Delhi

StateCommission

CC/11/103

HARVINDER HUNJAN - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

24 May 2016

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 24.05.2016

Complaint Case No. 103/2011

In the matter of:

1. Mr. Ranbir Hunjan
2. Mrs. Harvinder Hunjan

Both Resident at:

33, Hollywood Road

•  

SW 10 9HT                                         .........Complainants

 

Versus

 

M/s Unitech Ltd.

6. Community Center

Saket, New Delhi-110017

 

Also at:

 

Unitech Signature Towers

South City-II

NH-8, Gurgaon-122001                     .......Opposite Party

                                                                  

CORAM

 

N P KAUSHIK                         -                  Member (Judicial)

 

1.       Whether reporters of local newspaper be allowed to see the judgment?           Yes

2.       To be referred to the reporter or not?                                                       Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

Judgment

1.      Admitted facts of the complaint are that the complainants Sh. Ranbir Hunjan and Mrs. Harvinder Hunjan who happened to be the husband and wife got booked a flat with M/s Unitech Ltd. 6 Community Center, New Delhi-110017 (in short the ‘OP’) in one of its projects called ‘Capella’. An application dated 08.05.2007 was filed by the complainant with the OP. On 30.06.2007, the OP confirmed the allotment of flat No. 1604 in Tower No. 19 on 15^th Floor in the project Capella Greater Noida (UP). Out of the total consideration of Rs. 49,60,808/-, the complainant paid an amount of Rs. 4,72,230/- towards registration amount. Amount of Rs. 42,60,512/- was paid by the complainant within a period of forty five days from the date of registration. It was agreed between the parties that the construction of the flat would be completed within a period of forty months from the date of allotment. Accordingly a notice of possession was agreed to be issued by the OP to the complainants on or before 30.10.2010.
2.      On various visits to the OP made by the complainants, OP made an offer of two alternate properties as the construction of the flat in question was not complete. On finding the rates of the alternate property much higher than the property in question, the complainants rejected the proposal of the allotment of alternate property. Complainant did not receive any further response from the OP. Legal notice dated 25.02.2011 was issued to the OP. It remained unreplied. Complainants prayed for refund of the amount of Rs. 46,60,608/- alongwith compensation to the tune of Rs. 10,00,000/- for causing inconvenience and mental agony. Interest @ 10% p.a. from the date of deposit of the aforesaid amount has also been prayed for.
3.      OP in its written version admitted the payment of aforesaid amount by the complainants. It also admitted the offer of the alternate properties given to the complainants when the construction of the flat in question was not complete.
4.      Defence raised by the OP is that as per agreement between the parties, matter is required to be referred to arbitrator. Next submission of the OP is that the jurisdiction to entertain and try the present complaint lies only with the court at Gautam Budh Nagar (Noida). OP submitted that the complainants have filed the present complaint with a motive of avoiding payment of the huge court fee. Lastly the OP submitted that the complaint is barred by time as most of the money was deposited by the complainant in the year 2007 and the complaint is filed on 20.04.2011. It was due to ‘force majeure’ that the OP could not complete construction.
5.      Rejoinder was filed by the complainant reiterating the averments made in the complaint. Parties also placed on record their affidavits towards evidence. I have heard at length the arguments addressed by the counsels for the parties.
6.      Objection of the OP to the effect that the matter is required to be referred to arbitration is of no avail for the reason that in the case of Skypak Couriers Ltd. V. Tata Chemicals Ltd., (2005) 5 SCC 294, it was made clear by the Apex Court that the existence of an arbitration clause is not a bar to the entertainment of the complaint under the Consumer Protection Act. The provisions of the Consumer Protection Act are in addition to the provisions of any other law.
7.      Contention of the OP that the court at Gautam Budh Nagar (Noida) alone has jurisdiction to hear the matter is devoid of merits as statutory rights of the complainants for seeking remedy under Consumer Protection Act cannot be taken away by any agreement between the parties as held in the case of Fair Air Engineers (P) Ltd. V. N.K.Modi, (1996) 6 SCC 385. The relevant portion of the case is reproduced below:

15.... Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.

16....It would, therefore, be clear that the legislature intended to provide a remedy in addition to the arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.

 

8.      Contention of the OP is also that the complainants filed the complaint in the Consumer Court to avoid payment of court fee. Plea does not help the OP for the simple reason that the proceedings under Consumer Protection Act are an additional remedy to the aggrieved party. Case of the complainant is not barred by time as the payment of major portion of the amount to the OP cannot be taken as the time of cause of action accruing. Cause of action finally arose when the OP failed to complete the construction or refund the money deposited by the complainant.
9.      OP has failed to indicate the circumstances leading to ‘force majeure’ as claimed by him.
10. Admittedly the OP was required to complete the construction of the flat within a period of forty months from the date of agreement. Admittedly the construction was not complete at the relevant time and is still not complete. Any offer of alternate property cannot be the ground for denial of relief prayed for. A clause in the agreement to the effect that compensation @ Rs. 7 per sq. ft. per month for the period of delay in possession again is of no avail to the OP as the said compensation is ridiculous. It cannot give a right to the OP to delay the construction and make misuse of money given by the complainant. Hon’ble National Commission in the case of Sunil Mantri Reality Ltd. Vs. K. Sreelatha & Anr, IV (2012) CPJ 295 (NC) observed as under:

 

“Such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other. Petitioner has made respondent run from one Fora to other Fora so that they cannot have any roof over their head and he (petitioner) can go on enjoying respondents money without any hindrance.”

 

11. In view of the discussion above, I am of the considered opinion that the OP has indulged in ‘unfair trade practice’. I, therefore, direct the OP to pay to the complainant as under:

 

1. to refund an amount of Rs. 46,60,608/- alongwith interest @ 18% p.a. from the date of deposit till the date of its realisation.
2. to pay compensation to the tune of Rs. 5,00,000/- to the complainant for harassment, inconvenience, sadness, mental agony and anguish caused to the complainant.
3. to pay litigation charges to the tune of Rs. 1,00,000/- to the complainant.

The abovesaid amounts shall be paid by the OP to the complainant within a period of sixty days from today failing which the OP shall be liable to pay interest @ 24% p.a. on the amount accruing after the expiry of the period of sixty days. Complaint is accordingly disposed of.

12.  Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

 

(N P KAUSHIK)
MEMBER (JUDICIAL)​