Delhi

StateCommission

CC/2/2014

MADHU SEHGAL - Complainant(s)

Versus

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

19 Nov 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 19.11.2018

                                                                                                              

                                                                   Date of decision: 07.12.2018

 

 

1. Complaint No. 01/2014

         

IN THE MATTER OF:

 

Mr. Hiramant Dhyani

A-7, Indian Oil Nagar,

Site-1, Sector-55

Noida (U.P.)- 201301                                                            ….Complainant                          

VERSUS

 

M/s Unitech and ors.

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                                 

 

Sh. Ramesh Chandra,

Executive Chairman

United Limited

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

Sh. Sanjay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

 

Ajay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                             ..... Opposite Party

 

 

2. Complaint No. 02/2014

 

IN THE MATTER OF:

 

Mrs. Madhu Sehgal and Mr. Rajiv Sehgal

Flat no. 608, B-9/10,

Prangan Apartments,

Sector-62,

Noida, (U.P.)                                                                        ….Complainant

 

VERSUS

 

M/s Unitech and ors

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                                 

 

Sh. Ramesh Chandra,

Executive Chairman

United Limited

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

Sh. Sanjay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

 

Ajay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                              ..... Opposite Party

 

3. Complaint No. 130/2014

 

IN THE MATTER OF:

 

Mr. Ajay Kumar Sharma,

Flat no. B-186, Rail Nagar, Sector-50

Noida (U.P.)-201307                                                           ….Complainant

 

VERSUS

 

M/s Unitech and ors

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                                 

 

Sh. Ramesh Chandra,

Executive Chairman

United Limited

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

Sh. Sanjay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

 

Ajay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                              ..... Opposite Party

 

4. Complaint No. 56/2014

 

IN THE MATTER OF:

 

Mr. Bhabesh Chandra Kar and Mrs. Babita Kar.

448, Niti Khand-3

Indirapuram Ghaziabad

(U.P.) - 201010                                                                  ….Complainant

 

VERSUS

 

M/s Unitech and ors

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                                 

 

Sh. Ramesh Chandra,

Executive Chairman

United Limited

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

Sh. Sanjay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017

 

 

Ajay Chandra,

Managing Director,

United Limited,

Registered office at:

6, Community Centre,

Saket, New Delhi-110017                                            ..... Opposite Party

 

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:       S. No. 1 to 3

Sh. Satyam Singh, Counsel for the Complainant

                   None for the OP

 

Present:       S. No. 4

Complainant-1 person alongwith Sh. Satyam Singh. Adv.  

None for the OP

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           These four complaints, all against Unitech Ltd. and ors, are grouped in two folds, first fold comprising of the complainants at serial number 1,3 and 4 and the second comprising of the complainant at serial number 2, grouping done based on the fact where the possession of the flat has been handed over by the OPs during the pendency of the complaint in which case the claim of the complainants are restricted to the payment of compensation for the delayed period and, secondly, where possession has not been delivered, in which case the demand is for both, possession of the flat and compensation for the delayed period. However since the facts of the cases are identical and the law points involved being identical, these four complaints are disposed of by a common order.

 

COMPLAINTS FALLINGS IN THE FIRST GROUP, C-01/14, C-130/14 AND C-56/14

 

2.           Facts of the case number C-01/14 are taken as the lead case for the disposal of three complaints falling in the first group.
3.           Sh. Hiramani Dhyani resident of Noida U.P. for short complainant paying the registration amount of Rs. 3,24,225/- had booked a flat with the M/s Unitech Ltd., hereinafter referred to as OPs, in their upcoming project, namely, UNIHOMES for a total consideration of Rs. 35,25,900/-, and in response thereto the OPs had allotted him provisionally on 17.03.2011 a flat bearing number 0201, 2^nd floor, Tower C-2A, having a super area of 91.97 sq. mtrs (approximately 990 sq. ft). The complainant had thereafter paid to the OPs 90% of the cost of the flat as per the demand raised from time to time. The possession of the flat was agreed to be handed over within 24 months from the date of execution of the agreement which means the execution having been done on 04.04.2011, the possession was to be handed over on or before 03.04.2013. The relevant clause of the agreement regarding handing over the possession is as under:

 

POSSESSION OF APARTMENT

Possession

The possession of apartment is expected to be delivered by the Developer within 24 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.

In the event of any default or negligence attributable to the allottee(s) in fulfillment 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.

 

4.           But the possession was not delivered despite many attempts having been made by the complainants. In these circumstances this complaint has been filed before this Commission for the redressal of the grievances praying for the relief as under:

 

1. To hand over the possession of the aforesaid apartments complete in all respects to the complainants immediately and execute all the necessary and required documents in respect of the said apartments in favour of the complainants.
2. Direct the OPs/respondents severally and jointly to pay interest @ 18% per annum compounded quarterly on amount deposited by the complainants with the OPs from the respective date of payments made by the complainant till the actual date of handover of possession of the apartment complete in all respects by the OPs to the complainants.
3. Direct to the OPs/respondents severally and jointly to pay a sum of Rs. 5,00,000/- to the complainant towards damages for the physical and mental torture, agony, discomfort and undue hardship caused to the complainants and the complainants family as a result of the above acts of omission on the part of the OPs.
4. Direct the OPs severally and jointly to pay a sum of Rs. 75,000/- to the complainants towards the cost of litigation and
5. Any other order(s) as may be deemed fit and appropriate may also kindly be passed.

