Delhi

StateCommission

CC/316/2015

KISHAN CHAND & ANR. - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

03 Jul 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 03.07.2018

                                                                                                              

                                                                   Date of decision:06.07.2018

 

 

Complaint No. 316/2015

 

 

 

IN THE MATTER OF:

 

1. Kishan Chand Son of Late Sh. Jagat Ram
2. Sushil Manglani Son of Sh. Kishan Chand

 

Both Residents of BN-5,

First Floor Shalimar Bagh (West)

New Delhi-88....Complainants

                                                                                                                  

 

VERSUS

 

          Unitech Ltd.

Having its registered office at 6,

Community Centre Saket

New Delhi-17                                                                 ….Opposite Parties

         

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

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. Sachin Jain, Counsel for the Complainant             

                   Sh. Ankur Setia, Counsel for the OP

                  

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           Point for consideration in this complaint under Section 17 of the Consumer Protection Act 1986 (the Act) filed by Sh. Kishan Chand and another, for short complainant against Unitech Ltd., hereinafter referred to as OPs, is whether the complainants are entitled for the refund with interest as prayed for, OPs having not delivered the possession of an apartment within the time as agreed to, despite about 90% of the payment having been made.
2.           Facts of the case, necessary for the adjudication of the complaint are these.
3.           The complainants, father and son, had applied for an apartment with the OPs on 02.05.2016 in the group housing scheme called “UNITECH HORIZON” situated at plot No.6, Sector Pi-2 (ALOSTONIA ESTATE) Greater Noida, Gautam Budh Nagar, Uttar Pradesh, by paying the booking amount of Rs. 4,50,000/- and as a consequence thereof the OPs had allotted to the complainants an apartment of the size of 1695 sq. ft. bearing number 0903 in Tower 23 on 9^th floor. Total sale consideration was fixed at Rs. 49,14,645/-. An agreement was executed thereafter stating among others, that the possession of the flat would be delivered by 15^th November 2008. The complainants as per the agreement and as per the demand raised had paid by 25.11.2010, 90% of the total sale consideration.
4.           The OP however failed the deliver the possession within the time fixed in the allotment letter. The complainant visited the office of the respondent several times but the respondent kept making false promises with no bonafides to deliver. The OPs had allegedly failed to complete the project on the one pretext or the other resultantly failed to deliver the possession. The complainant had already paid almost the entire sale consideration but avoided any dispute with the respondent fearing of losing both the money and the property and kept waiting for the possession, which builder never delivered.
5.           Finally when pushed to the wall the complainant by way of a letter dated 31.03.2015 requested the OPs to refund the entire amount paid with interest as completion of construction appeared no where near completion. The relevant extract of the letter are indicated below:

         

“That your company has been postponing the possession of the flat without any reasonable excuse and has been only giving false assurances. The last time when I visited your office in month of September 2014 your manager had assured me the possession positively by 31^st March 2015 along with damages. However on my asking he refused to give anything in writing. I waited even for that period but to my surprise no progress has been made since then and now I am being asked to wait for another six months for which I am not ready and willing.

I therefore do hereby call upon you to refund my entire amount with an interest at the rate of 18 p.a compounded quarterly from the respective dates of payments along with compensation of Rs. 10 Lacs for Mental harassment and agony and for unlawfully depriving me of my legitimate right to acquire the residential abode for myself and for my family even after the payment of full sale consideration, within 15 days of this letter of demand, falling which I shall be constrained to take legal action both civil and criminal against the company and the Directors at your costs and consequences.

 

6.           The OPs however did not accede to the request made by the complainants, leading to filing of this complaint, praying for the relief as under:

 

1. Refund the entire amount of Rs. 4945222 (Rupees forty nine lacs forty five thousand two hundred and twenty two) paid by the complainants to the respondent till date with compound interest at the rate of 18% p.a. from the date of payments till refund.
2. Pay compensation to the complainants at the rate of Rs. 5 per sq. ft. Per month from the date of default till the date of actual payments.
3. Pay compensation of Rs. 10 lacs for mental agony, harassment and for unlawfully depriving the complainants from their home and money both for 8 long years.
4. Pay cost of litigation to the tune of Rs. 2 lacs.
5. Such further relief as this Hon’ble Commission may deem fit in the fact of the case in favour of the complainants and against the respondent.

