National Consumer Disputes Redressal
Arun Datta & Anr. vs Unitech Ltd. & Anr. on 6 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 359 OF 2015 1. ARUN DATTA & ANR. J-197, FF, Saket, New Delhi - 110 017. ...........Complainant(s) Versus 1. UNITECH LTD. & ANR. Ground Floor, Signature Towers, South City -I, Haryana 2. Unitech Limited, 6, Community Centre, Saket, New Delhi ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Complainant : Counsel for the complainants For the Opp.Party : Mr. Sandeep Sharma, Advocate
Dated : 06 Apr 2016 ORDER
The complainants, who are father and son, booked a residential flat with the opposite party-Unitech Limited on 20.06.2011 paying a sum of Rs.8 Lakhs by way of a cheque. A Flat No.F-00-0060 in Anthea Floors, Wildflower Country, Gurgaon was allotted to the complainants and the parties entered into Buyer's Agreement dated 12.12.2011 incorporating their respective obligations. The total sale consideration of the flat was agreed at Rs.1,52,10,514/- and the complainants have so far made the following payments to the opposite party:
Dated
Cheque No.
Amount (Rs.)
20/06/2011
482456 8,00,000/-
01/09/2011 763484 6,45,282/-
16/09/2011 763485 16,19,257/-
16/09/2011 763486 36,282/-
19/10/2011 763487 16,19,257/-
19/10/2011 763490 36,282/-
06/01/2014 000014 15,17,426/-
2. As per Clause 4(a) of the Buyer's Agreement, possession of the flat was agreed to be delivered within 36 months thereof. The opposite party however had a grace period of three months to deliver the said possession. Since the Buyer's Agreement was executed on 12.12.2011 the stipulated period of delivery of possession including three months grace period expired on 12.03.2015. Not to talk of offering the possession of the flat, the opposite party, according to the complainants, has not even taken up the construction of the building in which the flat sold to them was to be located. Being aggrieved the complainants are before this Commission seeking the following reliefs:-
A. It is prayed that the Opposite Party be directed to give the possession of floors immediately in the complex Country Township colony at Sector 70, Gurgaon, Haryana with necessary compensation to the complainant on a/c of various losses incurred by the complainant on arranging the funds on interest. or B. If at all the above floors cannot be allotted due to non commencement of construction of the floors the total consideration money amounting Rs.62,73,786/- be returned to the complainant along with interest at the rate of 18% which is appropriate in the circumstances and applicable on both the seller and purchaser by virtue of law equity in case of any default as per buyer agreement, in the light of facts that the complainants have raised loan from financial institutions like Bank etc for payment of installments.
C. It is further prayed that the OP's may be directed to compensate the complainants from the date of failure of OP's to deliver the possession to the complainant i.e. 11/12/2014 as per their agreement till the date of actual handing over of the possession of the floor. Further OP may be directed to pay litigation charges of Rs.55,000/- to pay for mental agony of the complainants.
3. The complaint has been resisted by the opposite party on several grounds including that there was delay in grant of environmental clearance required for the aforesaid project. Other grounds taken in the reply are identical to those which this Commission has repeatedly considered and rejected in a number of consumer complaints. The opposite party has however not disputed the booking made by the complainants or the payment made by them. This is also not the case of the opposite party in the reply filed by it that it had started the construction after receiving the environmental clearance and the said construction is progressing. In fact the reply contains no explanation of the opposite party for not starting the construction even after receipt of environmental clearance. The learned counsel for the opposite party states that since EDC charges, being demanded by the State Government, have been disputed by the builders including the opposite party, the building plans have not been sanctioned on account of non-payment of the said EDC charges and therefore construction could not be taken up.
4. In Swarn Talwar & Ors. vs. Unitech Ltd., C.C. No.347 of 2014 and connected matters decided on 14.08.2015, 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 on which the present complaint has been opposed. Rejecting all the grounds taken by the opposite party inter alia relying upon the decision of the Hon'ble Supreme Court in K.A. Nagmani Vs. Housing Commissioner, Karnataka Housing Board, C.A. No.6730-6731, decided on 19.09.2012 and considering the extent of appreciation in the land value and increase in the cost of construction since 2006, this Commission directed the opposite party 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.
Being aggrieved from the order passed by this Commission, the opposite party preferred an appeal before the Hon'ble Supreme Court being Civil Appeal (Diary No. 35562 of 2015). Vide signed order dated 11.12.2015, the Hon'ble Supreme Court 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."
