RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 130 OF 2013
Vivek Prakash
S/o Jai Prakash,
R/o Village Suthiyana,
Post Office – Kulesara,
Distt. Gautam Budhh Nagar
....Complainant
Versus
Unitech Limited
Real Estate Division (Marketing)
Ground Floor, Signature Towers,
South City, NH-8,
Gurgaon -122001, Haryana
....Opposite Party
BEFORE:
HON’BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
HON’BLE MRS. BAL KUMARI, MEMBER
For the Complainant : Sri Ajai Krishna, Advocate.
For the Opposite Party : Sri Mohit Johari, Advocate.
Dated : 14-01-2015
JUDGMENT
PER MR.JUSTICE VIRENDRA SINGH, PRESIDENT
Complaint preferred this complaint against the opposite party, wherein it is alleged that the opposite party launched a scheme for allotment of apartments in the name & style, Unitech Habitat, at Plot no.9 , Sector Pi-II, Alistronia Estate, Greater Noida, District Gautam Budhh Nagar for which the Complainant contacted the concerned authorized person on behalf of the opposite party, who gave assurance that above scheme will be completed within 36 months positively and possession will be delivered to the allottees in the scheme within the stipulated period of 36 months. On the above assurance and representation of the opposite party, Unitech Limited, the complainant booked an apartment of 1730 Sq ft, on 30 June 2006. Opposite party, Unitech Limited, issued an allotment letter number no. UL:Red HBTN 17686 dated 11.09.2006; in favor of the Complainant. The complainant paid a sum of 58,06,462/- by 28.02.2009, to the opposite party as per the payment plan. The opposite party have not
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completed the construction of the apartments and gone against the ethics and used the money in other commercial projects. There is no reasonable excuse on the part of the opposite party for not delivering the possession to the complainant within the stipulated period of 36 months. The opposite party has stopped the construction of the scheme and adopted unfair trade practice to harass the consumers which is deficiency in service. There has been inordinate delay of more than 8 years. Complainant filed this present complaint for following prayers:
(a) That the Opposite Party, Unitech Limited be directed to refund the total amount paid by the complainant with compounded quarterly interest at the rate of 18% per annum from the respective date of payments made by the complainant till the actual date of refund.
(b) That the Opposite Party be directed to pay total rental amount Rs 13,15,000 paid by the Complainant due to non-delivery of possession of the above allotted flat within time to the Complainant till date.
(c) That the Opposite Party be directed to pay Rs.53,000 monthly rent to the complainant till the date of refund of the total amount.
(d) That the Opposite Party be directed to pay a sum of Rs 10,00,000/- towards damages for the physical and mental torture, discomfort, undue hardships and agony caused to the Complainant as a result of the omissions on the part of the Opposite Party.
(e) That the Opposite Party be directed to pay a cost of Rs 1,00,000/- towards the legal expense of the Complainant.
(f) That any further relief which may be deemed fit and appropriate may also kindly be passed in favour of the Complainant.
The complaint was admitted by this commission on 10.09.2013 and notice to the opposite party was issued on 20.09.2013 fixing 08.11.2013. Opposite party, Unitech Limited, was duly served but Opposite party, Unitech Limited, or its agent did not put appearance on 8.11.2013, and case was adjourned fixing 31.01.2014 for final hearing. On 31.01.2014, learned counsel of the opposite party put in appearance before this commission but neither written statement nor any evidence was filed and merely memo of Vakalatnama was filed on behalf of the opposite party. This Commission passed a specific order on 31.01.2014 directing both the parties to file their evidence as well as written arguments. The opposite party, Unitech
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Limited, was directed to file written statement also and the case was fixed for final hearing on 11.03.2014. Opposite party, Unitech Limited, did not file its written version, evidence and written arguments on 11.03.2014 too and the case was again adjourned for final hearing for 14.07.2014. The complainant filed his evidence and written arguments on 14.07.2014 and also moved an application on the ground that there is statutory provision u/s 13 of the Consumer Protection Act, 1986, that written version must be filed within 30 + 15 days from the date of service of notice and as the opposite party has not filed its written version till date, therefore, the right of the Opposite Party to file written version be forfeited in view of the Hon’ble apex court judgment by three judges bench reported in the case of Dr. J.J. Merchant and Ors v. Shrinath Chaturvedi III (2002) C.P.J. 8 Supreme Court.