 

7.           OPs were noticed and in response thereto they have filed written statement resisting the complaint stating that the complainants have not approached the Commission with clean hands, concealing and misrepresenting the facts. The OPs have however admitted the delay done in handing over the possession but tried to justify the delay owing to the fact that the farmers from whom the land was purchased by the NOIDA authority and allotted to the OPs for development went on strike asking for compensation at the increased rate. This took a lot of time to settle this issue but in the process there was delay. The OPs had also agreed to pay compensation to them for the delayed period as the delay done was for reasons beyond their control, force majure.
8.           The complainants thereafter had filed rejoinder and evidence rebutting the averments made in the written statement and reiterating the averments contained in the complaint. Both sides have filed their evidence and written arguments.
9.           The matter was listed before us for final hearing on 03.07.2018 when counsel for both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
10. The complainant has two folded arguments, namely, having deposited the amount he has lost the interest which he would have otherwise earned and, secondly, due to non-delivery of the possession of the flat he had to live on rented accommodation. Further the OPs have earned interest out of the money deposited and by efflux of time the value of the land has gone up and now if he looks for alternate he would be required to pay a lot more. The Hon’ble NCDRC in the matter of Lalit Kumar Gupta and ors versus DLF Universal Ltd., as reported in III [2002] CPJ 54 (NC) is pleased to hold as under:

 

“There has been a delay in delivery of the possession of the Town house which is deficiency in service within the definition of the word under the Consumer Protection Act 1986”

 

11. At the very outset the ld. Counsel for the complainants while alleging that the OPs have indulged in unfair trade practice, has prayed for refund of the amount with interest as he is no longer interested in the possession of the apartment ten years after the due date. Infact completion of the construction of the apartment even on the date of filing of the complaint does not seem even remotely a possibility. There exists nothing on record to controvert the submissions made or allegations levelled.
12. 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).
13. Having bestowed our anxious consideration to the facts of the case, we are of the considered opinion that the complaint deserves to be allowed and having arrived at this conclusion the point for determination is the relief the complainant can be granted in the facts and circumstances. The complainant has to be compensated, he having suffered the mental agony and physical harassment. The Hon’ble Apex Court in the matter of Ghaziabad Development Authority versus Balbir Singh as reported in (2004) 5 SCC 65 is pleased to hold that there can be no fixed formula for the purpose. It would depend on the facts of each case.
14. The Hon’ble NCDRC in the matter of Satish Kumar Pandey and Anr versus Unitech Ltd. (CC-427/14) as reported in 2015 SCC online NCDRC 14, is pleased to order on 08.06.2015 directing the OPs, inter alia, to pay compensation at the rate of 12%.
15. The NCDRC in one case, namely, Emaar MGF Land Pvt. Ltd. another versus Krishan Chander, RP 873/13, decided on 29.09.2014, is pleased to hold as under:

 

“The act of the builder in not handing over the possession of the plot even after collecting the total charges and executing the agreement amounts to deceptive practices, leading to unfair trade practices.”

 

16. The Hon’ble NCDRC in the matter of Merlin Projects Ltd. and Anr versus Pandav Roy and another, FA-128/09, decided on 23.05.2014, is pleased to hold as under:

“Appellant to pay to the respondent a sum of Rs. 50 lakh for non-delivery of the possession of the immovable property.”

 

17. The Hon’ble Apex Court in the matter of DDA versus Krishan Lal Nondrayog as reported in IV [2010] CPJ 7 (SC) is pleased to hold as under:

“NCDRC directed the appellant to pay interest @ 18% on account of delay caused in delivery….. The Hon’ble Apex Court affirmed the order but reduced the rate of interest @ 5%, observing that award of interest @ 15% is not interest in substance but it is to compensate the respondents by way of damages for loss in terms of money, mental agony and harassment caused…..

 

18. In yet another case, in the case of HUDA versus Sushila Devi Sharma reported in IV[2011] CPJ 3 (SC) the Hon’ble Apex Court ruled that orders of NCDRC holding that the HUDA not having offered the possession have been deficient, does not call  for any interference and the SLP was dismissed.
19. The ld. Counsel for the complainant has drawn our attention to the judgment of the Hon’ble Apex Court in the matter of Lata Construction and ors. Versus Dr. Rameshchandra Remniklal Shah, AIR 2000 SC 380, upholding the judgment of the NCDRC directing the respondents to refund the amount together with 18% interest and cost.
20. 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, nor a possibility in the near future with simple interest @ 12% p.a. from the date of receipt of the amount till its realisation. These directions may be carried out within a period of two months from the date of receipt of the certified copy of this order.
21. Ordered accordingly. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. File be consigned to record.  

 

 

(ANIL SRIVASTAVA)                                                                                          (O.P.GUPTA)

MEMBER (GENERAL)                                                                           MEMBER (JUDICIAL)

•