JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) CC/1423/2017 The complainant namely Vivek Shrivastava booked a residential apartment with the OP in a project namely ‘Unitech Horizon’ which the OP was to develop in Greater Noida. Vide allotment letter dated 12.05.2006, apartment no.0702 in Tower 22 of the aforesaid project was allotted to the complainant for a consideration of Rs.44,56,006/- (Customer Code No. UZ 1010). In terms of clause 4(a)(i) of the terms and conditions of the allotment, the possession of the apartment was to be delivered by 15.11.2008. The possession having not been delivered, despite the complainant having paid a sum of Rs.42,67,876/- to the OP, he is before this Commission, seeking refund of the aforesaid amount with compensation etc. CC/1424/2017 The complainant namely Abhishek Roy also booked a residential apartment with the OP in the above referred project of the OP and vide allotment letter dated 09.05.2006, apartment no.1402 in Tower 21 of the aforesaid project was allotted to the complainant for a consideration of Rs.43,77,893/- (Customer Code No. UZ 0997). In terms of clause 4(a)(i) of the terms and conditions of the allotment, the possession of the apartment was to be delivered by 15.11.2008. The possession having not been delivered despite the complainant having paid a sum of Rs.41,87,652/- to the OP, he is before this Commission, seeking refund of the aforesaid amount with compensation etc. CC/1425/2017 The complainant namely Amit Kumar also booked a residential apartment with the OP in the above referred project of the OP and vide allotment letter dated 09.05.2006, apartment no.1502 in Tower 21 of the foresaid project was allotted to him (Customer Code No. UZ 0990). In his case also, the possession was to be delivered to him by 15.11.2008. His grievance is that despite he having paid a sum of Rs.43,42,821/- to the OP, the possession has not been offered to him. He is also seeking refund of the aforesaid amount paid by him, with compensation etc. CC/1426/2017 The complainants namely Rakesh Kumar and Sushma Himanshu also booked a residential apartment with the OP in the above referred project of the OP and vide allotment letter dated 22.05.2006, apartment no.1103 in Tower 21 of the aforesaid project was allotted to them (Customer Code No. UZ 1079). In their case also, the possession of the apartment was to be delivered by 15.11.2008 and they are also seeking refund of the amount of Rs.49,44,263/- paid by them, with compensation etc. CC/1441/2017 The complainant namely Manish Shukla also booked a residential apartment with the OP in the above referred project of the OP and vide allotment letter dated 08.05.2006, apartment no.0102 in Tower 23 in the aforesaid project was allotted to him (Customer Code No. UZ 0952). The possession of the aforesaid apartment was to be delivered by 15.11.2008 as stipulated in clause 4(a)(i) of the terms and conditions of the allotment. The possession having not been delivered despite the complainant having paid a sum of Rs.42,93,404/- to the OP, he is before this Commission, seeking refund of the aforesaid amount with compensation etc. 2. The OP did not file its written version in any of the aforesaid complaints and therefore, its right to file the said written version was closed vide order dated 19.02.2018. 3. I have heard the learned counsel for the parties and have considered the affidavits filed by the complainants by way of evidence. The affidavits of the complainants coupled with the documents filed by them prove the allotment made to them, the payment made by them to the OP as well as the commitment of the OP to deliver possession of the apartments to them by 15.11.2008. The possession having not been even offered, they are entitled to seek refund of the amount paid by them alongwith appropriate compensation. 4. The learned counsel for the complainants states on instructions from the complainants that the complainants are restricting their claim to the refund of the amount paid by them alongwith compensation in the form of simple interest @ 10% per annum in terms of clause 4.e. of the terms and conditions of the allotment which reads as under: Default “4.e. If for any reason the Company is not in a position to offer the Apartment altogether, the Company shall offer the Allottee(s) an alternative property or refund the amount in full with Simple Interest @ 10% per annum without any further liability to pay damages or any other compensation on this account.” 5. The learned counsel for the complainant also relies upon the decision of this Commission in A.K. Gupta Vs. Unitech Ltd. CC/276/2014 decided on 01.04.2016, a consumer complaint with respect to a flat allotted in this very project, allowed by this Commission after rejecting the grounds on which the said complaint was resisted. The decision of this Commission in A.K. Gupta (supra) to the extent it is relevant, reads as under: 4. The grounds on which the complaint has been resisted have been rejected not only in Swarn Talwar & Ors. (supra), but also in several other matters including CC No. 487/2014, Manoj Kumar Jha & Anr. Vs. M/s. Unitech Ltd., decided on 18.01.2016. Those grounds have also been rejected by another Bench of this Commission in Suman Nandi & Anr. Vs. M/s. Unitech Limited & Anr., decided on 17.12.2015. In CC No. 368/2014, Shweta Kapoor & Anr. Vs. M/s. Unitech Limited & Anr., decided on 14.01.2016, this Commission again rejected identical grounds taken by the opposite party. 