The Complainant filed following evidence on his part by way of affidavits:
(i) Allotment Letter of apartment no. 003, floor G, HBTN-Tower 2, Unitech Habitat.
(ii) Authorisation Letter of Agent of M/s Shubham Associate issued by the Opposite Party.
(iii) Payment Plan issued by the Opposite Party to the Complainant.
(iv) Demand letters issued by the Opposite Party to the complainant for making the payments as per Payment Plan.
(v) Payments receipts of the amount deposited by the complainant to the Opposite Party.
(vi) Copy of ledger of payments issued by the Opposite Party to the Complainant.
(vii) General terms and conditions of registration of allotment of apartment in ‘Unitech Habitat’.
(viii) Leave and Licence Agreement of rental accommodation taken on rent by the complainant.
Ld counsel for the complainant took recourse too on of the law laid down in following judgmnets by the Hon’ble Apex court and Hon’ble National Consumer Dispute Redressal commission, New Delhi.
- (1994) 1 Supreme Court Cases 243- Lucknow Development Authority v. MK Gupta.
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- (2004) 5 Supreme Court Cases 65 Ghaziabad Development Authority v. Balbir Singh.
- (2004) 5 Supreme Court Cases 87 Haryana Urban Development Authority v. Rajnish Chander Sharda. (Bench of three judges)
- (2005) 9 Supreme Court Cases 449 Haryana Urban Development Authority v. Darsh Kumar & Ors.
- II (2011) CPJ 82 (NC) National Consumer Dispute Redressal Commission, New Delhi Skyline Construction and Housing Pvt Ltd v. Kumar Selvaraj & Amr.
- National Consumer Dispute Redressal Commission, New Delhi, Consumer Complaint no. 144/200 of 2011 Subhash Chander Mahajan v. Parsvnath Developers Ltd.
- National Consumer Dispute Redressal Commission, New Delhi, Consumer Complaint no. 344 of 2012, Sanjay Goel v. Unitech Ltd. & Ors
Opposite party did not file any written objection on the application moved by the complainant for forfeiting the right of the opposite party to file written version nor filed any written version, evidence or any written submissions till 14.07.2014. The case remained fixed for further more dates i.e. 31.07.2014, 04.08.2014 and 21.08.2014 there being adjourned by this commission. Opposite party did not file written version, evidence or any written submissions even on the abovementioned dates too. On the date fixed 29.08.2014, the opposite party, filed merely its written statement with no objection on the application of complainant for forfeiting the right of the O.P. for filing any written statement.
We have heard both the parties and perused the record on the application dated 14.07.2014 moved and pressed by the complainant for forfeiting the right of the opposite party to file written statement. The complainant specifically referred section 13(2) (a) and (b)(ii)of Consumer Protection Act, 1986:- which reads as follows:-
Section 13(2)(a):-
“refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum ”
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Section 13(2)(b)(ii):-
“on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the forum”
In the judgment of the Hon’ble Apex Court Dr. J J Merchant and Others V. Shrinath Chaturvedi which has been referred by the complainant, the Hon’ble Apex Court has held that the National Commission or the State Commission is empowered to follow the procedure mentioned in section 13 of The Consumer Protection Act, 1986. Hon’ble Apex court has further held that there is legislative mandate to dispose of the complaints as far as possible within prescribed period. It is also held that the opposite party has to submit its version within 30 days from the date of the receipt of the complaint by him and the opportunity for filing written version can be given at the most further 15 days for some unavoidable reasons. Thus The Hon’ble Apex Court has given specific verdict that time limit prescribed for filing written version and disposal of complaints be strictly adhered.
