Delhi

StateCommission

CC/613/2016

MRS. NITIKA AJEET ARENJA - Complainant(s)

Versus

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

PRADEEP MAHAJAN

20 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 20.08.2018

                                                                                                              

                                                                   Date of decision:23.08.2018

 

 

Complaint No. 613/2016

 

 

IN THE MATTER OF:

 

Mrs. Nitika Ajeet Arenja

W/o Mr. Ajeet Lekhraj Arenja

R/o 13A Balmoral Hall Mount Mary Road

Bandra

West Mumbai 400050                                                        ….Complainants                                                       

VERSUS

 

M/s Unitech Ltd.

Through its Managing Director/Authorised

•  

6, Community Centre,

•  

New Delhi-17

 

Also At:

UGCC Pavilion

Sector-96, Express Way Noida-201305….Opposite Parties

 

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

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER (GENERAL)

 

 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. Sdhir Mahajan, Counsel for the Complainant

                   Sh. Ankur Sethia, Counsel for the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           This complaint has been filed by Smt. Nitika Ajeet Arenja, resident of Mumbai, for short complainant, before this Commission under Section 17 of the Consumer Protection Act 1986(the Act) against Unitech Ltd. through its Managing Director, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs in not having delivered the possession despite agreed time having been elapsed, and praying for the relief as under:

 

1. To direct the OP to refund the amount paid by the complainant together with 18% p.a. interest on the amounts paid by the complainant from the date of respective payment as OP had failed to timely deliver the flat/ apartment booked.
2. To direct OP to pay appropriate compensation on account of mental agony and harassment suffered by complainant at the hands of the OP.
3. Cost of the complaint.

 

2.           Facts of the case necessary for the complaint are these.
3.           One Sh. Anuj Arenja s/o Mr. Ajeet Lekhraj Arenja r/o 7, Brabourne Stadium, Veer Nariman Road, Church Gate Mumbai booked a residential flat/ Apartment admeasuring 2096 sq. ft. bearing address unit no. 1104, Floor No. 11, Block HBTN- Tower 04 with car parking in OP’s Project Habitat at Greater Noida with OP on 16.06.2006 for a total consideration of Rs. 64,50,328/- in Down Payment Plan and as a consequence thereof allotment letter dated 24.08.2006 was issued indicating the Payment Plan and Payment Receipts. Possession of the flat as per the allotment letter was to be handed over within 36 months. The relevant clause of the allotment letter regarding possession of the flat is indicated below:

 

•  

That the possession of Apartment is proposed is proposed to be delivered by the Developer to the Allottee(s) within 36 months of signing hereof subject to Force Majeure circumstances beyond the control of the Developer, and upon registration of Sub Lease Deed provided all amounts due and payable by the Allottee(s) as provided herein have been paid to the Develop. It is, however, understood between the parties that various Towers comprised in the Complex shall be ready and completed in phases and handed over, accordingly.

The developer shall be entitled to reasonable extension in delivery of the possession of Apartment in the event of any default or negligence attributable to the Allottee(s)’s fulfilment of Terms and Conditions contained herein.

 

4.           Following due process, the flat in question was transferred/ endorsed in the name of the complainant. Payment of Rs. 60,56,032/- made by Sh. Anuj Arenja as consequence thereof was transferred into the ledger account of the complainant for further action in future.
5.           The OPs however did not hand over the physical possession of the flat to the complainant despite agreed period of time having elapsed and despite payment as per the schedule having been made. Infact the allegation is that the OPs are yet to complete the project. The complainant has alleged that the OPs having received the money have invested it elsewhere causing hardship to them and this act of the OP amounts to unfair trade practice. They have certainly been deficient in rendering service to her.  The OPs being deficient are liable to compensate.
6.           Having regard to these facts the complainant has pressed for the refund of the amount. OPs were noticed but they not having filed the written statement within the time permissible under the statute, their right to file it closed vide proceedings recorded on 11.05.2017. The complainant has later filed the evidence by way of affidavit as also the written submission reiterating the averments contained in the complaint. The matter was listed before us for final hearing on 20.08.2018 when counsel from both sides appeared and advanced their arguments. We have perused the records of the case and given careful consideration to the subject matter.
7.           The ld. Counsel for the complainant at the very outset argued and pressed for the refund of the amount deposited with the OPs the complainant finding OPs deficient is no longer interested in the possession of the flat.
8.           Having bestowed our consideration to the facts at hand, we are of the opinion that the complaint deserves to be accepted, the possession of the plot not having been delivered within the timeframe despite the payment having been made as per the demand of the OP.  In these circumstances we reach to an inevitable conclusion that there was gross deficiency, as defined in Section 2(1) (g). It is a trite law that where possession of the property is not delivered within the stipulated period the delay so caused is not only deficiency in rendering service, such deficiencies or omission tantamount to unfair trade practice as defined in the Act as well. For reference Lucknow Development Authority versus M.K. Gupta-(1994) 1 SCC 243.
9.           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 they have suffered at the hands of OPs on account of non-delivery of the plot.
10. 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 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.
11. In view of the discussion done we direct the OPs to refund the principal amount paid by the complainant delivery of the possession of the plot since not a possibility, with simple interest @ 9 % p.a. from the date of receipt of the amount till its realisation. This be done within a period of two months filing which the complainant would be free to more this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
12. Ordered accordingly. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. File be consigned to record.

 

(ANIL SRIVASTAVA)                                                        (O.P.GUPTA)

       MEMBER (GENERAL)                                   MEMBER (JUDICIAL)

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