IN THE STATE COMMISSION: DELHI

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

Date of Hearing:26.02.2021                                                                                                             

Date of Decision:12.03.2021

Complaint No. 510/2015

IN THE MATTER OF

SARITA GOYAL

W/o Sh. Ravi Prakash Goyal,

R/o 292, Tarun Enclave, Pitampura,

VERSUS

M/S SRS REAL ESTATE LIMITED

A company incorporated under companies Act, 1956

Having its registered office at:-

202, New Delhi House,

Barakhamba Road, Connaught Place,

New Delhi-110001

E-mail:

SRS Tower, 730-732, 7^th Floor,

Near Metro Station Mewla Maharajpur,

G.T. Road, Faridabad-121003,

Haryana

CORPORATE OFFICE AT:-

SRS Multiplex, City Centre,

Sector-12, Faridabad

(NCR Delhi)-121007                                                                                          ....Opposite Party

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. Vidit Gupta, Counsel for the Complainant

                        None for the OPs. They are ex-parte

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by Smt. Sarita Goyal, resident of New Delhi, for short complainant against the SRS Real Estate Limited, hereinafter referred to as OPs, alleging deficiency on the part of the OPs, they having not handed over possession of the flat within the time as agreed to despite payment to the extent of requirement having been made and despite agreed period for completion of the construction of the flat having elapsed and praying for the relief as under:-

It is, therefore, prayed that this Hon’ble Commission may graciously be pleased to direct the OP to render the services as agreed and promised which includes completing the Group Housing Colony, handover the possession and complete the transaction w.r.t. flat bearing no. 702, tower no. B4, 7^th Floor, measuring 1133sq. ft. in Group Housing Colony namely ‘SRS Residency’ at Sector-87, Faridabad to the complainant.

Award the compensation of Rs. 50,00,000/- towards mental stress and agony suffered by the complainant, and interest thereon @ 24% per annum, besides the litigation expenses by allowing the complaint of the complainant, in the interest of justice.

2.             Facts of the case necessary for the adjudication of the complaint are these.
3.             The complainant led by the advertisement and advancement of the OPs with respect to their upcoming project to develop Group Housing Colony, namely, SRS Residency at Sector 87, Faridabad, paid the initial amount of Rs. 93,600/- and Rs. 1,06,400/- on 01.05.2008. Further payment of Rs. 1,05,600/-, Rs. 1,32,048/- was made on 10.09.2008 and 18.09.2009 respectively for the purpose. Finally on 01.07.2011 further payment of Rs. 12,37,325/- was made. This was with respect of the flat bearing no. 702, Tower B4, 7^th Floor, measuring 1133 sq. ft. The OPs while ensuring handing over possession within three years by July 2014, had assured the complainant that they have all the necessary approval in their possession and that they would take timely steps to do things as per schedule.
4.             The complainant thereafter visited the site but no promising picture could be found. The allegation of the complainant is that despite payment as required having been made he could not get the possession of the flat booked by him leading to an inevitable conclusion that the OPs have indulged in an unfair trade practice. The complainant as a consequence thereof and finding no alternative served a legal notice dated 25.04.2015 calling upon the OPs to handed over the possession and complete the transaction with respect to the subject flat. This was followed by several visits to the OPs office but all his efforts done in this behalf for procuring the possession of the flat proved an exercise in futility. Resultantly this complaint was filed before this Commission for the redressal of his grievances.
5.             OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground and on merit stating that the complaint is neither maintainable on facts nor on law. Secondly, this Commission lacks the territorial jurisdiction to hear and to dispose of this complaint. Thirdly she was defaulter in making the payment. Fourth the complainant failed to make the payments towards EDC and IDC as raised by the OPs from time to time. Finally on merit the OPs have maintained that they are not deficient and thus no cause of action subsists as against them. They have accordingly prayed for dismissal of the complaint.
6.             The complainant had thereafter filed rejoinder and evidence in support of his pleadings but the OPs right to file evidence was closed, they having not filed it within the time allowed.
7.             This matter was listed before this Commission for final hearing on 26.02.2021 when the counsel for the complainant appeared and advanced his arguments praying for refund of the deposited amount with interest, the OPs having failed to deliver the possession of the flat booked despite the agreed period having elapsed. The counsel for the OP did not appear. I have perused the records of the case and given a careful consideration to the subject matter.
8.             Short question for adjudication in the subject matter is whether the complainant in the facts and circumstances of the case is entitled for the relief as prayed for.
9.             In the first instance I may advert to the objections raised on behalf of the OPs on the subject. Their objection regarding territorial jurisdiction of this Commission has already been overruled vide proceedings recorded on 13.11.2017, the extracts of which are as under:-