Hon’ble National Consumer Dispute Redressal Commission, New Delhi has held in Consumer Complaint no. 344 of 2012, Sanjay Goel v. Unitech Ltd. & Ors that where written version could not be filed within the prescribed period, the right of the opposite party to file written version is liable to be forfeited.
Ld counsel for complainant specifically mentioned that in the complaint in hand before us the opposite party was well aware that if the written version is not filed within the prescribed period the right for filing written version will be forfeited as the application has already been moved by the complainant. Even then the Opposite Party has deliberately not filed its written version for the purpose of delaying the process of hearing the case to harass the Complainant.
The learned counsel for the opposite party argued that if the opportunity of the opposite party to file written version is forfeited then there will be no scope for the opposite party to defend its case. Ld counsel for the opposite party further argued that all the provisions are not being strictly followed by the Consumer Forums Or Commissions as per The Consumer Protection Act,1986 and since written version has been filed on 29.08.2014, therefore, no question arises to forfeit the right of the opposite
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party.
In the cases of Dr. J J Merchant and others V. Shrinath Chaturvedi and Sanjay Goel V. Unitech and others, the Hon’ble Apex Court and The Hon’ble National Commission has held that the opposite party has to submit its written version within 30 days from the date of the receipt of the complaint and forums/commissions under Consumer Protection Act could give at the most further 15 days more to Opposite Party under some unavoidable reasons to file its version. Here in this case before us the opposite party was served through the process issued on 20.09.2013 fixing 08.11.2013 and on the date i.e 29.08.2014, the date on which the written statement has been filed by the opposite party, at least, about nine months have elapsed since the date of service of notice on the opposite party, therefore, we are of this view that in the light of the law laid down in the aforesaid authorities of Hon’ble Apex Court and Hon’ble National Commission, the arguments raised on behalf of the opposite party have no force. The WS filed with such delay specially when the counsel for opposite party had already filed vakalatnama on 31-01-2014 but no written version was filed and no prayer for extension for filing written version was sought, nor this commission was expected to grant more time in the light of the law as aforesaid and specially in the case where the complainant has opposed thereby filing an application in this regard opposing the filing of written statement of opposite party and against which even no objection has been filed by the opposite party, therefore, the application dated 14.07.2014 moved by the complainant is hereby found worth allowed and the right of the opposite party to file written version is hereby held to have stood forfeited.
As per arguments of Ld counsel for the complainant referring to the evidence filed by the complainant, we have found that complainant has filed his evidence through affidavits stating therein that he has booked apartment with the opposite party and it was agreed and represented by the opposite party that apartment will be completed within 36 months but now more than 8 years have passed, opposite party has not completed the apartment and possession has not been given to the complainant till date while the complainant has made all payments as per payment plan and payment receipts have been filed by the complainant. The complainant has
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also filed a copy of ledger annexing with the affidavit which was issued by the opposite party to the complainant. Thus it is amply proved that complainant has made all payments to the opposite party but the apartment has not been completed and delivered to the complainant and delay has been caused with no excuse by the opposite party. Hon’ble Apex Court and Hon’ble National consumer Dispute Redressal Commission have held in various cases that if the possession of the flat is not delivered within the stipulated period, it amounts denial and deficiency of service to the consumer.
Hon’ble Apex Court and Hon’ble National consumer Dispute Redressal Commission have held in various cases that if the possession of the flat is not delivered within the stipulated period, it amounts denial and deficiency of service to the consumer and Consumer Foras have the power not only to refund of the money of the consumers with exemplary interest rather to award compensation too for loss or damage suffered by the consumers and also for injustice, harassment, agony suffered by consumers. It is also argued that Hon’ble Apex court has held in so many cases that Forums/Commissions has statutory obligation to award compensation for misfeasance and for the loss suffered by the consumer at the hands of authorities/developers due to malafide or capricious or oppressive acts. The consumer must not be made to run from pillar to post. Loss could be determined on the basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has to stay in rented premises then on the basis of rent actually paid by him. The case of the complainant before us is almost on similar footings as has been the case of a complainant in complaint number 144 of 2011 Subhash Mahajan V. Parsvnath Developers and in complaint number 200 of 2011 Abhishek Dwiwedi V. Parsvnath Developers Limited wherein too the above complainants/ consumers had booked their flats at Greater Noida in the year 2007 and full amount of allotment was paid to the opposite party and it was agreed that flat would be completed and handed over within a period of 36 months failing which developers would pay to the complainant Rs 5/- per sq feet per month.
