National Consumer Disputes Redressal
Belu Syal vs Unitech Hi-Tech Developers Ltd. & Anr. on 31 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1272 OF 2015 1. BELU SYAL D-1/2, VASANT VIHAR, NEW DELHI-110057 ...........Complainant(s) Versus 1. UNITECH HI-TECH DEVELOPERS LTD. & ANR. GRANDE PAVILLION SECTOR-96, ESPRESS WAY (NEAR AMITY MANAGEMENT SCHOOL) NOIDA-201305(U.P.) 2. UNITECH ACACIA PROJECTS PVT. LTD. REGD. OFFICE: 6, COMMUNITY CENTRE, SAKET, NEW DELHI-110017 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER
For the Complainant : Mr. Sanat Kumar, Sr. Advocate Assisted by Mr. Sunil Kumar Jha, Advocate For the Opp.Party : Ms. Kartika Sharma, Advocate With Mr. Somesh Tiwari, Advocate Dated : 31 Jan 2017 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Belu Syal, the complainant herein has filed consumer complaint against the opposite parties alleging that on 12.10.2010 the complainant applied for registration of allotment of a residential apartment in the development project Burgandy undertaken by the opposite parties. At the time of registration the complainant paid 10% of the consideration amount Rs.35,30,000/- and he was allotted Bareshell apartment No.1002 on 10th level of Tower-1 vide allotment letter 20th October, 2002. Total sale consideration agreed between the parties was Rs.3,68,14,494/- inclusive of basic sale price, preferential location charges, if any, lease rent as also the space for car parking excluding applicable taxes. The terms and conditions of allotment agreement were signed by the complainant on 9.11.2010. As per clause 5 a (i) of the terms and conditions, opposite parties were supposed to give possession of the apartment within 30 months of the receipt of duly signed terms and conditions i.e. in May 2013.
2. The complainant has also alleged that opposite party has failed to deliver possession of the apartment despite the fact that the complainant has paid 95% of the consideration amount i.e. Rs.35,30,000/- at the time of registration, Rs.2.5 crores on 30.11.2010 and Rs.71,48,985/- on 31.1.2011 as per the demand. The complainant has filed insurance claim seeking possession of the apartment with compensation in terms of clause 5 (v) of terms and conditions and allotment or in the alternative refund of sum of Rs.3,56,78,985/- paid by him with interest @ 18% p.a. compounded quarterly from the date of deposit i.e. 9.11.2010. The complainant has also claimed further compensation of Rs.5 lakhs for mental torture and harassment caused on account of deficiency in service on the part of the opposite parties.
3. Opposite parties on being served with the notice of the complaint have filed a joint written statement. They have admitted that the apartment in question was allotted by the opposite parties developers to the complainant. They have also admitted that agreed consideration amount was Rs.3,68,14,494/- against which the complainant had paid 95% amounting to Rs.3,56,78,985/- by 3.1.2011. The opposite parties, however, have denied any deficiency in service on their part and taken the plea of Force Majeure which prevented the opposite parties to complete the project and deliver the possession of apartment to the complainant. The opposite parties have tried to justify the delay in completing the construction of apartment and offering possession to the complainant on three major counts, namely:
a. That the opposite party was prevented from construction because of agitation of farmers who were seeking increase in compensation and allotment of developed plots in lieu of their land acquired by the authorities.
b. The Hon'ble High Court of Allahabad while dealing with bunch of writ petitions filed by various farmers had restrained Noida Authority as well as the opposite party from carrying out any development work and implementing the Master Plan 2021 till the observations and directions of National Capital Regional Planning Board were incorporated in Master Plan 2021 to the satisfaction of the said Board.
c. The National Green Tribunal had passed an order on 17.09.2013 directing stopping of construction activity in and around 10 km distance of Okhla Bird Sanctuary. The Opposite Parties pleaded that subject project falls within 10 km. of said bird sanctuary. Therefore, the opposite party was prevented from constructing at the site till the order of National Green Tribunal dated 17.09.2013 came to replaced by a notification issued by Government of India on 19.08.2015 declaring the Eco Sensitive Zone as the area within 100 meters around the Okhla Bird Sanctuary.
d. The restrictions were imposed by National Green Tribunal on use of ground water for construction purpose in Noida and Greater Noida.
e. There was acute shortage of labour during the disputed period.
4. Complainant as well as opposite parties have filed affidavit evidence in support of their case.
5. We have heard learned counsel for the parties and perused the record.
6. From the record as well as the submissions made by respective counsel for the parties, only defence of opposite parties is the Force Majeure clause in the Builder-Buyer Agreement. It is argued by learned counsel for the opposite parties that that there is no deficiency on the part of the opposite party as they were prevented from completing the project within the stipulated period because of the circumstances detailed in the written statement.
7. As the opposite party is justifying the delay in completing the construction and delivery of possession on the ground of Force Majeure, the onus of proving the Force Majeure circumstance lies squarely on the opposite party. As regards the plea that opposite party was prevented from undertaking construction activity on the subject plot because of farmers agitation seeking enhanced compensation and develop plot in lieu of their acquired land, no cogent evidence has been led in this regard. Therefore, said plea is liable to rejected.
