Delhi

StateCommission

CC/12/166

MR. SHYAM GUPTA - Complainant(s)

Versus

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

11 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 11.09.2018

                                                                                                              

                                                                   Date of decision:14.09.2018

 

 

Complaint No. 166/2012

 

IN THE MATTER OF:

 

Mr. Shyam Gupta ,

S/o Late Sh. Munni Lal Gupta

R/o B-42, Ground Floor, Mayfield Garden

Sector-50, Gurgaon, Haryana-122001                              ….Complainant

 

VERSUS

 

M/s Unitech Limited

6, Community Centre,

Saket, New Delhi-110017

 

The Managing Director

M/s Unitech Limited

6, Community Centre,

Saket, New Delhi-110017                                              ….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. Vikas Tomar, Counsel for the complainant

                   Sh. Ankur Setia, Counsel for the OPs

                  

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           This complaint has been filed by Sh. Shyam Gupta, resident of Gurgaon, Haryana, for short complainant, under Section 17 of the Consumer Protection Act 1986 (the Act) against the M/s Unitech Ltd., hereinafter referred to as OPs, alleging deficiency of service and unfair trade practice on the part of the Op in not refunding the amount deposited for the purchase of a flat.
2.           Facts of the case necessary of the complaint are these.
3.           The complainant lured by the advertisements of the OPs about their new residential upcoming project in the complex known as “UNITECH HABITAT” at Greater Noida, District Gautam Budh Nagar, U.P. and also swayed by their assurance that they have obtained necessary permission from the authorities for constructing the flats, had booked a flat, paying the booking amount Rs. 5,27,650/- in the hope that he would get possession of the flat within the time as assured. The total sale consideration was Rs. 56,63,510/- plus Rs. 3,25,260/- as miscellaneous charges. Possession of the flat was agreed to be handed over within 36 months from the date of booking.
4.           On receipt of the booking amount the complainant was allotted, in terms of the allotment letter dated 13.10.2006, an apartment of approximately 1730 sq. ft. bearing number 203, 2^nd floor, in Unitech Habitat project to be developed on plot no: 9, Sector Pi-II (ALISTONIA ESTATE) Greater Noida, Gautam Budh Nagar, U.P.  Payment schedule has been indicated at Annexure ‘A’ to the allotment letter. In pursuance to the said allotment letter the complainant had paid till may 2007 a sum of Rs 30,45,260/-.
5.           So far so good.
6.           The complainant thereafter owing to his financial conditions requested for the cancellation of the allotment and refund of the amount as admissible. Besides even OPs by then had not commenced the construction work which means they were in breach of the contract. The complainant while making the request for refund had drawn the attention of the OPs to the terms and conditions which says that if the complainant does not pay any instalment, the flat may be cancelled and the amount after deducting earnest money be refunded but the OPs did not cancel the booking nor refunded the balance amount, which act amounts to unfair trade practice. Besides the OPs have not completed the construction though the agreed period had elapsed.
7.           The complainant not having got the refund of the amount as prayed for has filed this complaint praying for the refund of the amount as also interest as per the details indicated in para 17 of the complaint. OPs were noticed and in response thereto the OPs have filed their written statements resisting the complaint on various grounds dealt with hereinafter.
8.           The first objection of the OPs is that the complainant is not a consumer but for this purpose no cogent or substantial evidence having been led we overrule the objection. Their second objection is that this Commission, keeping in view the terms and conditions of the allotment letter which posits that the project being at Greater Noida the Court at Gautam Budh Nagar alone will have the jurisdiction, lacks the territorial jurisdiction but, relying on the provisions contained under Section 17(1) of the Consumer Protection Act 1986, which says that the territorial jurisdiction would be determined from the place the OPs resides or works or where the cause of action arose, the objection being unsustainable since the Head office of the OPs is in New Delhi, the said objection is overruled. The third objection regarding seeking relief beyond the agreed terms and conditions does not appeal to us since the complainant is seeking relief of refund for reasons, among others, that the OPs have not been able to complete the construction within the agreed period. Fourth objection to the effect that there exists no cause of action is outrightly rejected as the complainant having deposited almost 50% of the total sale consideration has sufficient cause of action in the subject matter. The complainant having paid the money and OPs having accepted without delivering the possession gives cause of action. Cause of action gives occasion for and forms the foundation of suit as per the law laid down by the Hon’ble NCDRC in the matter of Santa Banta Company Ltd. versus Parsche Cares reported in I [2014] CPJ 516 (NC). Fifth, their objection that the matter having regard to the agreement is to be referred to an Arbitrator is unsustainable relying on the orders/judgment of the Hon’ble NCDRC in the matter of 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 complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made in Section 8 of the Arbitration Act and consequently we unhesitatingly reject the argument.
9.           Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted. The objections raised by the OPs regarding maintainability of the complaint or on merit, in complete ignorance of the statutorily provisions and the settled legal positions, are stated to be outrightly rejected sequentially. Having arrived at the said conclusion, the core question for consideration is as to how the complainant are to be compensated for mental and physical harassment they have suffered at the hands of the OP on account of non-delivery of the allotted unit.
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. 
11. Having noticed the board principles, to be kept in view while determining the compensation we may advert to the facts at hand. The complainants have deposited the amount with the OP is an undisputed fact. OPs have not been delivered the possession of the unit within the agreed time is also not disputed.
12. In this view of the matter we direct the OPs to refund the principal amount with simple interest at the rate of 10% from the date of deposit till realisation. This be done within two months from the date of receipt of certified copy of this order failing which the complainants would be free to file execution petition under Section 25 & 27 of the Consumer Protection Act 1986.
13. Ordered accordingly.
14. 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)