Delhi

StateCommission

CC/816/2016

RAJESH VALEJA - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

K.C. KALRA

01 Nov 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 01.11.2018

                                                                                                              

                                                                   Date of decision:12.11.2018

 

 

Complaint No. 816/2016

 

 

IN THE MATTER OF:

 

Dr. Rajesh Valeja

S/o Mr. Kanhya Lal Valeja

 

Dr. (Mrs.) Chandan Dubey

w/o Dr. Rajesh Valeja

 

Both resident of:

AB-33, Ground Floor,

Mianwali Nagar,

Rohtak Road,

Delhi-87                                                                         ….Complainant                       

VERSUS

 

M/s Unitech Ltd.

Through its Directors

Registered office

6, Community Centre,

Saket, New Delhi-110017

 

Also at:-

M/s Unitech Ltd,

UGCV Pavilion,

Sector 96, Expressway,

Noida-201305 (UP)        

 

Unitech House L Block,

South City-1,

•  

Haryana                                                                       ….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. Diwansh Bhalnagar, Counsel for the Complainant

                   Sh. Varun Katyal, Counsel for the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint has been filed before this Commission by Dr. Rajesh Valeja and Dr. (Smt.) Chandan Dubey, husband and wife, resident of Delhi, for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against the M/s Unitech Ltd., hereinafter deficiency to as OPs, alleging deficiency of service on the part of OP in not handing over possession of the flat booked by the complainants despite agreed period payment to the extent of requirement having been made and praying for the relief as under:

 

1. Pay a sum of Rs. 54,19,687/- invested money along with interest @ 18% p.a.
2. Pay a sum of Rs. 5,00,000/- for mental agony, anxiety, agony etc suffered by my client;
3. Allow the costs of the complaint;
4. Any other relief which this Hon’ble Forum deemed fit and proper be allowed in favour of the complainant as against the OPs.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants were provisionally allotted by the OPs an apartment of 1730 sq. ft. in their project, namely, UNITECH HABITAT bearing number 1002, floor 10, HBTN-Tower-5, Unitech Habitat, plot no: 9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh on 12.10.2006 on receipt of the booking amount of Rs. Five Lakh out of the total sale consideration of Rs. 56,63,510/-. Possession of the flat in terms of the allotment letter was to be issued within 36 months from the date of the said allotment letter subject to Force Majeure. The relevant clause of the allotment letter detailing about the possession of the flat is indicated below:

 

4.a     possession

That the possession of apartment is proposed to be delivered by the Developer to the Allottee(s) within 36 months of signing hereof subject to force majeure circumstances beyond the control of the Developer, and upon registration of Sub Lease Deed provided all amount due and payable by the Allottee(s) as provided herein have been paid to the Developer. It is, however, understood between the parties the various towers comprised in the complex shall be ready and completed in phases and handed over, accordingly.

4.           From the above it is clear that the possession of the flat was to be handed over by October 2009, the agreement being for 36 months. The complainant had made the payment of Rs. 54,19,687/-.
5.           The complainant has alleged that all the assurances and promises of the OPs were found to be false inasmuch as on inspection he found that even after more than four years of the execution of the allotment letter the construction work was still at ground level. Accordingly he pressed for the refund since the construction was nowhere near possibility but all his requests & appeal made to the Ops in this behalf proved an exercise in futility.
6.           In these circumstances the complaint was filed before this Commission for the redressal of the grievances. OPs were noticed and they having not appeared despite service of notice have been ordered to be proceeded ex-parte vide proceedings recorded on 18.07.2017. The complainant has filed his evidence by way of affidavit reiterating the averments made in the complaint.
7.           The matter was listed before us for final hearing on 29.10.2018 when the Counsel for the complainant appeared and advanced his arguments. None appeared on behalf of the OPs. They are ex-parte. We have perused the records of the case and given a careful consideration to the subject matter.
8.           In the first instance the ld. Counsel for the complainant argued that the agreed period of time for handing over possession having elapsed he is no longer interested in the possession and pressed for refund of the amount alongwith interest as this commission may order.
9.           The fact that the complainant had booked a flat with the OPs is undisputed. Payment to the extent of requirement has been made, is also not in dispute. Agreed period for handing over possession also stands over. But the possession is no where near possibility.
10.  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 the OPs in its failure to deliver possession of the flat to the complainant in terms of the allotment letter. It is trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency of service, such deficiencies or omissions as per the law settled by their Lordships in the Apex Court in the matter of Lucknow Development Authority versus M.K. Gupta as reported in (1994) 1 SCC 243 tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act as well.
11. Further the complainant, as argued, cannot be expected to wait indefinitely for the possession. Their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D’lima and ors as reported in II[2018] CPJ 1 (SC) are pleased to hold as under:

 

Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.

 

12. The Hon’ble NCDRC in the matter of Parasvnath Buildwell Pvt. Ltd. and Anr versus Varun Dev, as reported in II[2018] CPJ 212 (NC) is pleased to direct as under:

 

“Flat booked was never constructed. Allottee cannot be made to wait indefinitely for possession. They are entitled for refund. Refund allowed with 12% interest.

 

The Hon’ble NCDRC has taken similar view in the following matters also, namely,

         

Emaar MGF Land Ltd. and Anr versus Amit Puri-II[2015] CPJ 568 (NC)

Parasvnath Exotica Residents Association versus Parasavnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

 

13. Having arrived at the said conclusion we are of the considered opinion that the complaint deserves to be accepted. The core question for consideration now is as to how the complainants are to be compensated for the suffering caused to the complainant at the hands of the OPs for indulging in the unfair trade practice. The provisions of the Act enable a consumer to claim and empower the commission to redress any injustice done to a consumer. The commission is entitled to award compensation for the injustice suffered by him.
14. The Hon’ble NCDRC in the matter of Anil Raj and ors versus Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016 as reported in MANU/CF/0105/2016 is pleased to observe as under:

 

“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 OPs”.

 

15. In Ghaziabad Development Authority v. Balbir Singh-MANU/SC/0282/2004: (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 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.
16. Keeping in view the facts and circumstances of the case and the legal position discussed above, we are of the considered view that possession of the flat not having been handed over within the agreed time, the ends of justice would be met if a direction is issued to the OPs to refund the principal amount, with simple interest at the rate of 10%. This payment be done by the OPs within a period of two months from the date of receipt of this order, failing which the complainant would be at liberty to move this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
17. Ordered accordingly.
18. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

 

(ANIL SRIVASTAVA)                                                                                            (O.P.GUPTA)

              MEMBER                                                                                       MEMBER (JUDICIAL)