Delhi

StateCommission

CC/1038/2016

GAGAN VACHHER & ANR. - Complainant(s)

Versus

UNITECH LTD. & ANR. - Opp.Party(s)

02 Aug 2018

ORDER

 

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 26.07.2018

                                                                                                              

                                                                   Date of decision:02.08.2018

 

 

Complaint No. 1038/2016

 

 

IN THE MATTER OF:

 

Sh. Gagan Vachher

S/o Col. A.L. Vachher (RETD.)

R/o B-17, Ground Floor,

Backside,

Greater Kailash Enclave-II,

New Delhi-110048

 

Smt. Sumita Vachher

W/o Mr. Gagan Vachher

R/o B-17, Ground Floor,

Backside,

Greater Kailash Enclave-II,

New Delhi-110048                                                         ….Complainants                                                                                        

 

VERSUS

 

            

M/s Unitech Ltd.

A Company Registered Under the provisions

Of the companies Act, 1956

 

Having its registered office at

6, Community Centre,

New Delhi-110017

Through its Chairman/Director

Mr. Ramesh Chandra….Opposite Party no.1

 

Mr. Ramesh Chandra

Director

M/s Unitech Ltd.

6, Community Centre,

New Delhi-110017….Opposite Party no.2

 

Mr. Ajay Chandra

Director

M/s Unitech Ltd.

6, Community Centre,

New Delhi-110017….Opposite Party no.3

 

Mr. Sanjay Chandra

Director

M/s Unitech Ltd.

6, Community Centre,

New Delhi-110017….Opposite Party no.4

 

 

 

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:       The father of the complainant No.1, Col. A.L. Vachher (RETD.)

And Complainant No.2 Present in person.

Sh. Varun Katyal, Counsel for the OPs

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

 

 

JUDGEMENT

1.           Sh. Gagan Vachher and Smt. Sumita Vachher, Husband and wife, resident of New Delhi, have filed this complaint before this Commission, for short complainants, under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s Unitech Ltd., having their registered office at New Delhi, alleging deficiency of service on the part OPs in not handing over possession of the flat booked by them despite sufficient and agreed time having been elapsed and despite the amount as per agreement having been paid, nor refunding the amount deposited pressed for by them due to the inability of the OPs in not meeting their obligation regarding delivering the possession of the said flat and praying for the relief as under:

 

1. Pass appropriate order/ direction to the Ops, jointly and severally, to refund and/ or pay Rs. 46,51,479.00/-  paid by the complainants to the OPs for booking of a unit flat vide provisional Allotment letter dated 28.09.2012 executed between the OPs and the complainant.
2. Pass appropriate order/ direction to the OPs, jointly and severally, to pay an interest @ 24% p.a. from the date of deposit to the date of payment.
3. Pass appropriate order/ direction to the OPs, jointly and serverally, to pay compensation @ Rs. 3,00,000/- lacs to the complainant for causing mental harassment, agony, damages, costs.
4. Pass any such other and further directions/ orders which this Hon’ble Forum may deem fit, just and proper in the facts and circumstances of the present case. 

 

2.                 Facts of the case necessary for the adjudication of the complaint are these.

 

3.           On the advancement and advertisement of the Ops the complainants had agreed to buy a residential unit no 0203, 2^nd Tower, 0A4 Block-00A at Exquisite, Sector 117, Noida, Uttar Pradesh of the size of 216.92 sq. mtr. for a total sale consideration of Rs. 98,79,442/- and for this purpose initial payment of Rs. 3,35,298/- was paid on 22.09.2013. Further payment from time to time was paid by the complainants to the OPs and by 02.01.213 an amount of Rs. 46,51,479/- was paid.
4.           An allotment letter pursuant to the application of the complainants was issued indicating, among others, the payments to be made from time to time and the date by which possession of the flat would be delivered. The salient features of the terms and conditions are indicated below:

 

1. Payment schedule
2. : In pursuance of the allotment of the said Apartment, the Allottee(s) shall pay a sum of Rs. 98,79,442/- to the Developer towards consideration of the Apartment (hereinafter referred to as the “consideration”). The said consideration is inclusive of Basic Price Preferential Location Charges, if any, Lease Rent and Charges for use of Car Parking space.

Registration Amount: Out of the Consideration as under ‘A’ above, the Allottee has already paid an amount of Rs. 708061/- as Registration Amount to the Developer, the receipt whereof the Developer hereby admits and acknowledge.

Balance Consideration: The Allottee shall pay the balance amount of the consideration in accordance with the Payment Plan. In the event Allottee fails to pay the balance consideration or in the event of any delay in payment of any instalment and/or other charges, in accordance with the payment Plan, the Allottee(s) shall be liable to pay interest calculated from the due date of outstanding amount @ 18% per annum compounded quarterly on the outstanding payment for the period of delay.

 

2. Possession of Apartment
3. : The possession of apartment is expected to be delivered by the Developer within 36 months with a grace period of additional 6 months hereof subject to Force Majeure circumstances or the circumstances beyond the control of the Developer 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.

In the event of any default or negligence attributable to the allottee in fulfilment of terms and conditions contained herein, without prejudice to the other rights of the Developer as mentioned herein, the Developer shall be entitled to that extent an extension in the delivery time of possession of the Apartment as stipulated in 5A(i) above.

 

5.           From the reading of the terms and conditions of the allotment letter, the possession of the flat booked by the complainants was to be handed over in 36 months from 28.09.2012, the date on which the allotment letter was issued. But according to the complainants by then construction work had not commenced and in these circumstances demand for the refund was proceed. The OPs instead of refunding had offered them an alternate flat in another project at Gurgaon.
6.           This offer of the OPs was not acceptable to the complainants for two reasons, namely, the construction in that project was also not complete and secondly they had lost all confidence in the assurances of the OPs and accordingly they had pressed for the refund of their amount deposited till then. OPs did not accede to their request and consequently the complainants have filed this complaint for the redressal of their grievances.
7.           OPs were noticed but they having not filed their written statement within the period permissible under the statute their right to file written statement was closed vide proceedings recorded on 12.09.2017. The complainants had filed their evidence reiterating the averments made in the complaint. The matter was listed before us for final hearing on 26.07.2018 when the father of the complainant no.1 alongwith complainant no. 2 were present. Sh. Varun Katyal Counsel for the OP was present. Both of them have advanced their arguments. We have perused the records and given a careful consideration to the subject matter.
8.           At the very outset the complainants vehemently argued for the refund of the amount deposited since OPs have been deficient in attending to their obligation as agreed to and as contained in the allotment referred to above. The OPs are not able to deliver the possession. Written statement not having been filed, the averments made by the complainants may have to be accepted since remained uncontroverted.
9.           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 timeframe 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 deficiencies 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.
10. 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 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 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.
12. 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. This be done within a period of two months filing which the complainant would be free to more this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
13. Ordered accordingly.
14. 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)

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