JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      M/s Unitech Limited, opposite party No. 1, was in the process of constructing flats in a group housing complex at plot No. 9, Sector Pi II, Greater Noida, Distirct Gautam Budh Nagar, Uttar Pradesh.   Shri Sanjay Arora, the complainant deposited a sum of Rs.6,50,000/- as part of booking/registration amount with the OP 1 for allotment of an apartment.  OP 1 sent a letter/agreement to the complainant on 6.11.2006, according to which, apartment No. 1101, at 11^th Floor, HBTN Tower 6, Unitech Habitat at Plot No. 9 Sector Pi II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, was allotted to the complainant for a total consideration of Rs.67,25,152/-.  The said agreement was executed.  Till 14.8.2007, the complainant paid an amount of Rs.12,98,560/-, copy of the agreement is annexed as ext. P1.  The complainant opted for the Time Linked Instalment Plan ‘B’, payment-schedule of which was enclosed with the agreement.  According to the aforesaid mode of payment, the complainant was to pay the due amount of Rs.71,09,704/- in 12 instalments, out of which the last instalment was to be paid upon the final notice of possession.

2.      At the time of payment of second instalment, it transpired that in certain condition, discount/rebate would be available to the complainant if the entire amount was paid together.  The complainant applied for loan from ICICI Bank.  On 14.08.2007, OP 1 wrote to the complainant that he had to deposit a sum of Rs.51,26,952/- and an amount of Rs.2,14,958/-, which was due for delayed payment, copy of the letter dated 14.08.2007 has been placed on record as ext. P-2.  The complainant obtained loan and paid a sum of Rs.47 lakh through cheque dated 21.8.2007 drawn on ICICI Bank.  The complainant was required to pay the residue amount in the sum of Rs.6,84,192/-.  Copy of the demand draft dated 31.08.2007 in the sum of Rs.47 lakh is annexed as annexure P3.  After the down payment plan, the complainant was to get payment of rebate @ 7%.  However, the OP 1 started claiming interest on the instalment, that fell due.  During the period, the complainant and OP 3 were in the process of negotiating the conversion of payment plan.

3.      The complainant issued a cheque in the sum of Rs.4,06,952/-, which was dishonoured.  The delivery of the house was to be given within 36 months, as agreed.  However, the OP served several notices upon the complainant demanding payment of interest on delayed payment with the ulterior motive to gain time.  The complainant sent notice of demand on 25.9.2008 in the sum of Rs. 2,89,576/- towards interest on delayed payment vide annexure P-4.  On 14.1.2008, OP 1 issued a demand letter, according to which, a sum of Rs.1,07,312/- was still payable towards the 10^th instalments schedule to be paid on 1.12.2008.  It also mentioned that a total interest of Rs.2,47,136/- was still due and payable by the complainant.  The complainant disputed the notice but his discussion on phone or otherwise did not ring the bell.  Thereafter, the complainant fell sick and was admitted in MAX hospital, Gurgaon.  Thereafter, the correspondence went on for waiver of the interest.

4.      In May, 2009, the complainant visited the construction site but was shocked to see that the progress had not even reached half way through the construction.  The complainant was paying banking instalments of Rs.50,000/- per month.  The house was not ready and, therefore, he wanted to cancel his allotment and get his money back, copy of email in this context has been placed on record as ext. P6, which is dated 11.05.2009.  Thereafter, correspondence went on.  The correspondence and original photographs were also taken on record as annexure P-7 and 8.  Legal notice annexure P-9 was given.  In the meantime, the condition of the complainant continued to deteriorate and finally in August, 2010, the complainant was admitted in the Institute of Liver and Biliary Sciences, Vasant Vihar, New Delhi, for transplantation of his liver.  Consequently, he failed to pay the monthly instalments to the Bank.  OP 2 filed a complaint before the DRT.  Ultimately, this complaint was filed with the following prayers:

“…….. the complainant prays that this Hon’ble Commission may be pleased to pass an order for :

1. A sum of Rs.59,98,560 i.e. (Rs.6,50,000/- + Rs. 6,48,560/- + Rs.47,00,000/-) that has remained deposited with the opposite party No. 1 since 13.06.2006 towards the cost of the flat;
2. A sum of Rs.59,83,749/- towards interest at the rate of 20% p.a. on the deposited amount of Rs.59,98,560/- for the respective period of time that each part of the deposited amount remained with the opposite party i.e. between 13.08.2006 to 1.05.2012 and further interest on the deposited amount with effect from 2.05.2012 till the date of realization;
3. Pecuniary and substantial loss, which is on account of the extra amount beyond the principal amount and reasonable interest that the bank is seeking to recover from the complainant by proceeding against him in the DRT, and is quantified as Rs.20 lacs.
4. Consequential losses on account of not receiving the delivery of the possession of the flat that included the financial crisis, loss of property (existing properties that the complainant had to sell in order to repay the bank), loss of business, loss of reputation amounting to sum of Rs.10,00,000/- and, incurring of litigation expenses to an extent of Rs.75,000/-.
5. Compensation to the extent of Rs.7,00,000/- on account of mental agony, trauma and harassment that the complainant was subjected to
6. Other exemplary damages that this Hon’ble Commission deems fit in the facts and circumstances where opposite party has committed breach of trust and cheating the complainant and many other innocent people like the complainant in the interest of justice.
7. Pass any such further order or direction which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

