Delhi

StateCommission

CC/272/2016

MRS. RITU DUGGAL & ANR. - Complainant(s)

Versus

UNITECH RELIABLE PROJECTS PVT. LTD. - Opp.Party(s)

DR. HARISH UPPAL

09 Apr 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 09.04.2018

                                                                                                              

                                                                   Date of decision:11.04.2018

 

Complaint No.272/2016

 

 

IN THE MATTER OF:

 

Smt. Ritu Duggal,

10 A, Chapel Road, Hastings,

Kolkatta-700022

 

Smt. Saloni Duggal Shrestha,

Dufaux-Strasse 60,

8152 Glattpark (Opfikon)

Switzerland                                                          ….Complainants

                                                                                                                  

VERSUS

 

          Unitech Reliable Projects Pvt. Ltd.,

          6, Community Centre,

          Saket, New Delhi-110017                                     ....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:       Dr. Harish Uppal, Counsel for the complainants alongwith Sh. T. Prasad, Counsel

                   Sh. Ankur Setia, Counsel for the opposite parties

                                     

 

PER: SHRI ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           In pursuance of the orders dated 01.02.2016 passed by the Hon’ble NCDRC in the matter of Smt. Ritu Duggal and Smt. Saloni Duggal Shrestha, holding that they (NCDRC) have no pecuniary jurisdiction to try this case and dismissing the complaint, granting liberty to the complainants to approach this Commission for the redressal of the grievances within the parameters of law, Smt. Ritu Duggal and Smt. Saloni Duggal Shrestha, have filed this complaint, for short complainants, before us under Section 17 of the Consumer Protection Act 1986 (the Act) against the Unitech Reliable Projects Pvt. Ltd., hereinafter referred to as opposite parties, praying for the relief as under:

 

1. The respondent/OP be directed to pay back Rs.46,96,264/- paid to the OP till 2008 (that is total amount payable till that date) along with interest @ 18% p.a. on Rs.46,96,264/- for 8-1/6 years as compensation; along with the damages and harassment and cost of the complainants as may be quantified by the Hon’ble Commission in the facts and circumstances of the case.
2. Costs of this complaint be awarded to complainant.

 

2.           Facts of the case, necessary for the adjudication of the complaint are these.
3.           The complainants lured by the advertisements of the OP had booked an apartment with them in their project “Unitech Verve” in Greater Noida, Gautam Budh Nagar (UP) on 23.08.2007 by paying the amount as agreed to and in response thereto the OPs had allotted on 15.09.2007 apartment no 903, on 9^th Floor of Tower 01, of 150.41 sq. Mr. (1619 Sq.ft), Plot No 11, Sector P-II Greater Noida, Distt Gautam Budh Nagar, Uttar Pradesh. Total sale consideration was Rs. 52,28,301/-. Total amount payable till flats are ready for possession is Rs. 46,76,464/- leaving remaining amount of Rs. 5,51,8371/- to be paid at the time of possession Allotment letter was issued on 09.10.2007.
4.           In terms of Clause 4 a of the allotment letter the possession of the flat was to be handed over within 36 months. Relevant clause on the subject is reproduced below:

 

4.a Possession:

That the possession of Apartment is proposed to be delivered by the Developer to the Allottee 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 as provided herein have been paid to the Developer. It is, however, understood between the parties that various Towers comprised in the Complex shall be ready and completed in phases and handed over, accordingly.

 

5.           The complainants had made the payment as agreed to within time frame. But the possession of the flat was not delivered despite the assurance of the OP. the complainant has alleged that on their visit they found that the construction of the project is no where near completion. Accordingly this complaint has been filed for the redressal of the grievances.
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 final hearing on 09.04.2018 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.           In the first blush, relying on the judgment dated 07.10.2016, passed by the Hon’ble NCDRC in the matter of Amrish Shukla Versus Ferrous Infrastructure Pvt. Ltd. as reported in I (2017) CPJ 1 (NC) holding as under:

 

Issue No: (iii)

1. The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a Consumer Forum.

Issue No.(IV)

2. In a complaint instituted under Section 12 (1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers. ,

  

we felt that the State Commission lacks the pecuniary jurisdiction. The complaint was originally dismissed by the Hon’ble NCDRC on 01.02.2016 since lacking pecuniary jurisdiction with liberty to file before the State Commission of the redressal of the grievances, when the dictum contained in Ambrish Shukla was not available. But while adjudicating this complaint we have the advantage of the said dictum and applying the ratio of that judgment to the facts of the case and the prayer contained, we would be lacking the pecuniary jurisdiction since total sale consideration plus compensation claimed in the given case exceeds Rs. One Crore.

9.           At this stage the ld. Counsel for the complainant submitted that he restricts his prayer regarding compensation to 10% interest only in which case this Commission would not be incapable of hearing this case under Section 17 (1) of the Act, since total sale consideration and the compensation with 10% interest put together would not exceed Rs One Crore.
10. Accordingly we proceed to adjudicate this complaint on merit of the case. 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 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.
11. 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.
12. 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.
13. 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.
14. 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)