012

d. Rs.8,77,500/- being interest w.e.f. 14.02.2012 till date on Rs.15,00,00,000/- paid by Complainant being amount including part installment due on 1162.02.2012 and Service Tax, acknowledged vide Receipt No. 343 dated 18.02.2012.

e. Rs.9,25,781.46/- being interest w.e.f. 28.02.2012 till date on Rs.16,24,178/- being part installment due on 11.02.2012 vide against Receipt No.358 dated 29.02.2012.

f. Rs. 6840/- being interest w.e.f. 29.02.2012 till date on Rs.12,000/- being interest on delay payment, acknowledged vide against Receipt No.359 dated 01.03.2012.

g. Rs.17,42,624.52/- being interest w.e.f. 10.04.2012 till date on Rs.31,39,864/- paid towards installment on 11.04.2012 including service tax thereon, duly acknowledged vide Receipt No 395 dated 11.04.2012.

h. Rs.17,88,883.24/- being interest w.e.f. 07.09.2012 till date on Rs.37,26,840/- paid towards part installment due on commencement of construction including EDC & IDC charges and Service Tax, duly acknowledged vide Receipt No. 495 dated 08.09.2012.

i. Rs.9,00,553.44/- being interest w.e.f 18.01.2014 till date on Rs.37,52,306/- paid towards installment due on completion of foundation including amount of Service Tax and interest, duly acknowledged vide Receipt No. 839 dated 18.01.2014. i.e. a total sum of Rs.81,16,689/- (Rupees Eighty One Lacs Sixteen Thousands Six Hundred Eighty Nine Only)

d. That the respondent be further directed to pay the rent which is being paid by the complainant i.e. Rs.43,000/- per month, from the month of February 2014, i.e. the promised date of delivery till the actual date of possession of the Villa.

OR,

IN ALTERNATIVE,

CLAIM - B :

To make refund of the following amount along with interest @ 18% per annum as detailed below:-

d. Rs.5,00,000/- along with interest @ 18% per annum w.e.f. from 10.12.2011 till date and

e. Rs.25,45,750/- along with interest @ 18% per annum w.e.f. 30.12.2011 till date

f. to refund Rs.78,428/- along with interest @ 18% per annum w.e.f. 04.01.2012 till date.

a. to refund Rs.15,00,000/- along with interest @ 18% per annum w.e.f. 14.02.2012 till date.

b. to refund of Rs.16,24,178/- along with interest @ 18% per annum w.e.f. 28.02.2012 till date.

c. to refund Rs.12,000/- along with interest @18% per annum w.e.f. 29.02.2012.

d. to refund Rs.31,39,864/- along with interest @ 18% per annum w.e.f. 10.04.2012 till date.

e. to refund Rs.37,26,840/- along with interest @ 18% per annum w.e.f. 07.09.2012.

f. to refund Rs.37,52,306/- along with interest @ 18% per annum w.e.f. 18.01.2014 till date.

i.e. a total sum of Rs.1,68,79,366/- (Rupees One Crore Seventy Nine Thousands Three Hundred Sixty Six Only) as Principal plus Rs.81,16,689/- as interest i.e. a total sum of Rs.2,49,96,055/- (Rupees Two Crores Forty Nine Lacs Ninety Six Thousands Fifty Five Only)

AND,

CLAIM - C :

Compensation for mental

Torture, agony, inconvenience and

Hardship caused. Rs.50,00,000/-

Litigation expenses Rs.2,50,000/-

It would be seen that the prayer made in the complaint is for possession of the villa booked by the complainant alongwith compensation or in the alternative for refund of the money paid by him alongwith interest @ 18% per annum.

