Delhi

StateCommission

CC/12/2016

MR. MUKESH KAPUR & ANR. - Complainant(s)

Versus

M/S UNITECH LTD. - Opp.Party(s)

G.D. CHOPRA

18 May 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 18.05.2018

                                                                                                              

                                                                   Date of Decision:22.05.2018

 

 

Complaint No. 12/2016

 

 

IN THE MATTER OF:

 

Sh. Mukesh Kapur

S/o G.N. Kapur,

R/o Windsor Palace,

6A, Iron Side Road,

4^th Floor, Block C,

Flat No. 402, Kolkatta

 

Ms. Anshu Kapur

W/o Mr. Mukesh Kapur

R/o Windsor Palace,

6A, Iron Side Road,

4^th Floor, Block C,

Flat No. 402, Kolkatta                                                    ….Complainants

                                                                                                                  

 

VERSUS

 

         

M/s Unitech Limited                                

Through its managing director,

Mr. Sanjay Chandra,

Havings its registered office at,

6, Community Centre,

Saket, New Delhi.                                                           ….Opposite Party

 

         

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. G.D. Chopra, Counsel for the complainant

                   Sh. Ankur Setia, Counsel for the OP

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

 

1.           This is yet another complaint filed before us for adjudication whether the complainant is entitled for the refund with interest from the OPs, they having failed to deliver the possession of the flat booked by the complainant despite the agreed time for the purpose having been elapsed and despite 95% of the total consideration as per the payment schedule having been made paid.
2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           Mr. Mukesh Kapur and Mrs. Anshu Kapur, husband and wife, resident of Calcutta, have filed this complaint before this Commission under Section 17 of the Consumer Protection Act 1986, for short complaint against M/s Unitech Limited, hereinafter referred to as Opposite Parties, alleging deficiency of service on the part of the OPs in not handing over possession of the flat despite substantial payment, having been made, and praying for the relief as under:

 

1. To pass an order directing the Respondent to pay the amount of Rs. 21,00,000/- (Rupees twenty one lacs only) for the losses already incurred.
2. To pass an order directing the Respondent to deliver possession of said Apartment no. 1101, on the 11^th floor of Tower 23, Unitech Horizon at Greater Noida by the date to be fixed by the Hon’ble State Commission.
3. To direct the respondent to bear and pay the actual cost of the litigation to the complainants.
4. To pass any other or relief, which this Hon’ble Commission deem fit and proper in favour of the complainants and against the opposite parties in the interest of justice.

 

4.           The complainants had applied for the allotment of an apartment with the OP in their project in Greater Noida. Total sale consideration for the purpose was Rs. 48,57,505/-. In terms of the letter dated 08.05.2006 issued by the OP, the complainants were allotted an apartment of the size of 1708.00 Sq. Ft. number 1101, on the 11^th floor of Tower 23, Unitech Horizon at Greater Noida, U.P. Possession was agreed to be handed over by 15.11.2008 in terms of para 4.a. of the letter which reads as under:

1. That the possession of Apartment is proposed to be delivered by the Company to the Allottee (s) by 15^th November 2008 subject to force Majeure circumstances beyond the control of the company and upon registration of Lease Deed/ Sub Lease Deed/ Tripartite Deed, provided all amounts due and payable by the Allottee (s) as provided herein have been paid to the company. It is, however, understood between the parties that various Blocks/Towers comprised in the complex shall be ready and completed in phases and after the completion, the Apartments will be handed over to the respective Allottee (s) of different Towers.
2. The company shall be entitled to reasonable extension in delivery to the Allottee (s) of the possession of Apartment in the event of any default or negligence attributable to the Allottee (s) fulfilment of Terms and Conditions of the Allotment.

 

