Delhi

StateCommission

CC/1167/2015

MRS. SAHANA KAPOOR & ANR. - Complainant(s)

Versus

M/S UNITECH LTD. - Opp.Party(s)

PULKIT GUPTA

09 Jan 2018

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :09.01.2018

Date of Decision :11.01.2018

Complaint No.1167/2015

IN THE MATTER OF:

 

1. Mrs. Sahana Chatterjee Kapoor,

W/o. Shri Nilabh Kapoor,

R/o. B-22, Trinity Towers,

Phase-V, D.L.F. Gurgaon,

Haryana-122002.                                                               

 

2. Mr. Nilabh Kapoor,

S/o. Shri Rajeshwar Kumar Kapoor,

R/o. B-22, Trinity Towers,

Phase-V, D.L.F. Gurgaon,

Haryana-122002.

 

Both Presently Residing at :

 

C-506 Panchtantra-2,

Panch Marg,

Off Yari Road,

Versova, Andheri (West),

Mumbai-400061.                                                                                         …….Complainants

 

                                                                        Versus

 

M/s. Unitech Ltd.,

Having its Registered Office at :-

6 Community Centre, Saket,

New Delhi-110017.

 

And having its Branch Office at :-

Unitech House, L-Block,

South City-1, Gurgaon-122001,

Haryana.                                                                                                       …..Opposite Party

 

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:           Shri  Pulkit Gupta, Counsel for the complainant.

                        Shri Ankur Setia, counsel for the opposite party.

PER  : SHRI ANIL SRIVASTAVA, MEMBER

JUDGEMENT

 

          Smt. Sahana Chatterjee Kapoor and Shri Nilabh Kapoor, resident of Gurgaon, have filed a complaint before this Commission, for short complainant, under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s. Unitech, hereinafter referred to as OPs, alleging deficiency on the part of the OP in not handing over possession of the flat booked by them in September, 2012, on the understanding that the possession thereof would be handed within three years from the date of agreement which did not see the light of the day, and praying for the relief as under:-

a)      Direct the OP to pay a sum of Rs.26,51,548/- alongwith interest @18% from the date that the amount(s) respectively were so paid by the complainants till the realization of the said amount.

 

b)      Direct the OP to pay a sum of Rs.7,52,500/- on account of damages suffered by the complainant herein due to the differential cost increment of the basic price on account of the acts of omissions and commissions of the OPs;

 

c)      Direct the OP to pay an appropriate sum on account of mental torture and agony suffered by the complainants herein due to the acts omissions and commissions of the OP apart from the cost of litigation;

 

d)      Pass any other or such further orders as this Hon’ble Commission may deem fit and proper to pass having regard to the facts and circumstances of the present case.

 

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

The complainant intending to purchase a house of their own approached the OP for booking a flat in September 2012 in their project known as “CRESTVIEW” apartments, Wildflower Counting in Sector-70, Gurgaon, Haryana and agreed to purchase an apartment within the said complex and preferred an application in this behalf on 02.09.2012. Total sale consideration was Rs.81,69,768/- and out of the total sale consideration an amount of Rs.7,63,884/- was paid which was duly acknowledged by the OPs.

Apartment allotment agreement was thereafter executed between the complainants and the OPs on 06.10.2012. As per the terms of the agreement an amount of Rs.9,20,936/- payable before 01.12.2012 and same amount  payable before 21.12.2012, were duly paid and OPs have acknowledged.

Relevant clauses of the aforesaid agreement, necessary to be considered for the adjudication of this complaint are indicated below:-

4.a.   Delivery of possession:

(i)      Subject to the apartment allottee(s) complying with various terms and conditions of this agreement and other requirements as indicated by the developer, the developer process to offer possession of the apartment within a period of 36 months from the date of signing of this agreement and upon execution and registration  of conveyance deed in favour of the apartment allottee(s) . It is understood that the developer shall be entitled to 3 (three) months grace period in the said time frame for offer of possession of the apartment. It is further understood by the apartment allottee that the possession of various Towers/ blocks comprised in the complex shall be ready and completed by the developer in phases and handed over to the allottee(s) of that Tower/ Block accordingly.