8. So far as plea of the stay order issued by Hon'ble High Court of Allahabad dated 21.10.2011, it may be noted that this plea was considered and rejected by the Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. and Ors. decided on 20.06.2016. Relevant observations of the Coordinate Bench are as under:
"As far as the judgment of Allahabad High Court dated 21.10.2011 is concerned, learned counsel for the complainant submits that the said judgment did not pertain to the land in question. He has produced on record a copy of the said judgment and submits that it relates only to the land allotted in Sector 91, 135 and 136. The learned counsel for the opposite party is unable to show to us how the aforesaid order dated 21.10.2011 pertains to the land on which the project, 'The Burgundy' was to be developed by it. Moreover, our attention has not been drawn to any direction of the High Court restraining the opposite party from carrying out development on the land in question. Hence, reliance upon the aforesaid order dated 21.10.2011 in Writ Petition No. 37443 of 2011 is wholly misplaced.
9. We find no reason to disagree with the judgment of the Coordinate Bench. Hence, the reliance placed by the opposite party on order of Hon'ble High Court dated 21.10.2011 in writ petition no. 37443 of 2011 is wholly misplaced.
10. The opposite party in support of Force Majeure has relied upon order dated 11.06.2013 passed by National Green Tribunal in application no. 59 of 2011 Vikram Singh Vs. Union of India and Ors. which prohibits extraction of ground water for the purpose of construction activities till the next date of hearing before the said Tribunal. The stay order by the National Green Tribunal in our view can be no justification for non completion of project and delivery of possession of the apartment to the complainant. Similar plea came to be considered and rejected by the Coordinate Bench of this Commission in the matter of Cap. Gurtaj Singh Sahni & Anr. Vs. The Manager, Unitech Ltd. & Anr. in CC No. 603 of 2014 decided on 02.05.2016. Relevant observations of the Coordinate Bench are reproduced as under:
"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."
11. Even in the instant case, the written statement of the opposite party does not record any effort made by the opposite party to obtain water for construction from alternative sources. Thus, in our view, the reference to the direction of National Green Tribunal in only an excuse to justify the inordinate delay on the part of the opposite party to complete the project and failure of delivery of possession to the complainant.
12. The opposite party has also taken a defence that it was prevented from completing the project in time because National Green Tribunal vide order dated 17.09.2013 put a restrained order on the construction within a radius of 10 km around Okhla Bird Sanctuary. The aforesaid defence was considered and rejected by Coordinate Bench of this Commission in CC no. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. & Ors. We do not find any reason to differ from the aforesaid view. It is pertinent to note that order of National Green Tribunal is of no avail to the opposite party for the reason that as per the Builder Buyer Agreement between the parties, the possession of the apartment was supposed to be delivered to the complainant latest by May 2013. As there is no explanation on the part of the opposite party as to why possession of apartment was not delivered by the agreed date, opposite party cannot be permitted to take benefit of a restrained order passed by National Green Tribunal after the agreed date of delivery of possession of the apartment to the complainant.
13. The last excuse given by the complainant is that project could not be completed because of shortage of labour. No cogent evidence in support of this contention is adduced. Therefore, we are not inclined to accept the above explanation.
14. In view of the discussion above, it is evident that opposite party has failed to prove its defence of Force Majeure. Undisputedly, the opposite party has failed to deliver possession of subject apartment to the complainant even after expiry of more than two years from the stipulated date of delivery of possession without any reasonable excuse. Thus, we are the view that opposite party is guilty of deficiency in service. In our aforesaid view, we are supported by judgments of Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Ltd. & Ors. and Cc no. 367 of 2015 Richa Aggarwal & Anr. Vs. Unitech Hi-Tech Developers Limited passed in favour of the complainants in respect of same development project.
15. Now the question is as to what should be relief to be given to the complainants. Learned counsel for the complainant has submitted that as per the agreement, opposite party was supposed to deliver possession of the apartment to the complainant by May 2013. Even after the stipulated date of delivery of possession, the opposite party has not offered possession of the apartment to the complainant. The complainant, therefore, is now interested in refund of the amount paid by him with 18% interest. Counsel for the opposite party on the contrary has contended that demand of the complainant is not justified and at best if the matter is decided against the opposite party, order of refund with compensation @ Rs. 10/- per month of super area would meet the ends of justice.
16. Clause 5 (vi) of the terms and conditions attached to the allotment reads as under:
"5. POSSESSION OF APARTMENT
a) Letter for fit outs and interiors:
(vi) If for any reason the developer is not in a position to offer the apartment, the developer 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/charges to the allottee(s) on this account."
17. As the opposite party has failed to deliver possession of the allotted apartment to the complainant even after three years from the stipulated date of delivery, in view of the above clause in the agreement between the parties, the opposite party is expected to refund the amount paid by the complainant with 10% interest p.a. more so because of the fact that complainant has failed to lead any cogent evidence to prove the actual loss suffered by him was more than 10% p.a.
18. In view of the discussion above, the complaint is allowed with following directions:
The Opposite parties shall refund the entire amount of Rs. 3,56,78,985/- paid to it by the complainant within six weeks from today alongwith compensation in the form of simple interest on that amount @ 10% per annum from the date of each payment till the date on which the entire amount alongwith simple interest @ 10% per annum in terms of this order is refunded.
The Opposite parties shall pay a sum of Rs.10,000/- as cost of litigation to the complainant.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER