IN THE STATE COMMISSION: DELHI

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

Date of Hearing: 19.01.2021 

Date of Decision: 29.01.2021

Complaint No.1076/2019

IN THE MATTER OF

MR. NIPUN GARG

S/o Sh. Naresh Kumar Garg

R/o F.No.09, Sukhdham Aptts.

Sector-9, Rohini

New Delhi-110085

MRS. DEEPTI GARG

W/o Sh. Naresh Kumar Garg

R/o F.No.09, Sukhdham Aptts.

Sector-9, Rohini

New Delhi-110085….Complainant

VERSUS

          M/S SUPERTECH LIMITED

          Registered Office at:

          1114, 11^th Floor,

          Hemkunt Chamber 89,

Nehru Place,

New Delhi-110019                                           ....Opposite Parties

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:       Sh. Jalaj Aggarwal, Counsel for the complainant

                   Sh. Suresh Chandra Sharma, Counsel for the OPs

          ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by Sh. Nipun Garg and Smt. Deepti Garg, resident of New Delhi, for short complainants, against the M/s Supertech Limited, hereinafter referred to as OPs alleging deficiency of service and unfair trade practice on their part they having not delivered the possession of the flat booked by them bearing number 1302, 13^th floor, tower-B1, UP Country situated at TS-1, Sector 17A Yamuna Expressway, NOIDA UP, despite the agreed period having elapsed and despite almost total sale consideration having been paid and praying for the relief as under:-

It is accordingly prayed that this Hon’ble Court grant the following relief to the complainant:

1. Direct the OP to refund the money of the complainant i.e. Rs. 24,40,761/- alongwith the interest of 12% per annum from the date of deposit alongwith pendent lite and future interest at the same rate or such higher rate which this Hon’ble Commission may deemed fit in the interest of justice.
2. Direct the OP to pay a sum of Rs. 1,00,000/- to the complainants as compensation for harassment, inconvenience and mental agony caused by OP.
3. That a sum of Rs. 50,000/- be allowed as litigation costs.
4. Any other relief’s that this Hon’ble Court thinks fit and proper in favour of the complainant in the circumstances of the case.

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants had applied for the allotment of a residential flat in the project of the OP namely UP Country situated at TS-1, Sector-17A, Yamuna Expressway-201303, on 08.11.2011 opting for construction linked plan and paid booking amount of Rs. 2,00,000/- through cheque no. 006133 of ICICI Bank dated 04.11.2011. Further payment of Rs. 55,907/- was made by way of cheque no. 006134 dated 04.02.2012 ICICI Bank. The OP had consequently allotted flat no. 1302, 13^th floor, tower-B1 to the complainants in UP Country situated at TS-1, Sector 17A, Yamuna Expressway-201303, having Customer Code 1052750 and 1052748 in 2011, having an area of 900 sq. ft. for a total consideration of Rs. 25,59,074/- and issued allotment letter dated 06.02.2012 to the complainants. The complainants were assured of the possession of the said flat within a period of three years i.e. February 2015 counting it from the date of allotment to the complainants, failing which the OPs would be liable for damages. Till 18.02.2015 the complainants had paid Rs. 24,40,761/- to the OP and the remaining 5% amount was to be paid at the time of possession. However the complainants were surprised and became suspicious when they did not get any response from to the OP till April 2015 thus, sensing some foul play they visited the site of construction but they were shocked to see that the work on Tower No. B-1 where the flat was to be allotted was very slow. On making enquiries from the technical staff on the site, complainants were informed that the construction of Tower No. B-1 would take at least another two years. The complainants have alleged that the aforesaid facts would demonstrate that the OP has not only indulged in unfair trade practice but are also guilty of deficiency of services. In these circumstances the complainants had sought for the refund of the deposited amount but all the efforts done by them to get the refund could yield no results and proved an exercise in futility. This led to filing of this complaint for the redressal of their grievances.
4.           OPs were noticed and in response thereto they have filed their reply both on technical ground and on merit stating the complainants under the allotment letter had specifically agreed for terms and conditions namely date of handling over possession of the said unit, payment schedule, obligations of the OP to pay compensation for delay in handing over the possession of the said flat, force majeure circumstances, delay penalty etc. Secondly the complainants delayed the payment of instalments against the consideration of the said unit and failed to perform its obligations under the allotment letter on various occasions. Thirdly despite existence of the various force majeure circumstances the OP had taken all the steps to minimize the delay in the construction of the said project.  Fourth the delay in construction and handing over possession of the subject unit is directly attributable to the fact that in and around March, 2011 as much as 471 writ petitions were filed before Hon’ble Allahabad High Court at Allahabad, by the farmers, challenging the acquisition of land by State of UP in Noida and Greater Noida, which had been later allotted to various developers for the development of housing complex. Subsequently Hon’ble Supreme Court passed orders in SLP titled as Greater Noida Industrial Development Authority vs. Devendra Kumar and ors. (SLP No. 16366 of 2011), vide order dated 06.07.2011, reported in 2011 (12) SCC 375, affirming the judgment and final order of Hon’ble Allahabad High Court dated 12.05.2011 passed in Writ Petition No. 500/2010 titled “Devendra Kumar and ors. versus State of UP and ors” thereby  the land acquisition of village Shahberi was quashed and reverted back to its original land holders/farmers.
5.           Further the allegation of the OPs is that the complainants had booked the said flat for investment purposes to earn profit by re-selling the same at the opportune time when the real estate market would rise. However the real estate market showed decline resultantly the complainants have sought for the refund with interest purportedly on the ground of delay in handing over possession. The complainant thus cannot be termed as consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
6.           Besides the captioned complaint involves complex question of facts and law which requires elaborate and exhaustive evidence to decide the captioned complaint effectively and the same can only be decided by the Civil Court of competent jurisdiction. It cannot be adjudicated under summary procedure. On merit also they have denied the allegations of unfair trade practice as against them.
7.           The complainants have filed their rejoinder rebutting the contentions raised in the written statements and reiterating the averments contained in the complaint. Both the parties have filed their evidence by way of affidavit in support of their pleadings. Written arguments by both the parties have also been filed.
8.           This matter was listed before this Commission for final hearing on 19.01.2021 when the counsel for both sides appeared and advanced their arguments in support of their pleadings, the complainants for the refund of the amount deposited, the OPs having failed to hand over the possession of the flat booked by them within the agreed period despite payment to the extent of 95% of the total consideration having been made and the OPs for the dismissal of the complaint since the delay done, the only ground for seeking refund of the amount, is owing to circumstances beyond their control. Infact the OPs have emphatically stated that in terms of the agreement between the complainants and the OPs, the delay done in handing over the possession if is on the ground beyond their control would entitle the complainants for interest for the delayed period but not for the refund as prayed for. I have perused the records of the case and given careful consideration to the subject matter.
9.           Short question for adjudication in this complaint is whether the complainants is entitled to the refund of the amount, the OPs having delayed handing over the possession of the flat.
10. In the first instance I may advert to the defence of the OPs. Their defences are three folded, namely, delay done the factor not attributable to them since that was for reasons beyond their control. This defence cannot be accepted. The OPs of a very high stature as they claim could if there was difficulty in the subject project, accommodate the complaint in their some other project. Their first duty under the agreement is not to cause any anxiety to the complainant. Hence this objection since not sustainable cannot be accepted. Besides the court order staying the OPs from proceeding further in the project was vacated much earlier and the OPs if they wanted could have completed the project even earlier.
11. The next objection of the OP that the issues involved in the given case involving complicated question of law cannot be adjudicated by this Commission in summary procedure cannot be accepted relying on the judgment of the Hon’ble NCDRC in the matter of Rishab Kumar Sogani versus State Bank of India as reported in I [2020] CPJ 496(NC) holding in para 9 as under:-

At the outset, we first address ourselves to the issue whether both the fora below were right in relegating the matter to a Civil Court. The Hon'ble Supreme Court in Dr. J.J. Merchant & Ors. Vs. Shrinath Chaturvedi (2002) 6 SCC 635, wherein the Hon'ble Apex Court inter-alia observed as under:-

Further, under the Act the National Commission is required to be headed by a retired Judge of this Court and the State Commission is required to be headed by a retired High Court Judge.  They are competent to decide complicated issues of law or facts.  Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumers should be directed to approach the Civil Court.

It was next contended that such complicated questions of facts cannot be decided in summary proceedings.  In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided.  Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court.  For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary.  It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground.  It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided.  The Act provides sufficient safeguards."

12. Their third objection that the complainant has transacted for commercial purpose and for investment can also not be accepted for want of cogent and tangible evidence filed support.
13. This Commission, in Rajesh Malhotra & Ors. Vs. Acron Developers & 2 Ors., First Appeal No. 1287 of 2014, decided on 05.11.2015 held as follows:-

Therefore, in order to determine whether the goods are purchased for commercial purpose, the basic pre-requisite would be whether the subject goods have been purchased or the services availed of with the prime motive of trading or business activity in them, for the purpose of making profit, which, as held in Laxmi Engineering (supra) is always a question of fact to be decided in the facts and circumstances of each case".

14. In the present case, clearly the opposite party has not filed any proof that the complainant is involved in regular purchasing and selling of flats.  Clearly the act of trading or business on the part of the complainant has not been established. Accordingly the complainant would be treated as consumer.
15. Coming to the objection of the OPs on merit of the case, no tangible evidence has been led controverting the averments of the complainant.
16. Short question for adjudication in this complaint is whether the complainant is entitled for the relief as prayed for in the facts and circumstances of the case when admittedly the OPs have not been able to hand over the possession of the flat within the time as agreed to. Having bestowed my consideration to the facts at hand I am of the considered opinion that the complaint deserves to be accepted, the possession of the flat not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.
17. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
18. 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 Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (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 my 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.
19. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
20. The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
21.  The Hon’ble NCDRC in yet another matter, in the matter of Universal Infrastructure and Anr versus Binay Pal Singh and Anr. as reported in IV [2019] CPJ 437 (NC), relying on a judgement of the Hon’ble Supreme Court of India in the matter of Kolkata West International City Pvt. Ltd. versus Devasis Rudra, Civil Appeal 3182/2019, decided on 25.03.2019, noting that more than seven years have a already expired held that the complainant cannot be expected to wait indefinitely for possession of the allotted flat and thus entitled for compensation.
22. The Hon’ble NCDRC in the matter of STUC Awasiya Grahak Kalyaan Association and ors versus Supertech as reported in III [2019] CPJ 226 (NC) is pleased to hold that allottee cannot be compelled to accept possession at the belated stage and thus refund of the deposited amount alongwith compensation in the form of Simple Interest at the rate of 10% was ordered. The Hon’ble Supreme Court of India has taken the same view in the matter of Pioneer Urban Land and Infrastructure Ltd. versus Govindan Raghavan as reported in II [2019] CPJ 34 (SC).
23.  Besides, their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D’lima and ors as reported in II[2018] CPJ 1 (SC) are pleased to hold as under:

Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.

24. The Hon’ble NCDRC in the matter of Parasvnath Buildwell Pvt. Ltd. and Anr versus Varun Dev, as reported in II[2018] CPJ 212 (NC) is pleased to direct as under:

“Flat booked was never constructed. Allottee cannot be made to wait indefinitely for possession. They are entitled for refund. Refund allowed with 12% interest.”

25. The Hon’ble NCDRC has taken similar view in the following matters also, namely,

1. Emaar MGF Land Ltd. and Anr versus Amit Puri-II[2015] CPJ 568 (NC).
2. Parasvnath Exotica Residents Association versus Parasvnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

26. The Ld. Counsel for the OPs while arguing that the complainant is not entitled for the refund as prayed for submitted that as per agreement in the event of delay in handing over possession the complainant is entitled to the compensation only to the extent of Rs. 5/- per sq. ft. and not more. 
27. The Hon’ble Supreme Court of India, is pleased to pass an order on 02.04.2019 in Civil Appeal No. 12238 of 2018 and in Civil Appeal No. 1677 of 2019 in the matters of Pioneer Urban Land and Infrastructure Limited versus Govindan Raghawan and Pioneer Urban Land and Infrastructure Limited versus Geetu Gidwani Verma & anr. upholding the orders passed by the Hon’ble NCDRC and holding as under:-

We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.

The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed. The appellant is granted a period of three months from today to refund the amount to the respondent. All pending Applications, if any, are accordingly disposed of.

28. The Hon’ble Supreme Court of India in the matter of Wg. Cdr. Arifew Rahman Khan and Aleya Sultana and ors versus DLF Southern Homes Pvt. Ltd. (now known as BEGUR OMR Homes Pvt. Ltd.) and ors is pleased to hold as under:-

For the above reasons we have come to the conclusion that the dismissal of the complaint by the NCDRC was erroneous. The flat buyers are entitled to compensation for delayed handing over of possession and for the failure of the developer to fulfil the representations made to flat buyers in regard to the provision of amenities. The reasoning of the NCDRC on these facts suffers from a clear perversity and patent errors of law which have been noticed in the earlier part of this judgment. Allowing the appeals in part, we set aside the impugned judgments and order of the NCDRC dated 2 July 2019 dismissing the consumer complaint. While doing so, we issue the following directions:

1. Save and except for eleven appellants who entered into specific settlements with the developer and three appellants who have sold their right, title and interest under the ABA, the first and second respondents shall, as a measure of compensation, pay an amount calculated at the rate of 6% simple interest per annum to each of the appellants. The amount shall be computed on the total amounts paid towards the purchase of the respective flats with effect from the date of expiry of thirty-six months from the execution of the respective ABAs until the date of the offer of possession after the receipt of the occupation certificate;
2. The above amount shall be in addition to the amounts which have been paid over or credited by the developer at the rate of Rs. 5 per square foot per month at the time of the drawing of final accounts; and
3. The amounts due and payable in terms of directions (i) and (ii) above shall be paid over within a period of one month from the date of this judgment failing which they shall carry interest at the rate of 9% per annum until payment.

29. The Hon’ble Supreme Court of India in yet another matter, in the matter of IREO GRACE REALTECH PVT. LIMITED versus Abhishek Khanna and ors Civil Appeal Number 5785 of 2019 is pleased to hold as under:-

We direct the developer to refund the entire amount deposited by this respondent alongwith interest @ 9% simple interest per annum within a period of 4 weeks from the date of this judgment. The failure to refund the amount within four weeks will make the developer the developer liable for payment of default interest @ 12% simple interest per annum till the payment is made.

30. Having regard to the discussion done and the legal position explained I am of the considered view that, deficiency of service having been established and the act of the unfair trade practice on the part of the OPs as contemplated under Section 2(r) of the Consumer Protection Act 1986, having been made out, the ends if justice would be met if a direction is issued to the OPs to refund to the complainant the amount deposited with 9% simple interest and Rs. 20,000/- as litigation cost. This be done within a period of three months from the date of receipt of the order. 
31. Ordered accordingly leaving the parties to bear the cost.
32. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

29.01.2021

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