DEFENCE

5.      The OP listed the following defences.  This Commission has no pecuniary jurisdiction to entertain this complaint as the complainant had paid a sum of Rs.60 lakh only.  Again, there is arbitration clause.  As a matter of fact, the recovery proceedings initiated by ICICI bank/OP 2 are pending against the complainant.  It is provided in the complaint that in case of delay, compensation would be paid to the complainant.  Reference has been made to clause 4 (c) (ii) of the allotment letter.  That clause has not been challenged before this Commission.  The case is barred by Section 24-A of the Consumer Protection Act, 1986.  The complainant wants the flat for commercial purpose only.  The present case is not maintainable in view of various Hon’ble Supreme Court authorities mentioned in the written statement.  The complainant is bound by the terms and conditions of the contract.  The complaint filed by the complainant is beyond the terms and conditions of the contract.  The same is not maintainable.  Deficiency in service must invoke breach of legal or contractual obligation or deficiency in service, which has been undertaken to be performed.  The complainant is a speculative investor.  Timely payment of each instalment and other charges was the essence of this transaction.   The possession was to be given within 36 months of signing hereof subject to Force Majeure circumstances beyond the control of the developer.  It was also agreed that if the Developer is not in a position to offer the apartment altogether, the Developer 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.  The complainant is entitled for the charges as per the provision 4(c)(ii) of the allotment letter.  It is averred that the present case is not the case of not offering the possession but a simple case of delay in delivery of possession for the reasons beyond the control of the OP 1 i.e. recession due to economic melt down felt in the real estate and the financial markets in India and also globally.  All the other allegations are denied.

6.      We have heard the learned counsel for the parties.

7.      Learned counsel for the OP submits that this Commission has no pecuniary jurisdiction.  He contended that he had taken this objection at the time of filing of the written statement.

8.      This argument lacks conviction.  At the time of filing of the written statement, the complainant should have insisted that this point should be decided first of all.  This question was raised after the evidence was filed by both the parties and final arguments were being advanced. Learned counsel for OP has cited an authority reported in Shahbad Cooperative Sugar Mills Ltd. vs. National Insurance Company Ltd. & Ors. II (2003) CPJ 81 (NC), which clearly lays down that counting of interest @ 18% should not be considered at the time of admission of this case.  We fully agree with this three members’ authority and are following the same in the initial cases of admission.  However, since this submission was taken at the fag end of this case, therefore, while following the Supreme Court authority in the case of Ganesh Polytechs Ltd. Vs. Transport Corporation of India, 2000 (10) SCC  418,  we are going to decide the same finally even though we do not have pecuniary jurisdiction.

9.      Secondly, it may also be noted that the OP took the lion’s share of the price of the apartment in dispute in the year 2007 itself.  Almost a decade is going to elapse.  The purpose of the OP is to delay the case unnecessarily.  A Fabian policy adopted by the OP must have benefited it a lot.  It has already succeeded to feather its own nest i.e. to make profit at the cost of others.  For this reason too, the case cannot be remanded to the State Commission.  Consequently, this argument must be eschewed out of consideration.

10.    The second submission made by Shri. Sukumar Pattjoshi, learned Senior Advocate was that as per the agreement, the amount should be given with simple interest @ 10% per annum.

11.    We clap no importance to this submission.  In  K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012,  the Hon’ble Apex Court  while relying upon the judgment passed in Ghaziabad Development  Authority  Vs. Balbir Singh, (2004) 5 SCC 65, has held that “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”.  The Apex Court, further observed as under :

“25.  The case of the complainant is covered by one of the examples cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above. In this case also, the amount was simply returned and the complainant  is suffering a loss inasmuch as she had  deposited  the money in the hope of getting a flat, but she is  being  deprived of  that  flat and thereby deprived of the benefit of escalation of the price of that flat. 

Therefore, the compensation in this case should necessarily have to be higher, as per the decision of this Court.

26.  For the reasons aforesaid, we allow  the   appeals and pass the following orders :-

i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/-  from  the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer  Forum.

ii) The respondent is directed to pay the appellant – complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.

iii)  The respondent is also directed to pay the appellant-complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her”.

12.    It is well said that Justice delayed is not only Justice denied, it is also Justice circumvented, Justice mocked and the system of Justice, undermined.

13.    As a matter of fact, the desire to acquire the above said apartment has ruined the life of the complainant.  This is an admitted fact that the OP cannot handover the apartment in dispute in favour of the complainant because OP does not seem to make much headway with its project.  After the lapse of 8-9 years, he is offering another apartment, which was rightly refused by the complainant because this apartment will also carry with it so many other problems.  It may be mentioned here that a number of cases are pending against M/s Unitech Ltd.  A joint claim by 144 complainants against it, is also pending in this Bench.  The OP harassed the complainant by asking for interest on the delayed payment when there was no progress of the project.  The complainant fell sick and was admitted in hospitals one after the another.  He took loan from Bank and due to non-payment of instalments, he has to face a complaint before the DRT.  The action of the OP qua the complainant is below the belt.  Unfortunately, the complainant has made an attempt to buy a pig in a poke (buy something without seeing or knowing that it is satisfactory).

14.    We, therefore, allow this complaint to the following extent.  The OP will pay a sum of  Rs.59,98,560/- alongwith interest @ 18% p.a. from the date of its deposit till its realisation.  The complainant is also granted compensation for harassment, mental agony, anger, anguish, frustration and saidness, a sum of Rs.50,000/- and litigation charges in the sum of Rs.50,000/-, which be paid to the complainant, within 90 days from the date of receipt of a copy of this order otherwise, it will carry interest @ 18% p.a. till its realisation.