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Sanjib Saha & Another v/s Bengal Unitech Universal Infrastructure Pvt. Ltd.


Company & Directors' Information:- UNITECH LIMITED [Active] CIN = L74899DL1971PLC009720

Company & Directors' Information:- UNITECH (INDIA) PRIVATE LIMITED [Strike Off] CIN = U74899DL1983PTC015491

Company & Directors' Information:- BENGAL UNITECH UNIVERSAL INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45201DL1996PTC080900

Company & Directors' Information:- UNIVERSAL CORPORATION LIMITED [Active] CIN = U74899DL2000PLC103817

Company & Directors' Information:- UNIVERSAL INDIA LTD [Amalgamated] CIN = U17222WB1990PLC048613

Company & Directors' Information:- UNIVERSAL INFRASTRUCTURE COMPANY PRIVATE LIMITED [Active] CIN = U70101DL2010PTC208747

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- UNIVERSAL E P PRIVATE LIMITED [Active] CIN = U74899DL1982PTC013400

Company & Directors' Information:- A G UNIVERSAL PRIVATE LIMITED [Active] CIN = U25200DL2008PTC178400

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- UNIVERSAL PRIVATE LIMITED [Active] CIN = U45202PB1984PTC001388

Company & Directors' Information:- UNITECH CORPORATION PRIVATE LIMITED [Active] CIN = U74999PN2013PTC149478

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- K R UNIVERSAL PRIVATE LIMITED [Active] CIN = U74999HR2014PTC052725

Company & Directors' Information:- UNIVERSAL PVT LTD [Not available for efiling] CIN = U51909PB1948PTC001338

    Consumer Case No. 2597 of 2017

    Decided On, 28 November 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Complainants: K.V. Girish Chowdary, Advocate. For the Opposite Party: Babanjeet Singh Mew, Advocate.



Judgment Text


V.K. Jain, Presiding Member (Oral):

1. The complainants booked a residential flat with the opposite party in a project, namely, ‘Harmony in Uniworld City’, which the opposite party was to develop in Kolkata. An Agreement to Sell was executed between the parties on 3.6.2008 for sell of apartment No. 1901 in Tower-8 of the aforesaid project for a sale consideration of Rs. 59,68,877. In terms of Clause 5a(i) of the said agreement, the possession of the apartment was expected to be delivered to the complainants by 31.3.2011, subject of course toforce majeure circumstances. The possession of the apartment having not been delivered to them despite they having already paid Rs. 57,39,895 to the opposite party, the complainants are, therefore, before this Commission seeking refund of the aforesaid amount along with compensation etc.

2. The OP was served on 16.11.2017 but it did not file its written version. Therefore, its right to file the written version was closed vide order dated 7.2.2018. I have heard the learned Counsel for the parties and have considered the affidavit by way of evidence filed by the complainants. The documents filed by the complainants coupled with their evidence, prove the allotment made to them as well as payments made by them to the opposite party. Since the possession of the apartment was not offered to them by the date stipulated in the agreement, they are entitled to seek refund of the amount paid by them to the opposite party. The learned Counsel for the complainants states that even otherwise the matter is fully covered by the previous decisions of this Commission. A reference in this regard inter alia is made to Consumer Complaint No. 654 of 2015, Vikash Arora v. M/s. Bengal Unitech Universal Infrastructure Pvt. Ltd., decided on 9.1.2017. The order of this Commission in Vikash Arora (supra) to the extent it is relevant, reads as under:

“3. The complaint has been resisted by the OP which has inter alia alleged that the delay in construction is attributable to the delay in obtaining the statutory approvals pertaining to road, electricity, water, sewerage etc. beyond the control of the OP. It is further alleged that construction is in progress and the OP remains committed to deliver possession of the flats to the complainants.

4. The main question which arises for consideration in this complaint is as to whether the construction of the flat agreed to be sold to the complainants has been delayed on account of reasons beyond the control of the OP. It has been vaguely alleged in the written version that there was delay in obtaining approvals and permissions required for infrastructural work, without disclosing when the approvals and permissions were applied and when they were granted. The written version of the OP does not show what is the time normally taken for grant of such approvals and permissions and what was the time actually taken in this case. The reply does not indicate the objections if any taken by the statutory authorities to the applications of the OP seeking the requisite approvals and permissions. If the delay occurred on account of some defect or deficiency on the part of the OP itself, the statutory authorities cannot be blamed for the said delay. Moreover, the delay in this case was very substantial, more than five years from the committed date of possession having already expired and the completion of the flat allotted to the complainants nowhere being in sight.

5. I also find no merit in the contention that in the event of delay, the complainants are entitled to the agreed compensation @ Rs. 5 per sq. ft. per month for the period of delay, in terms of Clause 5c(ii) of the Agreement, since the above referred clause in my opinion applies to the cases where the allottee wants possession of the flat along with compensation and does not claim refund of the amount paid by him along with compensation. In any case, Clause 5e of the Agreement itself provides for refund along with interest @ 10% per annum in the cases where the developer is unable to deliver the possession of the flat to the buyer.”

3. The learned Counsel for the complainants states on instructions that no alternative flat was offered to the complainants at any point of time and in any case they are restricting their claim to the refund of the principal amount paid by them along with compensation in the form of simple interest @ 10% per annum in terms of Clause 5e of the Buyers Agreement, which reads as under:

“That if for any reason the Developer is not in a position to offer the Apartment herein applied for allotment, the Developer shall offer the Purchaser an alternative property or refund the amount in full with simple interest @ 10% per annum without any further liability to pay any damages or compensation.”

4. The complaint is,

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therefore, disposed of with the following directions: (i)The opposite party shall refund the principal amount of Rs. 57,39,895 to the complainants along with compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund with compensation. (ii)The opposite party shall pay Rs. 25,000 as cost of litigation to the complainants. (iii)The payment in terms of this order shall be made within three months from today. Complaint disposed of.
O R







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