This is a complaint under Section 17 of the Consumer Protection Act, 1986 (in short “the Act”) filed by the complainant through his power of attorney holder, wherein it is stated that on 14.8.2012 at the time of booking, the complainant paid initial amount of Rs. 4,80,633 as registration amount to the OP against the total cost of flat i.e. Rs. 68,90,210 and was regularly making payment of instalment to the OP. Subsequently, on 18.9.2012, an apartment bearing No. 0802 on Floor No. 08 in Tower B4 admeasuring 153.75 sq. mtr.was allotted to the complainant by the OP, in its project, namely, The Residences’ to be developed at Plot No. GHP 0001, Sector -117, Noida, Uttar Pradesh. It is stated that complainant applied for loan with HDFC Bank and a loan of Rs. 55,00,000 was sanctioned by the Bank out of that, an amount of Rs. 46,72,960 was directly paid to OP through DD No. 284838 dated 21.9.2012 and remaining amount was also paid to OP by HDFC Bank. It is stated that a Tripartite agreement to this effect was also executed between the parties. Thus, complainant deposited the entire amount of Rs. 68,90,210 as per demand raised by OP. It is stated that despite making payment to OP before time, the construction was delayed and upon visit at the site in April 2015, complainant found that construction has not yet been started by the OP as per time fixed by OP in allotment letter. It is stated that as per Clause 5 of the allotment letter, the possession of the apartment was expected to be delivered within 36 months from the date of allotment and OP even did not start the construction despite having received the entire sale consideration. It is stated that OP is neither refunding the amount with interest nor raising any construction nor handing over the possession of flat to complainant.
2. Alleging deficiency in service and unfair trade practice on the part of OP, complainant has filed the present complaint seeking direction to OP to refund Rs. 68,90,210 with interest @ 18% p.a. or alloting apartment bearing No. 0802, on Floor No. 08 in Tower B4 admeasuring 153.75 sq. mtr., which was allotted to the complainant by the OP, in its project, namely, ‘The Residences’ to be developed at Plot No. GHP 0001, Sector -117, Noida, Uttar Pradesh and also to pay Rs. 15,00,000 towards mental agony and pain and Rs. 51,000 towards cost of litigation.
3. Since, OP did not file its written statement within the prescribed limit as well as the extended period as provided under the Act, this Commission closed the right of the OP to file written statement vide its order dated 20.7.2016. The said order has not been challenged by the OP.
4. To prove, his case, power of attorney holder of the complainant Shri Ved Prakash Luthra filed his own affidavit reaffirming the contents of complaint case on oath. Complainant has proved on record, copy of GPA Ex. CW -1/1; copy of registration slip Ex. CW -1/2; copy of allotment letter Ex-CW-1/3; copies of payment receipts Ex-CW-1/4(Colly); copy of sanction letter Ex. CW-1/5; copy of tripartite agreement Ex. CW -1/6.
5. GPA Holder of complainant has also deposed having made the payment of entire sale consideration. He also deposed that in terms of allotment letter dated 18.9.2012 (Ex. CW -1/3) possession was to be delivered within 36 months from the date of allotment. It is stated that complainant has been waiting for more than 7 years for delivery of the possession, however, the OPs have failed to do so and even no construction has been started at the site.
6. Though, the evidence of the complainant has gone un-rebutted. However, OP has filed its written arguments, inter alia, raising preliminary objection that the complainant is not a consumer, complaint involved complicated question of facts and law which need to be proved by leading detailed oral as well as documentary evidence and that since the proceedings before the Consumer Courts are summary in nature, this Commission has no jurisdiction to entertain the present complaint. It is stated that the complaint is time barred in terms of Section 24A of the Act. The other objection raised is that as per Clause 14(b) of the Allotment Letter, dispute between the parties can be resorted through arbitration only as such this Commission has no jurisdiction to deal with the matter and in the event of delay, the opposite party is required to pay only the agreed compensation of Rs. 5 per sq.ft. per month for the period of delay.