The complaint has been resisted by the OP on the grounds which this Commission has already rejected in several consumer complaints. It is inter-alia stated in the reply filed by the opposite party that the construction of the project was affected due to shortage of water since the Hon''ble Punjab & Haryana High Court, vide order dated 16.07.2012, stopped the usage of underground water and directed use only of the treated water from the available Sewerage Treatment Plants. Since the availability of the sewerage treatment plants and water from such plants is very limited as compared to the requirement, it became difficult to maintain the timely schedule of construction. Relying upon clause 4(a) of the Buyers Agreement, it is claimed that the completion of the construction has been delayed on account of circumstances beyond the control of the opposite party. Relying upon clause 4(e), it is stated that in case the developer is unable to offer possession, it is liable either to offer an alternative property or to refund the amount received from the buyer alongwith interest @ 10% per annum. It is also claimed that as per clause 4(c)(iii) of the Buyers Agreement, in case of delay in delivering possession, the buyer is entitled to compensation @ Rs. 50/- per sq. yd. per month for the period the possession is delayed.

In Captain Gurtaj Singh Sahni & Anr. Vs. Manager, Unitech Limited & Anr. and connected cases, this Commission while allowing the complaints filed by the buyers of residential villa in the above referred project namely ''Espace Premiere'', Nirvana Country-2, Sector-71 & 72, Gurgaon inter-alia held as under:

" 3. It would thus be seen that admittedly, the opposite party had entered into Buyers Agreement with the complainants and promised to offer possession within two years from the date on which the said Buyers Agreements were executed. It is also not in dispute that the opposite party has not been able to complete the construction of the villa though more than 1? years have already expired from the date by which the last villa was to be handed over and more than three years have expired from the date by which the first villa was to be offered. Thus, the opposite party is at least 1 1/2 years behind schedule in each case and it is not known when it would be able to complete the construction.

During the course of hearing, I asked the representative of the opposite party to inform as to when it will be able to complete the construction of the villas and offer possession to the complainants. She states on instructions that the construction was likely to be completed within one year from the date on which it resumes but the opposite party cannot commit any particular date for resuming the construction of the villas.

Since it is an admitted position that the opposite party had entered into Buyers Agreements with the complainants and deliver possession to them within 24 months of the said agreements, the direction sought by those complainants for completing the construction of the villas in a time bound manner is eminently justified in the facts and circumstances of the case. Taking into consideration all the facts and circumstances of the case, the opposite party, in my opinion, should resume the construction within three months from today, complete the same in all respects within one year thereafter and offer possession after obtaining the requisite completion certificate, within three months thereafter. Thus, the villas after completion of construction and obtaining the requisite completion certificate should be offered to the complainants on or before 18 months from the date of this order.

The next question which arises for consideration is the quantum of compensation which should be paid to the complainants for the delay in completion of the villas. As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section 5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction ."

The learned counsel for the OP states on instructions that the construction of the villa has started in December 2016, though she admits that the possession of construction is very slow. She is not in a position to commit any particular time period for completion of construction and delivery of possession of the villa to the complainant. The learned counsel for the complainants states that considering that there is no reasonable certainty of the construction being completed and possession of the villa being offered to the complainant within a reasonable time, the complainant is not interested in waiting any more for the villa, and wants refund of the amount paid by him alongwith compensation in the form of interest. He further states that in order to avoid any further litigation in the matter, the complainant is restricting his claim to refund of the entire amount paid by him alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4.e of the Buyers Agreement which reads as under:

" 4.e Inability to offer villa:

That if for any reason whatsoever the developer is unable to offer the aforesaid villa to the purchaser, as agreed herein, the developer may offer the purchaser(s) an alternate property or refund the amount in full with simple interest @ 10% per annum. The developer shall not, in such an eventuality, be liable to pay any other charge or compensation."

In my view, considering that the OP is not in a position to even give a confirmed time limit for completion of the villa and delivery of possession to the complainant, he is entitled to refund of the amount paid by him alongwith reasonable compensation. Considering clause 4.e of the Buyers Agreement, the claim for refund alongwith compensation in the form of simple interest @ 10% per annum cannot be said to unreasonable or unfair. The complaint is therefore, disposed of with the following directions:

The OP shall refund the entire principal amount of Rs.1,68,79,366/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum on that amount from the date of each payment till the date on which the entire amount alongwith compensation in terms of this order is refunded to the complainant.

The OP shall also pay a sum of Rs.10,000/- as cost of litigation to the complainant.

The payment in terms of this order shall be made within three months from today.