Chandigarh

StateCommission

A/107/2016

Amandeep Sharma - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Ajay Sharma, Adv.

19 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	107 of 2016
Date of Institution	:	05.04.2016
Date of Decision	:	19.05.2016

 

1. Amandeep Sharma son of Shri Surinder Pal Sharma.
2. Jyoti Sharma wife of Shri Amandeep Sharma both residents of House No.9, Adjoining Batta School, Rajpura Colony, Patiala, Punjab.

 

……Appellants/Complainants

V e r s u s

1. Unitech Limited, Head Office at 6 Community Centre, Saket, New Delhi-110017, through its Chairman.
2.  Unitech Limited, Marketing Office at SCO No.189-190-191, First Floor, Sector 17-C, Chandigarh, UT, through its Regional Manager.
3.  Alice Developer Private Limited Office at Basement, 6 Community Centre, Saket, New Delhi-110017 through its Chairman.

 

              ....Respondents/Opposite Parties

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:           Sh.Ajay Sharma, Advocate for the appellants.

                         Mrs.Vertika H.Singh, Advocate for respondents no.1      and 2.

                         Sh.Durga Dutt Sharma, Advocate proxy for Ms.Nidhi    Ayer, Advocate for respondent no.3.

 

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

            This appeal has been filed by the complainants/appellants against an order dated 26.02.2016, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the Forum only), by stating that the Forum erred in not granting interest, while ordering refund of the amount of Rs.13,00,192/- deposited by them, from the respective dates of deposits and also for enhancement of compensation for mental agony and physical harassment.

2.       The facts in brief are that the appellants purchased a residential flat, in the project of the respondents, launched by them, under the name and style of “Gardens” Uniworld City, Sector 97, Mohali, Punjab. Alongwith application dated 24.01.2012, an amount of  Rs.4,11,000/-, vide different cheques, was paid by the appellants, as a result whereof, vide allotment letter dated 31.02.2012, they were allotted flat No.0204, Block C-2, in the said project, for total sale consideration of Rs.45,83,475/-. Apartment Allotment Agreement dated 23.03.2012 was executed between the parties. As per Clause 4.a (i) of the Agreement, possession of the unit, in question, was to be delivered within 36 months from the date of signing of that Agreement i.e. on or before 22.03.2015. It was stated that, after making payment of substantial amount of Rs.13,00,192/- the appellants visited the site but were surprised to see that there was no construction and development at the site. In those circumstances, the appellants sought refund of the deposited amount alongwith interest and compensation, but the respondents failed to do so. Left with no alternative, legal notice dated 30.01.2015 was also served upon the respondents, but it did not yield any result, as a result whereof, consumer complaint bearing no.516 of 2015 was filed by the appellants, before the Forum, on 06.08.2015.
3.       The respondents, in their joint written reply, admitted that the appellants applied in their project and were allotted the said unit. Payment of an amount of Rs.13,00,192/- by the appellants, towards part sale consideration of the said unit was also admitted. However, it was stated that as per clause 4.a(i) of the Agreement, the period of 36 months for delivery of possession of the unit, was tentative, subject to force majeure circumstances. Possession of the unit, in question, could not be delivered to the appellants, on account of global meltdown of the economy worldwide, and also various reasons, beyond the control of the Company. It was stated that as per clause 8(b) of the Agreement, the respondents were entitled for extension of time for delivery of possession, on payment of penalty for the delayed period. It was denied that the appellants ever approached the respondents or made any request regarding refund of the amount deposited. 
4.       The Parties led evidence, in support of their case.
5.       After hearing Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, partly accepted the complaint, and granted following relief to the appellants:-

“In view of the above discussion, we are of the opinion that the present complaint deserves to succeed. The same is accordingly partly allowed. The OPs are directed as under :-

(i)    To refund of the amount of Rs.13,00,192/- to the complainants;

(ii)   To pay Rs.1,00,000/- as compensation for mental agony and harassment caused to the complainants;

(iii)  To pay Rs.10,000/- to the complainants as costs of litigation. 

This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above.”

