Delhi

StateCommission

CC/815/2016

MR. INDER PAL SINGH - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

HARISH UPPAL

26 Apr 2018

ORDER

 

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 26.04.2018

                                                                                                              

                                                                   Date of decision:04.05.2018

 

Complaint No.815/2016

 

 

IN THE MATTER OF:

 

Mr. Inder Pal Singh (Sr. Citizen)

187, Ground Floor,

Vinoba Puri,

Lajpat Nagar-II,

New Delhi-110024                                               ….Complainant

                                                                                                                  

VERSUS

 

         

Unitech Ltd.,

6, Community Centre,

Saket, New Delhi-110017                                     ....Opposite Party

 

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:       Dr. Harish Uppal, Counsel for the Complainant

                   Sh. Ankur Setia, Counsel for the Opposite Party          

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

 

JUDGEMENT

1.           Sh. Inder Pal Singh, resident of New Delhi has filed this complaint before this Commission under Section 17 of the Consumer Protection Act 1986 (For short complainant) against the Unitech Ltd., hereinafter referred to as opposite parties, alleging deficiency of service on the part of the Ops in not delivering the possession of the flat booked by him within the agreed time and praying for the relief as under:

 

The respondent / OP be directed to pay back Rs. 22,70,060/- with interest as compensation @ 18% p.a. as on date of filng the complaint coming to Rs. 14,41,596/- totalling to Rs. 37,11,656/- (Thirty seven lacs eleven thousand six hundred fifty six only) as on 25/07/2016 (that is total amount payable till that date) along with interest @ 18% p.a. on/till the date of payment is made by OP as compensation/interest in the nature of compensation; along with the damages and harassment and cost of the complaints as may be quantified by the Hon’ble Commission in the facts and circumstances of the case.

That any other and further relief in favour of the complainant as the Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.

 

2.           Facts of the case, necessary for the adjudication of the complaint, are these.
3.           The complaint led by the assurances and advertisement of the Ops had booked an apartment for their personal use with them in their project known as “THE RESIDENCE” in plot No GHP0001, Sector 117, Noida, Uttar Pradesh on 14.04.2012 by paying the booking amount of Rs. 2,00,000/-. Total sale consideration for the purpose was Rs. 43,62,300/-. The payment was to be made on construction linked basis.
4.           The OPs on receipt of the booking amount allotted the complainant a unit No: 1204 on 12^th Floor of Block A 2 of 105.91 sq. mtr. (1140 sq. ft.) in “THE RESIDENCE” Plot No: GHP0001, Sector 117, Noida, U.P. on 12.05.2012. The possession of the flat was agreed to be delivered within 36 months from the date of signing of terms and conditions of allotment which means on a before 14.05.2015. The relevant clause of the agreement is reproduced below:

 

“The possession of Apartment is expected to be delivered by the Developer within 36 months hereof subject to Force Majeure circumstances (as mentioned herein) or the circumstances beyond the control of the Developers and upon registration of Sub Lease Deed provided that all amounts due and payable by the Allottee(s) have been paid to the Developer. It is, however, understood between the parties that various Blocks/Towers/amenities/structures comprised in the Complex/Township shall be ready and completed in phases.”

 

5.           In the event of the default on the part of the developer in observing the time schedule in the matte of delivery of the flat, he would be liable to refund the amount as per the terms of agreement as indicated below:

 

“If for any reason the Developer is not in a position to offer the allotted Apartment, the Developer shall offer the Allottee(s an alternative property or refund the amount paid by the Allottee(s) with simple interest @ 10% per annum without any further liability to pay damages or compensation of any kind whatsoever.

 

6.           The OPs were noticed and were directed to file the written statement but when the written statement was not filed within the time allowed, their right to do so stood closed vide proceedings recorded on 21.03.2017. The complainants have filed their evidence by way of affidavit reiterating what was averred in the complaint.
7.           The complaint was listed before us for final hearing on 26.04.2018 when the Counsel for both sides appeared and advanced their arguments. We have perused the records and given a careful consideration to the subject matter.
8.           Having bestowed our consideration to the facts at hand, we are of the 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.  In these circumstances we reach to an inevitable conclusion that there was gross deficiency, as defined in Section 2(1) (g). It is a trite law that where possession of the property is not delivered within the stipulated period the delay so caused is not only deficiency in rendering service, such deficiency or omission tantamount to unfair trade practice as defined in the Act as well. For reference Lucknow Development Authority versus M.K. Gupta-(1994) 1 SCC 243.
9.           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 they have suffered at the hands of OPs on account of non-delivery of the allotted flat.
10. 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 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.
11. In view of the discussion done we direct the OPs to refund the principal amount paid by the complainant delivery of the possession of the flat since not a possibility, with simple interest @ 10% p.a. from the date of receipt of the amount till its realisation. The interest of 10% is awarded keeping in view the terms of the agreement executed between the parties (Supra).
12. 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)