7. I have heard the Counsel for the parties and perused the material on record.
8. In SwarnTalwar&Ors. v. Unitech Ltd., C.C. No. 347 of 2014 and connected matters decided by the Hon’ble National Commission on 14.8.2015, the complainants had booked residential apartment in project known as Unitech Habitat, which the opposite party was to develop on plot No. 9, Sector PI-II (Alistonia Estate) in Greater Noida. The opposite party however failed to deliver possession of the flats to the complainants within the time agreed between the parties and consequently the complainant sought refund along with interest @ 18% p.a. besides damages and cost of litigation. The complaints were resisted on the grounds identical to those which have been stated in the written arguments filed by the OP. Hon’ble National Commission relying upon the decision of the Hon’ble Supreme Court in K.A. Nagmani v. Housing Commissioner, Karnataka Housing Board, III (2016) CPJ 16 (SC)=IV (2016) SLT 482=C.A. Nos. 6730-6731, decided on 19.9.2012 and considering the extent of appreciation in the land value and increase in the cost of construction since 2006, rejected all the grounds taken by the OP and directed the OP to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount @ 18% per annum from the date of deposit till the date the said amount was paid to the flat buyers. The payment was directed to be made within six weeks.
9. Being aggrieved from the order passed by Hon’ble National Commission, OP preferred an appeal before the Hon’ble Supreme Court being Civil Appeal (Diary No. 35562 of 2015). Hon’ble Supreme Court vide its order dated 11.12.2015, dismissed the said appeal. The order passed by the Hon’ble Supreme Court reads as under:
“We have heard learned Counsel for the appellant and perused the record. We do not see any cogent reason to entertain the appeal. The judgment does not warrant any interference.
The Civil Appeal is dismissed.”
10. The objections which have been stated in the written arguments and contended during the course of arguments, have been rejected not only in SwarnTalwar&Ors. (supra), but also in several other matters including CC No. 487/2014, Manoj Kumar Jha&Anr. v. M/s.Unitech Ltd., decided on 18.1.2016. Those grounds have also been rejected by another Bench of Hon’ble National Commission in Suman Nandi &Anr. v. M/s.Unitech Limited &Anr., decided on 17.12.2015. In CC No. 368/2014, Shweta Kapoor &Anr. v. M/s.Unitech Limited &Anr., decided on 14.1.2016, Hon’ble National Commission again rejected identical grounds taken by the OP.
11. As regards the contention of the OP that as per Clause 15 of the Allotment letter, the dispute between the parties has to be determined by way of arbitration. The OP has raised frivolous objection in this regard. The complaint is maintainable as Section 3 of the Act states that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. The aforesaid argument also has no substance after judgment of National Commission in Aftab Singh v. EMAAR MGF Land Ltd. &Anr., III (2017) CPJ 270 (NC), wherein it is held that Arbitration Clause in Buyer’s Agreement between the Builder and complainant can’t circumscribe jurisdiction of Consumer Fora, notwithstanding the amendments made to Section 8 of Arbitration Act. The above judgment has been upheld by Hon’ble Supreme Court in Civil Appeal No(s). 23512-23513 of 2017 titled as M/s EMAAR MGF Land limited &Anr. v. Aftab Singh, I (2019) CPJ 5 (SC)=I (2019) SLT 102.
12. It is also contended that complaint involves complicated question of law and facts as such the same can’t be entertained by the Commission. I don’t find any complicated question of law and facts being involved in the present case. Accordingly, the aforesaid objection is rejected.
13. In view of the above discussion, OPs have failed to establish the grounds taken by it in explaining the delay in any manner. As noted above, the aforesaid grounds are rejected by Hon’ble National Commission in number of cases against Unitech Ltd.. The construction of the unit in question is incomplete even as on today. OPs have retained hard earned money of the complainant. As per complainant, there is hardly any construction at the site. In the absence of any evidence or explanation, failure to comply with the stipulation of delivery of possession in the terms and conditions of the
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Allotment letter, it stands established that OPs have committed deficiency in service and has also indulged in unfair trade practice. Since OPs are not in a position to offer possession of the flat, OPs shall refund the amount received from the complainant along with simple interest @ 10%. 14. In view of above discussion, I dispose of the complaint with the following directions: 1. The OPs shall refund the entire amount of Rs. 68,90,210 paid to it by the complainant within 8 weeks from today along with compensation in the form of simple interest on the aforesaid amount @ 10% p.a. from the date of each payment till the entire amount along with simple interest @ 10% p.a. in terms of this order is refunded. 2. The OPs shall also pay a sum of Rs. 25,000 as cost of litigation to complainant. 15. A copy of this order as per statutory requirements be sent to the parties free of charge. Thereafter the file be consigned to record room. Complaint allowed.