Delhi

StateCommission

CC/33/2016

SH. MOHIT LUTHRA - Complainant(s)

Versus

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

PAWAN KUMAR AGGARWAL

12 Oct 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 12.10.2018

                                                                                                              

                                                                   Date of decision:23.10.2018

 

 

Complaint No. 33/2016

 

 

IN THE MATTER OF:

 

Sh. Mohit Luthra,

S/o. Late Sh. Sudhir Kumar Luthra,

R/o C-148, Manu Apartments,

Plot No.6, Mayur Vihar, Phase-I,

Delhi-110091                                                                 ….Complainant                       

VERSUS

 

M/s Unitech Limited,

Regd. Off:-

6, Community Centre,

Saket, New Delhi-110017                                         ….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. Pawan Kumar Agarwal, Counsel for the Complainant

                   Sh. Varun Katyal, Counsel of the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.                 Non delivery of the possession of the flat by the M/s Unitech Limited booked by Sh. Mohit Luthra, resident of Delhi, in their proposed project at Sector 113, NOIDA, U.P. under the caption “UNIHOMES 3’, is the root cause of this complaint filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act. Sh. Mohit Luthra and M/s Unitech would hereinafter be referred to as complainant and OPs respectively.
2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           A Group Housing Complex was developed by the OPs. The complainant was one of the Members of the Society, and booked a flat on 21.12.2011 with the OPs, the cost of which was around Rs. 30 Lakhs. The flat so booked was under the subvention plan, according to which, 10% of the amount was paid by the complainant, 85% of the amount was to be paid by the Bank or a financial institution, which in the given case was PNB HFL and remaining 5% was to be paid by the complainant at the time of handing over of the possession of the flat. Possession was agreed to be handed over in thirty months from the date of the allotment letter, i.e., 30.12.2011. The Bank, PNB HFL, paid an amount of Rs. 24,50,000/- to the OP for the purpose on 18.01.2012. The complainant had paid 10% of the amount, as per the agreement. On receipt of the amount from the complainant the OPs had issued the allotment letter, allotting the complainant an apartment no:0108, floor 01, Block A2, having a super area of 900 sq. ft. (Approx) in the Group Housing Complex ‘UNIHOMES 3’ in Sector 113, NOIDA, U.P.
4.           Relevant clause regarding possession of the flat is as under:

 

1. The possession of Apartment is expected to be offered by the Developer within 30 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.
2. In the event of any default or negligence attributable to the Allottee(s) in fulfilment of terms and conditions contained herein, without prejudice to the other rights of the Developer as mentioned herein, the Developer shall be entitled to extension in the delivery time of possession of the apartment as stipulated in 5A (i) above.

 

5.           On 13.01.2012 the Memorandum of understanding was also executed among the complainant, OPs and PNB HFL agreeing for the payment plan for the purpose under the subvention scheme as detailed in the preceding paragraph.
6.           But the possession of the flat has not been handed over despite the agreed time having been elapsed and despite the payment as agreed to having been made. In the meanwhile the rates for service tax have been increased. But the delay being attributable to the OPs, the increase of the amount in such circumstances has to be borne by the OPs.
7.           In this view of the matter this complaint has been filed for the redressal of his grievances alleging deficiency of service owing to regarding non delivery of the possession of the flat and praying for the relief as under:

 

1. To complete the construction and hand over the possession of the flat no.0108 in Block No. A2 at Unitech Unihomes-3, Sector 113, Noida, admeasuring an area of 83.52 sq. ft. Mtr. (i.e. 899 sq. ft.), to the complainant at the earliest and, in any case, by a specified date as this Hon’ble Commission my consider reasonable, just and proper in the totality of the facts circumstances of the case;
2. To pay to the complainant as compensation interest @ 18% per annum, compounded quarterly, on the amount of Rs. 29,19,675/- (Rupees Twenty Nine Lac Nineteen Thousand Six Hundred and Seventy five only), already paid by him to the OP against the amount of agreed consideration, with effect from 09.07.2014, i.e. from the date after the expiry of stipulated period of 30 (thirty) months from the date of issue of Alottment Letter/Agreement, dated 09.01.2012, till the date of filing of this Consumer Complaint (i.e. 08.01.2016), amounting to Rs. 7,88,312/- (Rupees Seven Lac Eighty Eight Thousand Three Hundred and Twelve Only);
3. To pay to the complainant as compensation interest, pendent lite and future till the date of handing over the actual physical possession of the said flat, @ 18% per annum, amounting to Rs. 43,795/- (Rupees Forty Nine Lac Nineteen Thousand Six Hundred and Seventy Five only). Already paid by him to the OP against the amount of agreed consideration;
4. To pay to the complainant damages in the sum of Rs. 5,00,000/- (Rupees Five Lac only) for causing avoidable harassment, mental agony, torture and inconvenience to the complainant for their negligence/failure/refusal to timely complete construction and deliver the possession of the said flat to him;
5. To bear/pay to the complainant increase in Service Tax effected with effect from 01.06.2015 and “Swatch Bharat” Tax being brought into effect now:
6. To pay to the complainant costs/litigation expenses.

Any other or further order(s)/direction(s) that this Hon’ble commission may consider to be reasonable, just and proper in the facts and circumstances of the case be also granted in favour of the complainant and against the OP to meet the ends of justice.

 

8.                 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.
9.           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.
10. The fact that the complainant had booked a flat with the OPs is undisputed. Payment to the extent of 95% of the total sale consideration, 10% by the complainant and 85% by the Bank procured for and on behalf of the complainant, 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.
11. 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.
12. 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.

 

13. 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).

               

14. 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.
15. 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”.

 

16. 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.
17. 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, 10% deposited by the complainant and 85% by the Financial Institution, 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.
18. Ordered accordingly. 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)