Delhi

StateCommission

CC/190/2016

RIMLU GYANI - Complainant(s)

Versus

EMAAR MGF LAND LTD. - Opp.Party(s)

BHARAT DEEPAK

29 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 29.08.2018

                                                                                                              

                                                                   Date of decision:06.09.2018

 

 

Complaint No. 190/2016

 

IN THE MATTER OF:

 

Mrs. Rimlu Gyani,

W/o Mr. D.P.S. Gyani

R/o EG-2/1, Garden Estate,

Gurgaon-122002(Haryana)                                                ….Complainant

 

VERSUS

 

 

Emaar MGF Land Limited

ECE House,

28, Kasturba Gandhi Marg,

New Delhi-110001                                                         ….Opposite Parties

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER (GENERAL)

 

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. Bharat Deepak, Counsel for the Complainant

                   Sh. Sunil Kumar, Counsel for the OPs

                  

PER:           ANIL SRIVASTAVA, MEMBER (G)

 

JUDGEMENT

1.           This complaint has been filed by Smt. Rimlu Gyani, resident of Gurgaon for short complainant, before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) against Emaar MGF Land Ltd., hereinafter referred to as OPs, alleging, due to non handing over of the possession of flat booked by the complainant, deficiency of service and praying for the relief as under:

 

1. The OP may kindly be ordered and directed to pay and refund a sum of Rs. 31,65,130/- i.e. Rs. 15,71,325/- as the principal amount, Rs. 4,02,500/- towards charges as per agreement, Rs. 5,00,000/- as damages/compensation Rs. 6,47,305/- as interest up to 12.02.2016 and Rs. 44,000/- as notice and remainder notice fees, to the complainant;
2. Interest @ 18% p.a. may kindly be allowed on the sum of Rs. 15,71,325/- with effect from 13.02.2016 till the date of actual payment;
3. Cost of these proceedings may also be allowed in favour of the complainant and against the OP and
4. Any other and further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the matter and in the interest of justice may also be passed.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant having been lured by the advertisement of the OPs of their new upcoming residential housing complex namely, “The Views” in Sector 105, Mohali Hills, Mohali, had booked a Unit No: TVM B 3-F-05-501 in the said project and paid the booking amount of Rs. 7,00,000/- on 20.02.2007. As a consequence thereof the complainant was allotted a Customer Code Number TVM/398 Sales Order No: 601167 and provisionally allotted the unit she had booked. Total sale consideration in this behalf is Rs. 55,80,250/-. Execution of Apartment Buyer’s Agreement dated 04.02.2008 followed thereafter. Clause 21.1 of the said agreement posits, inter alia, that the possession of the apartment applied for would be handed over within 36 months from the date of allotment with a grace of 90 days, which means on or before 03.05.2011. Clause 23 deals with the compensation to be awarded in the event of delay in handing over the possession.
4.           The OPs however failed to hand over the possession within the agreed period of time despite payment having been made as per the payment schedule. The complainant kept making requests to the OPs for the time by which the possession would be handed over but except for a letter dated 21.08.2013 which was almost after five and half years, intimating that the possession would be handed over at the earliest but no fixed time was indicated no other communication was sent. Since the Op failed, neglected and avoided to inform the complainant as to when it will commence and complete the construction of Tower-B in which the complainant has booked the flat/unit the complainant was left with no other option but to seek refund of the money along with interest etc. as per agreed terms. However, in spite of its own fault, defect, default, deficiency, imperfection, inadequacy and shortcoming etc., the OP has avoided to refund the amount admittedly received accepted and acknowledged alongwith interest.
5.           In these circumstances the complaint has been filed before this Commission for the redressal of the grievances.
6.           OPs were noticed and responding to the notice they have filed their written statement resisting the complaint on various grounds but for the disposal of this complaint the defence that the OPs have already refunded the principal amount is taken into consideration.
7.           The matter was listed before us for final hearing on 29.08.2018 when the counsel from both sides appeared and advanced their arguments. We have perused the records of the case and carefully considered the contention involved in this Complaint.
8.           At the very outset the ld. Counsel for the complainant while admitting that the principal amount has been refunded, argued for the damages and interest, the OPs having kept their money for six years for no gainful purpose. The ld. Counsel for the OPs argued that the complainant having accepted the refund is not entitled for interest.
9.           The point for consideration is whether the complainant in the facts and circumstances of the case is entitled for damages and interest as prayed for.
10.  It is an undisputed fact that the OPs had kept the amount deposited by the complainant for a period more than five years. Surely they would have earned interest out of it. Besides the OPs have failed to complete the project within the time as agreed to. The complainant on the other hand has not breached any condition of agreement or found wanting in meeting the obligation cast on him as per agreement.
11. Having bestowed our consideration to the facts at hand, we are of the opinion that the complaint deserves to be accepted. Having arrived at the said conclusion, the point for consideration is as to how the complainant is to be compensated for the loss of interest and mental agony she suffered at the hands of the OPs.
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 pay simple interest at the rate of 9% on the amount deposited by the complainant and for the period it was retained by the OPs.
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)