Delhi

StateCommission

CC/630/2014

MR. SARABJEET SINGH - Complainant(s)

Versus

DIGVIJAY REAL ESTATE DEVELOPERS PVT. LTD. - Opp.Party(s)

RADHE SHYAM

25 Sep 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :25.09.2017

Date of Decision :10.10.2017

Complaint  No.630/2014

 

IN THE MATTER OF:

 

1.Mr. Sarabjeet  Singh,

S/o. Late Shri Satpal Singh

 

2. Ms. Parminder Kaur,

W/o. Shri Sarabjeet Singh

 

Both resident of

C-97, Mansarovar Garden,

Delhi-110015.                                                                                            ……Complainants

                                                                        Versus

 

1. Digvijay Real Estate Developers Pvt. Ltd.,

Through its  Directors,

Having its registered office at

D-29, 3^rd Floor, Defence Colony,

New Delhi.

 

2. Mr. Sanjeev Vora,

Director,

Having its registered office at

D-29, 3^rd Floor, Defence Colony,

New Delhi.

                                                                                   

3. Mr. Rakesh Chauhan

Director,

Having its registered office at

D-29, 3^rd Floor, Defence Colony,

New Delhi.

 

4. Mr. Deepak Bansal,

Manager Sales

Having its registered office at

D-29, 3^rd Floor, Defence Colony,

New Delhi.

 

5. M/s. New World Buildcon Pvt. Ltd.,

Through its Directors,

Having its registered office at:

401, Vipps Centre,

Masjid Moth, Greater Kailash,

New Delhi-110048.

 

6. Mr. Amit Arora,

Director,

Having its registered office at:

401, Vipps Centre,

Masjid Moth, Greater Kailash,

New Delhi-110048.

 

7. Mr. Nishant Arora,

Director,

Having its registered office at:

401, Vipps Centre,

Masjid Moth, Greater Kailash,

New Delhi-110048.

 

8. Mr. Ankush Arora,

Director,

Having its registered office at:

401, Vipps Centre,

Masjid Moth, Greater Kailash,

New Delhi-110048.

 

9. Mr. Nitin Arora,

 Director,

Having its registered office at:

401, Vipps Centre,

Masjid Moth, Greater Kailash,

New Delhi-110048.                                                                                     ….Opposite Parties

 

CORAM

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes

2.      To be referred to the reporter or not?                                                                                                        Yes

Present: Shri  Rishabh Sharma, counsel for the complainant.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

Shri  Sarabjeet Singh and Smt. Parminder Kaur, husband and wife, resident of Delhi, for short complainant number 1 and 2 respectively, have filed a complaint before this Commission under Section 17 of the Consumer Protection Act, 1986 against Digvijay Real Estate Developers Pvt. Ltd. & Ors, hereinafter referred to as opposite parties, alleging unfair trade practice on the part of the OP by not handing over physical possession of the flat despite the payment to this effect having been made as agreed to and despite the time for the purpose having been elapsed.

Facts of the case are these.

The complainants believing the opposite parties to be the owner and developers of the project “Golden Greens – The Golden side of Living and on the assurance that the construction of the apartment would be done as per schedule applied for allotment of an apartment  on 12.03.2012 by submitting the booking amount of Rs.One lakh. Consequently an apartmentt bearing no.201, 12 D in Golden Greens was allotted to the complainants based on the prescribed terms and conditions as indicated in the application form. Thereafter payments were made as demanded  as indicated below:

S.No.                   Date of payment                             Amount deposited

1.                12.03.2001                                      Rs.1,00,000/-

2.                          - do -                              Rs.2,50,000/-

3.                16.07.2011                                      Rs.3,34,975/-

4.                20.10.2011                                      Rs.3,34,975/-

5.                11.12.2012                                      Rs.4,60,000/-

                   Total                                       Rs.14,79,950/-

Total sale consideration of the flat was Rs.37,00,000/-. The complainants were assured that the construction of the flat would be completed as per time schedule.

