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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member
Nimish Gadodia —Complainant
versus
M/s. Bengal Unitech Universal
Infrastructure Pvt. Ltd. —Opp. Party
Consumer Case No.1439 of 2016
Decided on 19.6.2019
For the Complainant:Mr. Sushil Kaushik, Advocate with Ms Himanshi Singh and Mr Karan S Negi, Advocates
For the Opp. Party:Mr. Babanjeet Singh Mew, Advocate
IMPORTANT POINT
Consumer is not entitled to any reliefs if defect in the Flat and or deficiency in service of the Opposite Party is not proved.
Headnote:
Consumer Protection Act,1986—Section 21—Complaint—Real Estate—High rise apartments—Complainant made 95% of the total consideration—Construction of the project had not yet been completed, despite lapse of seven years—Delay due to delays in grant of statutory approvals and permissions—No deficiency of service and/or defects in the Flat proved—No force majeure conditions have been substantiated—Directions issued—Held that, Opposite Party shall pay interest @6% p.a. on the amount deposited by the Complainant from the due date of possession till the actual date of possession with cost of 7000. [Paras 3, 4 and 7]
Result: Complaint disposed of.
ORDER
C. Viswanath, Presiding Member—The Complainant stated in the Complaint that the Opposite party launched a new project “UNIWORLD CITY-AIR” in Kolkata which comprised of high rise apartments to be constructed in the land claimed to be acquired by the Opposite Party in Action Area –III, New Town Kolkata and promised to handover possession by 30.09.2011. On seeing the advertisement, the Complainant applied for two flats (i.e. Flat no. 1902 & 1903) one for himself and other for his brother, Rajesh Gadodia. As his brother was not available, both bookings were done in his name initially. House bearing No. 1903 was for Complainant’s own usage and House No.1902 was booked for his brother Rajesh Gadodia i.e. Complainant No.1 in C.C. No. 1440 of 2016. On 17.06.2008, the Complainant applied for House No. 1903 for the purpose of residence along with his family and paid booking amount/application money of Rs.16,07,040/-, vide Buyers Agreement dated 26.06.2008. The Complainant was allotted Flat/Apartment No. 1903 on 18th floor Tower 01 in the above complex, having a super area of approximately 3348 sq. ft., against a sum of Rs.1,68,22,160/- which comprised of Rs.1,60,70,400/- as basic price, Rs.3,50,000/- as Car Parking Charges and Rs.4,01,760/- as Preferred Location Charges (PLC). Apart from the above, the Opposite Party also demanded Rs.1,00,000/- towards club membership charges. After adjustment of the booking amount of Rs.16,07,040/-, the remaining consideration was to be discharged by the Complainant as per a time bound payment plan given in the Buyers Agreement. As per the Buyer’s Agreement, the Opposite Party committed/promised to deliver the possession of the apartment to the Complainants, complete in all respect on 30.09.2011. The Complainant took a housing loan of Rs.91,00,000/- from Axis Bank to pay the above amount and to this effect an agreement was also executed between the Complainant and the Financier i.e. Axis Bank. The Complainant paid regular EMIs. However, due to endless delay in possession, the Complainant after sometime repaid the entire loan to the financier bank. It was also mentioned that the buyer’s agreement was not shown to the allotee at the time of applying for the apartment/house and payment of earnest money. On 11.07.2008, the application, earnest money payment and allotment was carried out by the Opposite Party. The Buyer’s Agreement was shown and sent for signature to the Complainant almost after 12 days. It was alleged that the Complainant paid Rs.1,60,68,640/-, out of the total consideration of Rs.1,69,22,160/- which was approx. 95% of the total consideration, but the possession of the Apartment had not been given by the Opposite Party, despite commitment by the Opposite party to deliver the possession by 30.09.2011. Seeing no progress in construction and no response from the Opposite Party to the calls of the Complainant, a legal notice was sent on 01.06.2016 seeking date of possession, else taking Opposite Party to Court for redressal of grievance, but to no avail. The Opposite Party caused inordinate delay to initiate and reach the planned milestones of the project. Construction of the project had not yet been completed, despite lapse of seven years. Hence, the Complaint was filed.
2. Alleging deficiency on the part of Opposite Party, Complainant filed a Complaint before this Commission under Section 21 of the Consumer Protection Act, 1986, praying relief as under:-
• Direct the Opposite Party to handover the possession of the aforesaid apartment, complete in all respects to the Complainants immediately as per the Buyer’s Agreement and execute all the necessary and required documents in respect of the said apartment in favour of the Complainants or in the alternative to provide a ready to move in apartment to the Complainants of identical size and in similar locality or pay a sum calculated as per sq. area multiplied by Rs.7,000/- per sq. ft. being the available market rate of a similar house to