7. The contention that since the apartment in question was purchased for less than Rs. 1 crore and therefore, this Commission lacks jurisdiction to entertain this matter has already been rejected by this Commission in Swarn Talwar (supra) and the said order, to the extent, it is relevant reads as under: The learned counsel for the opposite party submits that since the apartment in question was purchased for less than Rs.1 Crore, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainants should be relegated to the concerned State Commission for the redressal of their grievance. We however find no merit in this contention. This issue was raised by the opposite party in Swarn Talwar (Supra) and was rejected. The aforesaid decision to the extent relevant to this plea reads as under:- “5. The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard. 6. In our view, the interest claimed by the flat buyers in such a case does not represent only the interest on the capital borrowed or contributed by them but also includes compensation on account of appreciation in the land value and increase in the cost of construction in the meanwhile. As noted by us in CC No.232 of 2014, Puneet Malhotra Vs. Parsvnath Developers Ltd. decided on 29-01-2015, there has been steep appreciation in the market value of the land and cost of construction of the residential flats in Greater Noida in last about 7-10 years and consequently the complainants cannot hope to get a comparable flat at the same price which the opposite party had agreed to charge from them. In fact it would be difficult to get a similar accommodation, even at the agreed price plus simple interest thereon at the rate of 18% per annum. Therefore, the payment of interest to the flat buyers in such a case is not only on account of loss of income by way of interest but also on account of loss of the opportunity which the complainants had to acquire a residential flat at a particular price. 7. In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court inter alia observed and held as under: “However, the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard and fast rule can be laid down, however a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure... …Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause. That compensation cannot be uniform and can best of illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered 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 returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher. It would, thus, be seen that the Hon’ble Supreme Court recognized that the interest to the flat buyers in such cases is paid by way of compensation. Therefore, there is no reason why the interest claimed by the complainants or at least part of it should not be taken into consideration for the purpose of deciding the pecuniary jurisdiction of this Commission. If this is done, the aggregate amount claimed in each of the complaints exceeds Rs.1,00,00,000/- and, therefore, this Commission does possess the requisite pecuniary jurisdiction. In the cases where the complainant does not want refund and is seeking possession, alongwith compensation for the delayed possession, this Commission would have jurisdiction to entertain the complaint, if the aggregate of the value of the flat, on the date of filing of the complaint and the compensation claimed for the delay in delivering possession, exceeds Rs. 1 Crore. In terms of Section 21(a) of the Consumer Protection Act, this Commission can entertain complaints where the value of the goods or services and compensation exceeds Rs. 1 Crore. Since the buyer is seeking possession of the flat booked by him, the value of the service, in such a case in our opinion, in terms of Section 21(a) of the Consumer Protection Act means the value of the flat as on the date of filing of the complaint and not the value on the date the flats were booked. 6. For the reasons stated hereinabove, the complaints are disposed of with the following directions: In CC No.1423/2017, the OP shall refund the entire principal amount of Rs.42,67,876/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is actually refunded. In CC No.1424/2017, the OP shall refund the entire principal amount of Rs.41,87,652/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is actually refunded. In CC No.1425/2017, the OP shall refund the entire principal amount of Rs.43,42,821/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is actually refunded. In CC No.1426/2017, the OP shall refund the entire principal amount of Rs.49,44,263/- to the complainants alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is actually refunded. In CC No.1441/2017, the OP shall refund the entire principal amount of Rs.42,93,404/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid amount is actually refunded. The opposite party shall pay a sum of Rs.25,000/- as the cost of litigation to the complainants in each case. The payment in terms of this order shall be made within three months from today.
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