Delhi

StateCommission

CC/862/2015

AKHILESH KUMAR SINGH TOMAR - Complainant(s)

Versus

SUPERTECH LTD. - Opp.Party(s)

04 Mar 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:­­­04.03.2020

                                                                                                              

                                                                   Date of decision:13.03.2020

 

Complaint No.862/2015

Complaint No.863/2015

Complaint No.864/2015

Complaint No.867/2015

 

 

IN THE MATTER OF

 

1. CC-862/2015

AKHILESH KUMAR SINGH TOMAR

S/o of Sh. Rishi Pal Singh

R/o 591, Krishna Puri,

Civil Lines, Budaun 243601,

Uttar Pradesh….Complainant

 

VERSUS

 

SUPERTECH LIMITED

1114, Hemkunt Chambers,

11, Floor, 89,

Nehru Place, New Delhi-110019....Opposite Party

 

2. CC-863/2015

MUKUL VERMA

S/o Sh. Fakir Chand

R/o H.No. 169, Sector 13,

Vasundhara,

Ghaziabad, U.P.=201012….Complainant

 

VERSUS

 

SUPERTECH LIMITED

1114, Hemkunt Chambers,

11, Floor, 89,

Nehru Place, New Delhi-110019....Opposite Party

 

3. CC-864/2015

K.S. CHAUDHARY

S/o Sh. Gauri Shankar Chaudhary

R/o C-81, 2^nd Floor,

C-2, Ram Prastha, Ghaziabad-201011

 

KUSUM CHAUDHARY

W/o Sh. K.S. Chaudhary

R/o C-81, 2^nd Floor,

C-2, Ram Prastha, Ghaziabad-201011….Complainant

 

VERSUS

 

SUPERTECH LIMITED

1114, Hemkunt Chambers,

11, Floor, 89,

Nehru Place, New Delhi-110019....Opposite Party

 

4. CC-867/2015

SUMIT SRIVASTAVA

S/o Sh. Bimal Kumar Srivastava

R/o Flat No. 422, Paradise Apartment,

Plot No. 1, Sector-09, Dwarka,

New Delhi-110075

 

VEENA SRIVASTAVA

W/o Sh. Bimal Kumar Srivastava

R/o Flat No. 422, Paradise Apartment,

Plot No. 1, Sector-09, Dwarka,

New Delhi-110075….Complainant

VERSUS

 

SUPERTECH LIMITED

1114, Hemkunt Chambers,

11, Floor, 89,

Nehru Place, New Delhi-110019....Opposite Party

 

 

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. Rahul Rathore, Counsel for the complainants in all four cases

                   Sh. Nirmal Mishra, Counsel for the OP alongwith authorised representatives

                   Sh. Arvind Kumar and Sh. Raj Mangla

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           These four complaints filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, all against the Supertech Limited, against one project, namely, Eco-village II, situated at Plot No. GH-01, Sector-16B, Greater Noida, alleging as against them deficiency of service and unfair trade practice, they having not delivered the possession of the flat within the time as agreed to, since involving same facts and law points are taken up together for adjudication. These Complaints are grouped in two parts, namely, one where the possession of the flat has been sought for with compensation in the form of interest for the delayed period and the other where the refund has been sought for with compensation.
2.           C-862/2015 [where the refund has been sought for]

Shorn of superfluities, the complainant in this case is Sh. Akhilesh Kumar Singh Tomar resident of Budaun. He had booked an apartment of 1010 sq. ft. in the project of OPs on 06.05.2010 for a total sale consideration of Rs. 21,46,755/- on construction linked basis and paid the booking amount of Rs. Two lakhs and the OPs in response thereto allotted him the apartment number C-9/208 in the said project. As a consequence thereof Allotment Letter cum Builder Buyer Agreement was issued on 30.08.2010 containing the signatures of both the complainant and the OPs. As per the aforesaid agreement the possession of the dwelling unit was to be delivered in 30 months which period could be extended owing to unforeseen circumstances for a further period of six months after 30 months which means, the allotment letter having been issued on 30.08.2010 the possession of the flat was to be delivered by 30.08.2013. The complainant made further payment as per the demand of the OPs but the complainant did not make the additional payment towards the heads not indicated in the agreement, nor he was under any obligation to do so.

