Delhi

StateCommission

CC/439/2016

SANJAY TYAGI - Complainant(s)

Versus

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

SANJAY

22 Oct 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 22.10.2018

                                                                                                              

                                                                   Date of decision:26.10.2018

 

 

Complaint No. 439/2016

 

 

IN THE MATTER OF:

 

Sh. Sanjay Tyagi,

S/o. Sh. B.R. Tyagi,

R/o WZ-122, Village Budella,

Vikaspuri, New Delhi-110018                                        ….Complainant                       

VERSUS

 

M/s Unitech Limited,

Through its Managing Director/

Director/Auth. Representative

Having its regd. Office at:

6, Basement, Community Centre,

•  

New Delhi-110017

 

Also at:

Unitech Ltd.

UGCC Pavillion,

Sector-96, Express Way, Noida,

U.P. 2013055,

Through its Managing Director/

Director/Auth. Representative                                  ….Opposite Parties

 

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:       Sh. Surender Kumar Tyagi, Counsel for the Complainant

                   None for the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint has been filed before this Commission by Sh. Sanjay Tyagi, resident of New Delhi, for short complainant, under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s Unitech Ltd. hereinafter referred to as OPs alleging deficiency on the part of the OP, possession of the flat not having been handed over within the agreed time despite the payment as per the requirement having been made, and praying for the relief as under:

 

1. Direct the respondent and its Directors to refund the entire payment of RS. 15,21,704/- to the complainant along with interest @ 18% p.a. from the date of its payment till realization, in the interest of justice.
2. Direct the respondent and its directors etc. to pay damages of Rs. 10,00,000/- with interest @ from the date of notice till its payment to the complainant towards the mental pain, agony and harassment etc. suffered by the complainant at the hands of the respondent and its directors for the deficiency of service and mal-practice, breach of contract/agreement etc.
3. Award cost of the present litigation to the tune of Rs. 1,00,000/- in favour of the complainant and against the respondent.
4. Pass any other order or further reliefs as this Hon’ble Court may deem fit and proper in favour of the complainants and against the respondent/OP.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant responding to the publication of an advertisement inserted by the OPs in various newspaper inviting applications for booking of flats in their upcoming project namely, Unitech Unihomes-3, at Sector 113, NOIDA, U.P., booked a flat paying the earnest amount in the said project on 20.09.2012, the total sale consideration of which was Rs. 32,88,012/-. It was agreed that the possession would be handed over on a before 04.01.2016.
4.           The relevant clause regarding handing over possession of the flat as contained in the terms and condition is as indicated below:

 

Possession

The possession of Apartment is expected to be offered by the Developer within 36 months hereof subject to Force Majeure circumstances (as mentioned herein) or the circumstances beyond the control of the Developer and upon registration of Sub Lease DEED provided that all amounts due and payable by the Allottee(s) have been paid to the Developer. It is, however understood between the parties that various Blocks/Towers/amenities/structures comprised in the complex/Township shall be ready and completed in phases.

 

5.           The OPs had thereafter issued the provisional allotment letter on 03.10.2012 in favour of the complainant, allotting a flat bearing number 0808 on floor no:8 in Tower C-2, admeasuring, Super area of 83.52 sq. mtr. (899 sq.ft.) in the complex “UNIHOMES 3” Complex. The complainant made the payment as demanded by the OPs from time to time, making his own arrangement as loan by the Bank was not approved though the Ops had assured that, that would be done.
6.           The complainant thereafter in January 2016 visited the project site to see the progress made but was shocked to see only initial minor work. Completion of the project though assured to be done by January 2016 was nowhere near possibility. Accordingly the complainant sought for the refund of the amount but the OPs did not accede to the request. Legal notice issued in this behalf could evoke no response. Under these circumstances this complaint , alleging that the OPs have indulged in the unfair trade practice by utilizing the amount deposited by the complainant for his self gain and have been grossly deficient to the discharge of their duty in terms of the agreement has been filed for the redressal of the grievances.
7.           OPs were noticed and they having been served with the notices but having not filed the written statement within the time statutorily allowed for the purpose, their right to do so stood closed vide proceedings recorded on 27.09.2017. The complainant has filed his evidence as also written arguments reiterating the averments made in the complaint. This matter was listed before us for final hearing on 22.10.2018 when the counsel for both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
8.           In the first instance the ld. Counsel for the complainant argued that the agreed period of time for handing over possession having elapsed he is no longer interested in the possession and pressed for refund of the amount alongwith interest as this commission may order.
9.           The fact that the complainant had booked a flat with the OPs is undisputed. Payment to the extent of requirement has been made, is also not in dispute. Agreed period for handing over possession also stands over. But the possession is no where near possibility.
10. 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 the OPs in its failure to deliver possession of the flat to the complainant in terms of the allotment letter. It is trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency of service, such deficiencies or omissions as per the law settled by their Lordships in the Apex Court in the matter of Lucknow Development Authority versus M.K. Gupta as reported in (1994) 1 SCC 243 tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act as well.
11. Further the complainant, as argued, cannot be expected to wait indefinitely for the possession. 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.

 

12. 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.

         

          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 Parasavnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

               

13. Having arrived at the said conclusion we are of the considered opinion that the complaint deserves to be accepted. The core question for consideration now is as to how the complainants are to be compensated for the suffering caused to the complainant at the hands of the OPs for indulging in the unfair trade practice. The provisions of the Act enable a consumer to claim and empower the commission to redress any injustice done to a consumer. The commission is entitled to award compensation for the injustice suffered by him.
14. The Hon’ble NCDRC in the matter of Anil Raj and ors versus Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016 as reported in MANU/CF/0105/2016 is pleased to observe as under:

 

“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 OPs”.

 

15. In Ghaziabad Development Authority v. 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 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.
16. Keeping in view the facts and circumstances of the case and the legal position discussed above, we are of the considered view that possession of the flat not having been handed over within the agreed time, the ends of justice would be met if a direction is issued to the OPs to refund the principal amount, with simple interest at the rate of 10%. This payment be done by the OPs within a period of two months from the date of receipt of this order, failing which the complainant would be at liberty to move this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
17. Ordered accordingly.
18. 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)                                                                                            (O.P.GUPTA)

              MEMBER                                                                                       MEMBER (JUDICIAL)