Delhi

StateCommission

CC/575/2016

KANVERJEET SINGH SABHARWAL - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

RAJESH GUPTA

18 May 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 18.05.2018

                                                                                                              

                                                                   Date of Decision:22.05.2018

 

 

Complaint No. 575/2016

 

IN THE MATTER OF:

 

Sh. Kanverjeet Singh Sabharwal

12/37, Tilak Nagar,

New Delhi-110018                                                         ….Complainant

                                                                                                                  

 

VERSUS

 

         

M/s Unitech Limited                                

6, Community Centre,

Saket, New Delhi-110017                                                       

 

Also at

P-7, Sector 18,

NOIDA-201301    

Uttar Pradesh                                                                 ….Opposite Parties

         

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. Harpreet Singh, Counsel for the complainant

                   Sh. Ankur Setia, Counsel for the OP

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           Sh. Kanverjeet Singh Sabharwal, resident of Delhi, has filed this complaint before this Commission under Section 17 of the Consumer Protection Act 1986, for short complainant, against the Unitech Limited, hereinafter referred to as Opposite Parties, alleging deficiency of service on the part of the OP in not handing over the possession of the flat applied for by him despite the substantial payment as per schedule having been made and despite agreed time for the purpose having been elapsed and praying for relief as under:

 

1. Allow the complaint and pass an appropriate direction/order that there has been a deliberate and intentional deficiency of service on part of the opposite party/respondent, which consequently results to inter alia passing of the following orders.
2. Direction to the opposite party/respondent to forthwith and within six month of the filing of the complaint to handover the flat in question, namely, flat no. 1502 on 14^th floor in Block/Tower 22 having an approximate area of 1693 square feet in the project/property developed by them, namely, “Unitech Horizon”, Plot No. 6, Sector Pi-2, (Alistonia Estate) Greater Noida, District Gautam Budh Nagar, Uttar Pradesh complete in all respects in terms or letter of allotment dated 11.05.2006 be delivered to the complaint.
3. Direction be issued to the respondent/opposite to pay damages towards the delay in handing over the possession of the flat in question to the complainant amounting to Rs. 55,32,646/- as detailed I paragraph 15 (Supra) for the period from 15.11.2008 to 20.05.2016, i.e., till the filing of the complaint.
4. Further direction be issued to the respondent to pay interest on the deposited amount at the rate of 18% per annum as the penalty towards the delay charges to the complainant from the date of the filing of the complaint till the date of actual possession of the flat in question to the complainant.
5. Direction be issued to the respondent/opposite party to reimburse and pay a sum of Rs. 18,58,035/- to the complainant towards the interest paid by the complainant to his bankers, namely, Citibank, on the loan amount for the payment of sale consideration amount to the opposite party.
6. Direction be issued to the respondent/opposite to execute all title document concerning the flat in question in favour of the complainant.
7. Direction is also required to be issued to the respondent/opposite to pay a sum of Rs. 10,00,000/- to the complainant towards the mental agony, harassment caused by the opposite party to the complainant.
8. Direction be issued to the respondent/opposite party requiring them to adjust the amount payable by the complainant at the time of taking possession of the flat in question from the damages and other amounts, which shall become due and payable by the opposite party, as determined by this Hon’ble Commission.
9. Costs of the complaint be awarded to the complainant.
10. Any other or further relief in favour of the complainant as this Hon’ble Commission may deem fit and proper may also be granted.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant had booked a residential flat with the opposite parties in their project namely, “Unitech Horizon” at plot No.6, Sector Pi-2, District Gautam Budh Nagar, Uttar Pradesh and booking amount of Rs. 4,01,476/- was paid to the opposite parties on 11.05.2006. Sale consideration for the purpose was fixed at Rs. 42,85,725/-. An allotment letter was issued on receipt of the booking amount, allotting the complainant apartment, flat no:1502, in Tower 22 on 14^th floor of the project. Possession of the flat was agreed to be handed over on or before 15.11.2006.
4.           The complainant thereafter in furtherance of the allotment letter made further payment of Rs. 35,74,263/- and Rs. 1,22,248/- for which receipts were also issued.
5.           The complainant approached the OP in October/November 2008 to find out the date by which possession of the flat would be delivered and he was informed that by March 2010 this would be done. Nothing happened despite sincere efforts made by the complainant to get the possession of the flat. OPs never indicated anything in substance about it. Since the OPs had acted in contravention with the terms of the conditions stipulated in the allotment letter, finding no other solution, the complainant had filed this complaint for the redressal of his grievances.
6.           OPs were noticed but they having failed to file their WS, within permissible time as indicated in the statute their right to do so stood closed vide proceedings recorded on 25.07.2017. The complainant has however filed his evidence by affidavit. The matter was listed before us for final hearing on 18.05.2018 when counsel from both sides appeared. I have perused the records of the case and carefully considered the issued involved. 
7.           The ld. Counsel for the complainant stressed the point that despite he having made the payment as required and despite the agreed time having elapsed, the OP have not adhered to the terms of the agreement in handing over the physical possession of the flat which they were under an obligation to do so.
8.           The ld. Counsel for the Complainant has alleged deficiency in service and unfair trade practice on the part of the OPs in not handing over the possession of the flat in question within the time, resulting in the financial loss and mental agony to the complainant. In that view of the matter the inevitable conclusion is that there was gross “deficiency”, as defined in Section 2(1)(g) of the Act, on the part of OP in its failure to deliver possession of the subject flat to the complainants in terms of the agreement to sell. It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade as defined, under Section 2(r) (ii) of the act, as well. (See: Lucknow Development Authority vs. M.K. Gupta-(1994) 1 SCC 243).
9. Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted.
10. Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted flat.
11. 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 of the part of the part of the OP. In Ghaziabad Development Authority vs. Balbir Singh-(2004) 5CC 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 our 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.
12. We have given our careful consideration to the subject matter, as also the law laid down by their Lordship.
13. In view of the discussion done, and on consideration of the facts and circumstances, we direct the OPs to refund the principal amount paid by the complainant, delivery of the possession of the flat since not done within the agreed time, with simple interest @ 10% p.a. from the date of receipt of the amount till its realisation. These direction may be carried out within a period of three months from the date of receipt of the certified copy of this order.
14. Ordered accordingly. A copy of this order be forwarded both to the parties to the case free of cost as statutorily required. File be consigned to record.

 

                                                                                                      

                                                                                                              (ANIL SRIVASTAVA) 

                                                                                                              MEMBER (GENERAL)                                                                                                                                

             

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