6.       Feeling aggrieved, against non-grant of interest on the amount of Rs.13,00,192/- ordered to be refunded, from the respective dates of deposits, as also for enhancement of compensation, the instant appeal, has been filed by the appellants.
7.       We have heard Counsel for the parties, and, have gone through the evidence, and record of the case, carefully. 
8.       Counsel for the appellants submitted that once it was held by the Forum that deficiency in rendering service on the part of the respondents, in non-delivery of possession of the unit was writ large and also they adopted unfair trade practice, by utilizing the money deposited by the appellants, for a long time, without providing them anything, it was required of it (Forum), to order refund of the amount deposited alongwith interest, from the respective dates of deposits till realization, but it erred in not doing so. He further submitted that even compensation granted by the Forum is on the lower side, which needs enhancement. It was prayed that the order of the Forum needs modification, to this extent.
9.       On the other hand Counsel for the respondents submitted that the order passed by the Forum, being illegal and invalid, is liable to be set aside.
10.       The core question that falls for consideration, is, as to whether, the appellants were entitled to interest on the amount of Rs.13,00,192/-, ordered to be refunded by the respondents, vide the order impugned. It is an admitted case that the respondents failed to deliver possession of the unit, within the stipulated period, mentioned in the Agreement i.e. on or before 22.03.2015 or even by the date the arguments were heard by the Forum and impugned order dated 26.02.2016 was passed, for want of construction and development at the site. At the same time perusal of the order impugned, reveals that the stand taken by the respondents, that they encountered force majeure circumstances, as a result whereof, possession of the unit, in question, was delayed, was negated by the Forum, while holding that there was deficiency in rendering service and also adoption of unfair trade practice on their part, and, as such, they (respondents) had no right, to retain the hard-earned money of the appellants, deposited towards price of the unit, in question, for such a long time.  It may be stated here that, once it was so held by the Forum, it was required of it to order refund of the amount of Rs.13,00,192/- deposited by the appellants, alongwith interest, but it erred in not doing so. The said amount had been used by the opposite parties, for their own benefit. On the other hand, the appellants suffered a loss inasmuch as they had deposited the money in the hope of getting a flat, but they were deprived of the same. Definitely, they have been deprived of the benefit of escalation of the price of that flat, and now they will not be able to get a similar flat of same size in the same price, for which they had booked in the year 2012. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest (compounded quarterly @18%) as per Clause 2.c. of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335).
11.       In view of above, the appellants were certainly entitled to get refund of the amount deposited by them, to the tune of Rs.13,00,192/-, alongwith interest. Thus, interest @15% compounded quarterly, from the respective dates of deposits, till realization, if granted, to the appellants, that shall meet the ends of justice. The order of the Forum needs modification to this extent.
12.        The next question, that falls for consideration, is, as to whether, compensation awarded by the Forum, is adequate or on the lower side. The Forum awarded compensation to the appellants, to the tune of Rs.1 lac, for mental agony and physical harassment. It is settled principle of law, that compensation should neither be excessive nor too meagre. It must commensurate with the facts and circumstances of the case. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the compensation should be commensurate with loss and injury, suffered by the complainant. The Consumer Foras are not meant to enrich the consumers, at the hands of the service providers, by awarding excessive compensation. Apart from this, the appellants have now been granted interest @15%, on the amount of Rs.13,00,192/-, from the respective dates of deposits till realization, which will take care of the loss suffered by them, as the same will neutralize cost escalation. It is therefore held that the compensation amount, to the tune of Rs.1 lac, granted by the Forum, towards mental agony and physical harassment, suffered by the appellants, is reasonable, fair and adequate. The plea taken by Counsel for the appellants, in this regard, being devoid of merit, is rejected.
13.       No other point, was urged, by Counsel for the parties.
14.       For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the Forum is modified, and the respondents are jointly and severally directed as under:
    1. To refund the amount of Rs.13,00,192/-alongwith interest compounded quarterly @15% from the respective dates of deposits onwards till realization, to the appellants;
    2. The reliefs qua compensation for mental agony & physical harassment and litigation expenses, granted by the Forum, shall remain intact.
    3. This order shall be complied with, by the respondents, within a period of 45 days, from the date of receipt of a certified copy of the same, failing which, the amount mentioned at sr.no.(i) above, shall carry penal interest @16% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amount of compensation and litigation expenses, already granted by the Forum, from the date of filing of the consumer complaint, till realization.
15.       Certified copies of this order, be sent to the parties, free of charge.
16.       The file be consigned to Record Room, after completion

Pronounced.

19.05.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

 

(DEV RAJ)

MEMBER

 

 

 

 

(PADMA PANDEY)

      MEMBER

 

 

Rg