5.           The complainants had paid by 01.09.2008 an amount of Rs. 46,51,302/- which is 95% of the total sale consideration. But the possession of the flat was not delivered. The complainants have alleged that owing to the non handing over of possession they are suffering mental agony and financial hardship owing to the fact that they are now residing on a rented accommodation. In these circumstances the complainants have approached this Commission for the redressal of his grievances.
6.           OPs were noticed. However they not having filed the written statement within the statutory period, their right to file it stood closed vide proceedings recorded on 09.11.2016. The complainants have filed their evidence by affidavit. The matter was listed before me on 18.05.2018 for final hearing. Both the Counsel appeared before me and advanced their arguments. I have perused records of the case and given a careful consideration to the issues involved.
7.           At the very outset the ld. Counsel for the complainants while alleging that the OPs have indulged in unfair trade practice, has prayed for refund of the amount with interest as he is no longer interested in the possession of the apartment ten years after the due date. Infact completion of the construction of the apartment even on the date of filing of the complaint does not seem even remotely a possibility. There exists nothing on record to controvert the submissions made or allegations levelled.
8.            In that view of the matter the inevitable conclusion is that there was gross “deficiency”, as defined in Section 2(1)(g) of the Act, on the part of OP in its failure to deliver possession of the subject flat to the complainants in terms of the agreement to sell. It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade as defined, under Section 2(r) (ii) of the act, as well. (See: Lucknow Development Authority vs. M.K. Gupta-(1994) 1 SCC 243).
9.           The complainant has two folded arguments, namely, having deposited the amount he has lost the interest which he would have otherwise earned and, secondly, due to non-delivery of the possession of the flat he had to live on rented accommodation. Further the OPs have earned interest out of the money deposited and by efflux of time the value of the land has gone up and now if he looks for alternate he would be required to pay a lot more. The Hon’ble NCDRC in the matter of Lalit Kumar Gupta and ors versus DLF Universal Ltd., as reported in III [2002] CPJ 54 (NC) is pleased to hold as under:

 

“There has been a delay in delivery of the possession of the Town house which is deficiency in service within the definition of the word under the Consumer Protection Act 1986”

 

10. The complainant has thus argued for refund, completion of project appears nowhere near the possibility, with heavy interest.
11. Having bestowed my anxious consideration to the facts of the case, I am of the considered opinion that the complaint deserves to be allowed and having arrived at this conclusion the point for determination is the relief the complainant can be granted in the facts and circumstances. The complainant has to be compensated, he having suffered the mental agony and physical harassment. The Hon’ble Apex Court in the matter of Ghaziabad Development Authority versus Balbir Singh as reported in (2004) 5 SCC 65 is pleased to hold that there can be no fixed formula for the purpose. It would depend on the facts of each case.
12. The NCDRC in yet another case, namely, Emaar MGF Land Pvt. Ltd. another versus Krishan Chander, RP 873/13, decided on 29.09.2014, is pleased to hold as under:

 

“The act of the builder in not handing over the possession of the plot even after collecting the total charges and executing the agreement amounts to deceptive practices, leading to unfair trade practices.”

 

13. The Hon’ble NCDRC in the matter of Merlin Projects Ltd. and Anr versus Pandav Roy and another, FA-128/09, decided on 23.05.2014, is pleased to hold as under:

 

“Appellant to pay to the respondent a sum of Rs. 50 lakh for non-delivery of the possession of the immovable property.”

 

14. The Hon’ble Apex Court in the matter of DDA versus Krishan Lal Nondrayog as reported in IV [2010] CPJ 7 (SC) is pleased to hold as under:

                          

“NCDRC directed the appellant to pay interest @ 18% on account of delay caused in delivery….. The Hon’ble Apex Court affirmed the order but reduced the rate of interest @ 5%, observing that award of interest @ 15% is not interest in substance but it is to compensate the respondents by way of damages for loss in terms of money, mental agony and harassment caused…..

 

15. In yet another case, in the case of HUDA versus Sushila Devi Sharma reported in IV[2011] CPJ 3 (SC) the Hon’ble Apex Court ruled that orders of NCDRC holding that the HUDA not having offered the possession have been deficient, does not call  for any interference and the SLP was dismissed.
16.  The ld. Counsel for the complainant has drawn my attention to the judgment of the Hon’ble Apex Court in the matter of Lata Construction and ors. Versus Dr. Rameshchandra Remniklal Shah, AIR 2000 SC 380, upholding the judgment of the NCDRC directing the respondents to refund the amount together with 18% interest and cost.
17. In view of the discussion done, and on consideration of the facts and circumstances, we direct the OPs to refund the principal amount paid by the complainant, delivery of the possession of the flat since not done within the agreed time, with simple interest @ 10% p.a. from the date of receipt of the amount till its realisation. These direction may be carried out within a period of three months from the date of receipt of the certified copy of this order.
18. Ordered accordingly. A copy of this order be forwarded both to the parties to the case free of cost as statutorily required. File be consigned to record.

 

 

                                                                                                              (ANIL SRIVASTAVA) 

                                                                                                              MEMBER (GENERAL)                                                                                                                                

             

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