In the case before us too, the complainant had booked the flat in the year 2006, which is one year prior to the above consumers at Greater
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Noida, Gautam Buddh Nagar and he had also made entire payment to the Opposite party. He was also assured that flat would be completed within a period of 36 months. Here is also a penal clause in the case of the complainant that if the opposite party is unable to complete the construction and deliver the possession within stipulated period of 36 months then opposite party would pay to the complainant Rs 5 per sq feet per month for the delayed period of the possession and in the case of the complainant too construction of the flats is also stopped by the opposite party, Unitech Limited, in the year of 2012 in the same manner as in the above complaints of Subhash Chandra Mahajan And Abhishek Dwiwedi and the complainant is also compelled to live in a rented accommodation as complainant Abhishek Dwiwedi was residing in that case. Ld counsel for the complainant compared the cases of above consumers Subhash Mahajan And Abhishek Dwiwedi with the case of the complainant and argued that as the case of the complainant is also similar to the cases of Subhash Chandra Mahajan And Abhishek Dwiwedi, therefore, the complainant is also entitled to get the same reliefs as have been granted in the cases of Subhash Chandra Mahajan And Abhishek Dwiwedi. There is force in the arguments of the Ld counsel for the complainant and the case of the complainant is almost similar and on same footing as the cases of Subhash Chandra Mahajan and others, therefore, this Commission have no hesitation to hold that the prayer made by the complainant is justified up to some extent.
Recently, by means of order dated 12.09.2014 in civil appeal number (S) of 2014 (D No. 25053/2014) Parsvnath Developers Ltd. V. Abhishek Dwivedi with civil appeal number of 2014 (D No. 25053/2014) the Hon’ble Apex court has dismissed the above appeals filed by the Parsvnath Developers Limited and thus the order passed by the National Consumer Dispute Redressal Commission, New Delhi, delivered on 05.05.2014 in Consumer Complaint no. 144 of 2011 Subhash Chandra Mahajan and others V. Parsvnath Developers Limited and complaint no. 200 of 2011 Abhishek Kumar Dwiwedi V. Parsvnath Developers Limited, has become final.
We have thoroughly examined the facts as well as evidence of this case filed by the complainant Sri Vivek Prakash and perused the judgments rendered in complaint cases of Sri Subhash Chandra and Abhishek
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Dwiwedi and found that there is almost similarity on facts, evidence and on legal aspect also, therefore, opposite party may be directed to pay a sum of Rs 58,06,462/- along with interest @18% p.a from the date of deposit till its realization to the complainant. The complainant must also be granted compensation in the sum of Rs 5,00,000/-(five Lacs) as damages for the physical and mental torture, harassment, discomfort, undue hardship and agony caused to the complainant, payable within a period of 90 days, and If the payments are not made within 90 days the interest payable on total sum from the date of expiry of 90 days will be @24% p.a, till its realization. This Commission must also grant a sum of Rs 1,00,000/- (One lac) to the complainant towards cost of this case. Hence the complaint is worth allowed accordingly.
ORDER
Opposite party is hereby directed to pay a sum of Rs 58,06,462/- along with interest @18% p.a from the date of deposit till its realization to the complainant. The complainant is further granted compensation in the sum of Rs 5,00,000/-(five Lacs) as damages for the physical and mental torture, harassment, discomfort, undue hardship and agony caused to the complainant, payable by the O.P. within a period of 90 days, and If the payments are not made within 90 days the interest payable on total sum from the date of expiry of 90 days will be @24% p.a, till its realization. A sum of Rs 25000/- is further allowed to the complainant towards cost of this case to be paid by the opposite party.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
( SMT. BAL KUMARI )
MEMBER
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