 

5.           OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground and on merit. Their objections on technical ground are two folded, namely, the complaint is liable to be dismissed owing to misjoinder of parties inasmuch Director of the Company have been impleaded though as per the settled law they are only agents of the company. This objection cannot be stretched beyond a point since the relief claimed by the complainant is only against the company.
6.           Secondly, there objection on technical ground is that the complainant is not a consumer. However no substance has been placed before us in support of this contention and therefore no cognizance can be taken on the objection so raised.
7.           The objection of the OP on merit is that as per agreement between them, in the event of dispute between the parties, the matter is to be referred to an Arbitrator. This objection, relying on the judgment of the Hon’ble NCDRC in the matter Aftab Singh and ors versus Emaar MGF Land Ltd., and Anr as reported in III [2017] CPJ 270 (NC) holding that an Arbitration clause in the agreement between the complainants and the Builder cannot circumstances the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, is overruled.
8.           Their next objection on the ground of territorial jurisdiction of this commission is outrightly rejected relying on the provisions of Section 17 of the Act laying down that the territorial jurisdiction would be where the Head Office of the OP is situated which in given case happens to be New Delhi.
9.           The OPs objection that there exists no cause of action is also rejected since possession on the date of filing this complaint was not delivered. Cause of action as per the judgment of the Hon’ble NCDRC in the matter of Santa Banta Com. Ltd. versus Parche Cars as reported in I [2014] CPJ 516 (NC), gives occasion for and forms the foundation of suit.
10. The OPs in their defence have submitted that the delay in construction of the project is attributable to the recession in the real estate industry and secondly several writ petitions were filed and pending disposal before various High Courts leading to the delay. This objection is unsustainable as it belies our conviction that a developer like Unitech, a builder of great reputation, was unable to complete the construction relying on factors which may not be necessarily the ground for it.
11. The parties have also filed their evidence reiterating their averments contained in their pleadings. Both the parties have filed their written arguments.
12. During the pendency of the case the OPs had offered the possession which possession the complainant had accepted reserving his right to press for the compensation for the delay done in the process.
13. These complaints were listed before us for final hearing on 19.11.2018 when the ld. Counsel for the complainant appeared and advanced his argument based on the pleadings. None appeared on behalf of the OPs.
14. 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 stood over. But the possession was handed over only after the expiry of the agreed period.
15.  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 within the agreed time. 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.
16. 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.
17. 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”.

 

18. 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.
19. The ld. Counsel for the complainant relying on the judgment of the Hon’ble NCDRC in the matter of Sh. Satish Kumar Pandey and Anr versus Unitech Ltd. [CC-427/2014] claims for compensation at the rate of 12%. He also presses for litigation cost.
20. Keeping in view the facts and circumstances of the case and the legal position discussed above, particularly the point that awarding of compensation or the interest for the delayed period is left to the discretion of the court, deliberating upon the issue, possession of the flat having been delayed for no good or sustainable ground, we are of the considered view that the ends of justice would be met if a direction is issued to the OPs to pay to the complainant compensation in the form of simple interest at the rate of 7%, 6% as compensation and 1% for litigation cost and other miscellaneous items for the period from the date of the possession was to be handed over till the time the possession was delivered.
21. Ordered accordingly. Other two complaints, bearing numbers C-130/2014 and C-56/2014, filed by Sh. Ajay Kumar Sharma and by Sh. Bhabesh Chandra Kar. respectively they having got the possession of the flat though after the agreed period was elapsed, are also disposed of on the lines in which the complaint filed by Sh. Hiramani Dhyani is ordered, awarding of simple interest at the rate of 7% compensation, which would comprise of 6% as compensation, 1% for litigation cost and other miscellaneous factors.

 

COMPLAINT FALLING IN THE SECOND GROUP, C-02/14, SMT MADHU SEHGAL AND SH. RAJIV SEHGAL

 

22.  Facts of this complaint are identical to three complaints ordered in the preceding paragraph except that the possession of the flat in this case has not been handed over. On careful consideration of the facts and circumstances we dispose of this complaint with a direction to the OPs to hand over the possession of the flat booked by the complainants as has been done in respect of three complainants in the first group, subject to their meeting all other requirements. In addition to the possession of the flat the OPs are also directed to pay to the complainant compensation in the form of simple interest at the rate of 7%, 6% as compensation and 1% for litigation cost and other miscellaneous items, for the period from the date the possession was due to be delivered till the delivery of the possession. On the lines in which the complainants in other complaints have been ordered.
23. Ordered accordingly.
24. The OPs are directed to comply with these directions contained in this order with respect to all four complaints within two months from the date of receipt of copy of this order, failing which the complainants would be free to move this Commission for execution of this order under Section 25 and 27 of the Consumer Protection Act 1986.
25. A copy of the order be forwarded to the parties to the case in all four complaints free of cost as statutorily required.
26. Registrar of this Commission is requested to place a certified copy of this order in each of the files for record.
27. Files be consigned to record.

 

 

 

(ANIL SRIVASTAVA)                                                                                            (O.P.GUPTA)

              MEMBER                                                                                       MEMBER (JUDICIAL)