Present: Husband of complainant in person

Ms. Neelam Gupta, Counsel for the OP

            Heard on application of OP regarding territorial jurisdiction.  The plea of the OP is that registered office of OP was shifted from Delhi to Faridabad in 2010, properties located in Faridabad.  On the other hand, complainant has pointed out that part of the payments were made through cheques drawn on HDFC  Bank, Delhi vide receipt copy of which are at page-13 to 16.  Thus, part of cause arisen in Delhi.  Consequently, this Commission has territorial jurisdiction.  Application of the OP is rejected. 

OP to file evidence by affidavit within eight weeks with an advance copy to complainant.

  Re-notify on 09.08.2018.

Sd/-

(O.P. Gupta)

Member (Judicial)

Bench-2

Sd/-

(Anil Srivastava)

Member

Bench-2

10.             The next objection of the OP that the complainant has been defaulter is overruled since the payment has made keeping in view the plan the complainant had opted for. The objection of the OPs that the complainant has not paid the amount towards EDC and IDC is unsustainable since payment towards this heads are payable only after possession. Possession has not been handed over.
11.             In these circumstances the objections of the OPs since not maintainable are sequentially rejected. Now I would deal with the merit of the case.
12.             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 he has suffered at the hands of OPs on account of non-delivery of the allotted flat within the agreed period.
13.             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 my 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.
14.             From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
15.             The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
16.             The Hon’ble NCDRC in yet another matter, in the matter of Universal Infrastructure and Anr versus Binay Pal Singh and Anr. as reported in IV [2019] CPJ 437 (NC), relying on a judgement of the Hon’ble Supreme Court of India in the matter of Kolkata West International City Pvt. Ltd. versus Devasis Rudra, Civil Appeal 3182/2019, decided on 25.03.2019, noting that more than seven years have a already expired held that the complainant cannot be expected to wait indefinitely for possession of the allotted flat and thus entitled for compensation.
17.             The Hon’ble NCDRC in the matter of Satish Kumar Pandey and Anr vs. Unitech as reported in 2015 Law Suit (Co) 998 is pleased to order in the similar circumstances as under:-

1. The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated in its letter dated 27.05.2015;
2. The opposite party shall pay to (i) the original allottees and (ii) to those who acquired the allotment by way of repurchase, within one year of the date of the initial Agreement of their respective flats, compensation in the form of simple interest at the rate of 12% per annum with effect from 36 months from the date of the initial Agreement till the date possession is delivered to them.  The interest payable till 31.08.2015 shall be paid by 10.09.2015, in three equal installments, by the 10^th of each month i.e. by 10^th July, 2015, 10^th August, 2015 and 10^th September, 2015.  Thereafter, compensation in the form of interest, in terms of this order, shall be paid on monthly basis by the 10^th of each succeeding month.
3.  Such of the complainants, who acquired allotment of the flat by way of repurchase more than one year after the date of the initial allotment of their respective flats, shall be paid compensation by way of simple interest at the rate of 12% per annum, with effect from 36 months from the date of repurchase by them, till possession is delivered to them.  They will also be paid compensation at the rate of Rs.5/- per square foot of the super area of their respective flat for the period between 36 months from the date of the initial Buyers Agreement of their respective flats and 36 months from the date of repurchase of the flat by them.
4. The increase in service tax with effect from 01.06.2015 shall be borne by the opposite party, in all these cases.
5. If the opposite party fails to deliver possession by the last date stipulated in its letter dated 27.05.2015, it shall pay compensation to all the complainants in the form of simple interest at the rate of 18% per annum, for each day there is delay, beyond the date stipulated in the said letter dated 27.05.2015, in delivering possession to the complainants.
6. The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.

18.           Having regard to the legal position explained and keeping in view the facts and circumstances of the case I am of the considered view that the ends of justice would be met if the complaint is disposed with two folded directions to the OP, namely, the OPs shall have the unfinished work in the flat finished and hand over the possession. Besides they would pay to the complainants compensation for the delayed period simple interest at the rate of 6% per annum with effect from the date the complainant was to be delivered the possession of the apartment/flat till date. Additionally OPs are liable to pay Rs. 30,000/- as litigation charges. This be paid to the complainant within two months from the date of receipt of certified copy of the order.
19.             Ordered accordingly.
20.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

12.03.2021

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