5. The grounds on which the complaint has been resisted have been rejected not only in Swarn Talwar & Ors. (supra), but also in several other matters including CC No. 487/2014, Manoj Kumar Jha & Anr. Vs. M/s. Unitech Ltd., decided on 18.01.2016. Those grounds have also been rejected by another Bench of this Commission in Suman Nandi & Anr. Vs. M/s. Unitech Limited & Anr., decided on 17.12.2015. In CC No. 368/2014, Shweta Kapoor & Anr. Vs. M/s. Unitech Limited & Anr., decided on 14.01.2016, this Commission again rejected identical grounds taken by the opposite party.
6. As far as the delay in grant of environmental clearances is concerned, the case of the opposite party as disclosed in para 18 to 22 of the affidavit by way of evidence, read as under:
"18. That in terms of the EIA (Environment Impact Assessment) Notification dated 14.9.2006 published by the Ministry of Environment and Forest (herein after referred to as MoEF), all the construction projects having built up area of more than 20,000 sq. mtrs. are required to seek prior environmental clearance before commencing any construction activity on the project. Further in terms of the provisions of the said notification formation of State Environment Impact Assessment Authority (herein after referred to as SEIAA) and State Environment Impact Assessment Committee (herein after referred to as SEAC) by MoEF is required for granting Environmental Clearance. As per the MoEF guideline, all projects are required to be appraised by SEAC for Environmental Clearance of a project. After this the SEAC recommends the project to SEIAA. As per the above mentioned guidelines the whole Environmental Clearance process was to be completed with 120 days.
19. After the expiry of the last committee in the year 2010, MoEF formed SEIAA only on 20.4.2011 i.e. after a gap of 11 months. The SEAC and SEIAA once formed have a validity of 3 years. Due to accumulation of a large number of projects awaiting environmental clearance, the Opposite party made the same application on 10.9.2011.
20. The final EC presentation was made in the 65th meeting of SEAC held on 28.9.2012. The project was cleared by SEAC in the above mentioned meeting and it was subsequently recommended by SEAC for the grant of Environmental Clearance to State Level Environment Impact Assessment Authority (SEIAA) in October, 2012. However, due to the unfortunate and sudden death of the Mr. R.D. Sheokand, Retd. IAS, Chairman of State Environmental Impact Assessment Authority (SEIAA), Haryana, the EC application of the Opposite Party herein could not be processed by SEIAA. The SEIAA was not able to consider any projects recommended by SEAC for grant of final Environmental Clearance till a new Chairman was nominated.
21. Subsequently, the MoEF published the Gazette Notification appointing the Chairperson, SEIAA only on 5th April, 2013. As per the Government guidelines, no construction activity can commence on any project without first obtaining the EC. In fact the time taken for the said clearance was the main cause for delay in the commencement of project work and the said reasons were completely beyond the control of the Opposite Party herein. The said situation was undoubtedly unforeseen by the Opposite Party at the time of launching the project, which in turn has led to the delay in completion and hence handing over of the possession of the Apartment to the complainant herein. The said delay on the part of the Government Authority to grant the pre-requisite environmental clearance was beyond the control of the Opposite Party herein and as such no negligence can be attributed on the part of the Opposite Party. It is also pertinent to mention here that the reasons contributing to the delay in starting and handing over of the Apartment to the buyers were duly communicated to the each of the buyers, including the Complainant herein.
22. The Environmental Clearance was finally received only on 10.1.2014. Consequently there was a considerable gap in commencing the construction activities, as without such Clearance/permission, it was impossible for the Opposite Party to move ahead with the Project."
It would thus be seen that the opposite party knew, years before accepting booking from the complainants that since the size of the project was planned to be more than 20000 sq. ft. of built up area, environmental clearance would be required and the said clearance can be given only after the project is approved firstly by the State Environment Impact Assessment Committee and then by State Level Environment Impact Assessment Authority. Obviously, the opposite party had no control over the time which the aforesaid authorities could take in granting the requisite environment clearance. In my view, considering the aforesaid requirement it was obligatory for the builder to either obtain the requisite environment clearances before accepting any booking in the aforesaid project or at-least to inform the buyers that the construction would commence only after obtaining the requisite environment clearance and that they were yet to apply for obtaining the said clearance. This would be more necessary in a case where the builder is promising a particular time frame for delivering a possession of the house to the buyer. If such a disclosure is made to the buyer and thereafter he chooses to make a booking knowing fully well that the builder cannot be held responsible for the delay attributable solely to the concerned environmental authority in granting the requisite environmental clearance, it will not be possible to hold the builder responsible for delay to the extent the said delay is attributable solely to the inaction on the part of the concerned environment authority. If however the delay in the grant of the requisite environmental clearance can be attributable wholly or partly to the builder, he would be responsible for the delay to the extent it can be attributable to the deficiency or delay on his part.