However on 30.12.2012 the complainants were intimated that the Golden Green project would thereafter be developed by New World Buildcon Pvt. Ltd. and M/s. Digvijay Real Estate. That gave a cause for concern to the complainant forcing him to contact the opposite parties. The opposite parties assured him that there exists no cause for anxiety. The project would now be developed by the New World Buildcon Pvt. Ltd. and they would take up the project as good as the earlier one. The gravaman of the complainant is that no consent was obtained from him while bringing out such a radical change and transformation. Besides the OP never informed the complainant the progress in the project.

Being frustrated by this act of the OPs, the complainant sought for the refund of the amount furnished by him for the purpose, which request was out rightly rejected by the OP, forcing the complainant to file a complaint before this commission.

The complaint was filed on 15.12.2014, praying for the relief as under:

a)      Rs.14,79,950/-  along with interest thereon @18% p.a from 11.12.2012 till the date of refund by the OP.

b)      direct the respondent to pay compensation of Rs.10,00,000/- to the complainant on account of mental agony, torture and harassment suffered by the complainant at the hands of the OP and for having deprived the complainant of a having a commercial property;

c)      award costs of the proceedings to the complainant from the OP;

d)      pass such other or further order(s) as this Hon’ble Forum deem fit and proper in the facts and circumstances of the case and in the interest of justice.

The OPs were noticed. Since the OP did not file the written statement within the statutory period, their right to file counter was closed vide proceedings dated 02.05.2016. The complainants on the other hand have filed their evidence, reiterating on oath what was submitted in the complaint.

The matter was listed before  us for final hearing on 25.09.2017 when Shri Rishabh Sharma, counsel for the complainant appeared. None appeared on behalf of the OPs. Arguments  have been advanced and we have perused the documents.  

The ld. Counsel for the complainants is seeking refund because the OPs have not been able to do their part of the obligation despite he payment as agreed to has been made. Possession of the flat, keeping in view the progress in the project, does not appear to be possible in the near future. We have no document on record to doubt the statement made by the complainant. Infact, the written statement not having been filed, the statements of the complainants remains uncontroverted.

This goes to establish that the OP have been deficient in discharge of their duty. Having bestowed our anxious consideration to the facts at hand, we are of the considered opinion, that the complaint deserves to be accepted. It is a trite law that where possession of properly is not delivered within the stipulated time/ period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions, tantamount to unfair trade  practice as defined in the Consumer Protection Act, 1986.

Having arrived at the said conclusion, the core question for consideration is as to  how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of  Unitech on account of non-delivery of the allotted flat.

The provisions of the Act enable a consumer to claim and empower the Commission/ Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to  compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/ Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the OP. In Ghaziabad Development Authority vs. Balbir Singh – MANU/SC/0282/2004 (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/ allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/ plot. He is not only deprived of the flat/ plot, he has been deprived of the benefit of escalation of the price of the flat/ plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a plot of land.

Having regard to the facts and circumstances  of the case we are of the considered view that the complainant is entitled to the refund as prayed for and we order accordingly. The OP is directed to refund the principal amount within two months alongwith simple interst at the rate of 10% from the date of receipt of the money till the refund is done.

Now we may deal with the prayer made by the complainant regarding awarding of compensation. The complainants have prayed for compensation of Rs.10 lakhs. The broad principles to be kept in view while determining the compensation have been set out above. Keeping in view the facts of the case, also that the refund has already been ordered with simple interest @10% in the proceeding paragraph, and also noting that the interest is also the component of compensation, we feel that the compensation of Rs. One lakh would be just and  proper and we order accordingly. We also award Rs.20,000/- as litigation cost.

With these directions the complaint is disposed of leaving parties to bear their cost.

Copy of this order be sent to both the parties free of cost as statutorily required.

          File be consigned to Record Room.

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)