3.           The allegation of the complainant is that possession of the flat has not been offered though the period as agreed to for the purpose has elapsed.
4.           The OPs on the other hand while resisting the complaint have made the averment that the delay has been owing to the stay order passed by the Hon’ble High Court of Allahabad and, secondly, the complainants are under an obligation to make the payment as demanded. Thirdly, the complainants were defaulters in making timely payments. The defence of the complainant to this argument is that they had opted for construction linked plan and payment would be made as per the construction in the project. Secondly, the stay order passed by the Hon’ble High Court was only for ten months but the delay done is substantially more.
5.           The matter was listed before this Commission for final hearing on 04.03.2020 when the counsel for both sides appeared and advanced their arguments, the complainants for the refund of the amount deposited with interest as compensation and the OPs, explaining and accounting for the delay, agreeing to pay the compensation in terms of the agreement, offered the possession of unit by July 2020. This proposal was not acceptable to the complainant as according to him as per the law settled he cannot be compelled to accept the possession of the flat after expiry of the agreed period is over.
6.           Short question for adjudication in this complaint is whether the complainant is entitled for the relief as prayed for in the facts and circumstances of the case when admittedly the OPs have not been able to hand over the possession of the flat within the time as agreed to. Having bestowed my consideration to the facts at hand I am of the considered opinion that the complaint deserves to be accepted, the possession of the flat not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.
7.           Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
8.           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. In Ghaziabad Development Authority Vs. Balbir Singh - (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 the benefit of escalation of the price of the flat/plot. Additionally, in my 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.
9.           From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
10.           The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
11.           The Hon’ble NCDRC in yet another matter, in the matter of Universal Infrastructure and Anr versus Binay Pal Singh and Anr. as reported in IV [2019] CPJ 437 (NC), relying on a judgement of the Hon’ble Supreme Court of India in the matter of Kolkata West International City Pvt. Ltd. versus Devasis Rudra, Civil Appeal 3182/2019, decided on 25.03.2019, noting that more than seven years have a already expired held that the complainant cannot be expected to wait indefinitely for possession of the allotted flat and thus entitled for compensation.
12.           The Hon’ble NCDRC in the matter of STUC Awasiya Grahak Kalyaan Association and ors versus Supertech as reported in III [2019] CPJ 226 (NC) is pleased to hold that allottee cannot be compelled to accept possession at the belated stage and thus refund of the deposited amount alongwith compensation in the form of Simple Interest at the rate of 10% was ordered. The Hon’ble Supreme Court of India has taken the same view in the matter of Pioneer Urban Land and Infrastructure Ltd. versus Govindan Raghavan as reported in II [2019] CPJ 34 (SC).
13.           Besides, 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.

 

14.           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.

 

15.           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 Parasvnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

 

16.           The ld. Counsel for the Ops argued that the complainants are entitled for the compensation at the rate of Rs. 5/- per sq. ft. as contemplated in terms of the agreement. But that amount is too low and contrary to the law laid down by the Hon’ble Supreme Court of India and Hon’ble NCDRC in the facts and circumstances of the case. Having regard to the discussion done and the legal position having been explained I am of the view that the ends of justice would be met if a direction is issued to the OPs to refund the deposited amount with compensation in the form of simple interest at the rate of 9% from the date of deposit of the amount till its realisation. This rate of interest has been ordered keeping in view the circumstances in its entirety. This payment be made by the OPs to the complainant within a period of three months from the date of receipt of this order.
17. Ordered accordingly leaving the parties to bear the cost.
18. Second set of cases where the complainants are pressing for possession of the dwelling units booked by the complainants in C-863/2015, C-864/2015 and C-867/2015.
19. In these cases also there has been delay in handing over possession of the dwelling units booked by them. The complainants in these three cases are seeking possession but insisted for compensation in the form of interest for the delayed period. I have pondered over issues involved in these three matters.
20. Keeping in view the facts and circumstances of the case and noting that the ld. Counsel for the OPs during the course of the arguments agreed to hand over the possession of the flat as also keeping the legal position as discussed above, particularly the point that awarding the interest or the compensation for the delayed period is left to the discretion of the court deliberating upon the issue, following directions are issued to the OPs, namely,

 

1. Hand over the possession of the flat booked by the complainant and ensure execution of conveyance deed in this behalf on or before 30.06.2020 subject to their meeting the requirements and secondly,
2. Pay to the complainant compensation for the delayed period in the form of simple interest at the rate of 7% for the period from the date of possession of the flat was due to be delivered till the delivery of the possession.

 

21. The OPs are directed to comply with the directions contained in this order by 30.06.2020 failing which the complainants would be free to move this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
22. The three complaints are ordered accordingly, leaving the parties to bear the cost.
23.  A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
24. Registrar is requested to keep certified copies of this order in each case file for records and thereafter all the files be consigned to records.

 

 

 

(ANIL SRIVASTAVA) ​

MEMBER