In the present case, the opposite party, as per its own case, applied for the requisite environmental clearance on 10.09.2011. Not only the State Environmental Impact Assessment Committee but also the State Level Environmental Assessment Authority were in place at that time. The opposite party however accepted booking from the complainants 20.06.2011 i.e. month before obtaining the requisite environmental clearance. Despite that the opposite party chose not to disclose to the buyers that considering the size of the project environmental clearance was obligatory and it had not applied for obtaining the said clearance. Had that been done, the buyer would have taken a call as to whether it wanted to make a booking in a project which required environmental clearance which had not even been applied for by the builder. Such a disclosure having not been made the opposite party was clearly deficient in rendering services to its consumers in the aforesaid project such as the complainants before this Commission.
8. It is an admitted position that the construction of this project is yet to commence. However, the opposite party has been demanding and accepting construction linked installment from the buyers in the aforesaid project. A perusal of the payment plan filed by the complainants would show that the 4th instalment was payable on commencement of construction whereas the 5th to 13th installments were payable on completion of Foundation Work, casting of Ground Floor Roof, casting First Floor Roof, casting Second Floor Roof, completion of Brick Work & Inter, completion of Flooring, completion of Internal Electrifi, completion of Internal Plumbing and completion of External Plaster respectively. The opposite party therefore ought not to have accepted any further payment from the buyers considering that it had not even started the construction and in fact the building plan for the said project had also not been approved. In my opinion, instead of demanding/accepting further construction linked installment from the buyers, the opposite party ought to have informed then that the project requires environmental clearance and since the said clearance had not been obtained they had not started the construction of the project and consequently the payment of further installments should be deferred. Such a course was not adopted by the opposite party. This was yet another act of deficiency on the part of the opposite party in rendering the services to the complainant.
9. Since the time stipulated in the Buyer's Agreement for delivering possession to the complainants has already expired and the opposite party has not commenced the construction, the complainants cannot be asked to want indefinitely and they are entitled to refund of the amount paid by them to the opposite party along with appropriate compensation.
10. It transpired during the course of hearing that the complainants have taken housing loan for making payment to the opposite party and they have paid simple interest @ 14.16 % to Standard Chartered Bank from whom the said housing loan was taken. Therefore, the financial loss to the complainants needs to be computed @ 14.16% interest per annum. Besides compensation for the financial loss actually suffered by them, the complainant are also entitled to some compensation for the mental agony and harassment suffered by them on account of the opposite party having not honoured its contractual obligation. A flat buyer books a residential flat for the purpose having shelter over his head not for the purpose of making gains in the form of compensation on the money which he pays to the builder. Had the complainants known that the opposite party will not be honoured its contractual obligation, they would have gone for some alternative booking/accommodation instead of making a booking with the opposite party. It is not known at what price such flats are currently available in the market, but it cannot be denied that there has been a steep appreciation of land price in the market in the recent years. The learned counsel for the complainants submits that in order to avoid any further litigation, the complainants are ready to accept compensation in the form of simple interest @ 14.16% p.a. on the amount paid by them to the opposite party but they request for award of compensation on account of mental agony and harassment suffered by them at the hands of the opposite party. Considering all the facts and circumstances, the complaint is disposed of with the following directions:
(i) The opposite party shall refund the entire amount paid by complainants along with compensation in the form of simple interest @ 14.16% per annum computed from the date of each payments till the date on which the entire payment in terms of this order along with the compensation in the form of interest is made.
(ii) The opposite party shall pay a sum of Rs.2 Lakhs as compensation to the complainants for the mental agony and harassment suffered by them.
(iii) The opposite party shall pay a sum of Rs.10,000/- as the cost of litigation.
......................J V.K. JAIN PRESIDING MEMBER