 

(ii)     It is agreed that the developer shall also be entitled to reasonable extension in time stipulated for delivery of possession of the apartment because of any default or negligence attributable to the apartment allottee(s) in fulfillment of obligations under this agreement.

 

4.e.   Inability to offer apartment:

If for any reason the developer is not in a position to offer the allotted apartment, as agreed herein, the developer will offer the apartment allottee(s) an alternative property in any complex developed, under development or proposed to be developed in the surround area/ projects and if no alternate property is available the developer will be amount paid by the apartment allottee(s) in full with interest @12% per annum from the date of payment(s) by the apartment allottee(s) without any further liability to pay any damages, compensation or other charges.

          The project of the OP was no where near completion inasmuch as within the prescribed period of 36 months, i.e. 06.10.2015, a single brick was  not laid. As a result of the OPs complete failure in complying with the terms of the agreement dated 06.10.2012 coupled with the absolute fruitlessness of the visits made by the complainants herein to the concerned office of the OP, a state of affairs were created which led to the complete and total breakdown of trust and faith on the part of the complainants herein towards the OP concerned, which fact compelled the complainants herein to serve legal notice dated 12.10.2015 upon the OP through speed post A/D for the recovery/ refund of the amount paid by them (inclusive of taxes) alongwith interest thereof @18% per annum, which legal notice dated 12.10.2015 was received by the OP on both its registered address as well as the branch office. No response was forthcoming even to the legal notice. The complainants have accordingly filed this complaint for the redressal of their grievances.

          OPs were noticed but they not having filed the written statements within the prescribed statutory period of 30 days, their right to file written statements has been closed vide proceedings recorded on 04.11.2016. The complainants have thereafter filed their evidence reiterating the submissions and maintaining the allegations as contained in the complaint.

          The matter was listed before us for final hearing on 09.01.2018 when counsel for both sides appeared and advanced their arguments. We have perused the records of the case.

          The ld. Counsel for the complainant argued that the OPs have been deficient in rendering service to them. There was no. rebuttal from the OPs, their right to file WS has already been closed.

It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade practice as defined, in section 21 (r )(ii) of the Act, as well. (See : Lucknow Development Authority vs. M.K. Gupta – (1994) 1 SCC 243 ).During the course of the arguments the ld. Counsel for the OP submitted that the possession was offered to the complainant in 2011. The ld. Counsel for the complainant however rebutted saying that the project was not complete. Offering of possession without obtaining completion certificate is deceptive and amounts to unfair trade practice. The U.T. Commission Chandigarh in the matter of Abha Arora vs. Pumma Realtors in CC-170/15 decided on 01.04.2016 have held that the development not complete at the time of offer of possession is unfair trade practice.

Having arrived at the said conclusion, the core question 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 OP on account of non-delivery of the allotted shop.

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 OP. 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., if it happens to be a plot of land, like in the present case.”

The NCDRC in Surender Kumar Tyagi vs. Jagat Nursing Home reported in IV (2010) CPJ 199 has held that compensation has to reasonable and not in anyway to enrich the consumer.

Their Lordship in the Supreme Court in the matter of Balram Prasad (Dr) Advance Medical Care  and Research Institute Ltd., Dr. Baidyanath Haldar, Dr. Kunal Saha an others and reported in IV (2013) CPJ 1SC it have laid down the principle for just compensation, basing it on restitution integram i.e. claimant must receive sum of the money which would put him in same position as he would have been if he had not sustained the wrong.

          We may now advert of Clause 4(e) of the agreement arrived at  between the complainants and OPs, which says that in the event the OPs are not able to complete the project within the agreed period as indicated at Clause 4(a), they would offer an alternate property, which was never offered and if no alternate property is available, the OPs will refund the amount paid by the allottee in full with interest @12% per annum from the ate of payment(s) by the allottee without any further liability to pay any damages, compensation or other charges.

          Their Lordship in the Hon’ble Supreme Court in the matter of Bharti Knitting Company vs. DHM World Wide Courier Division of AIR – AIR 1996 SC 2510 – have held as un:-

“Parties to the contract are strictly bound by the terms of contract and cannot go beyond the terms”

          Having regard to the discussion done, and keeping in view the Clause 4(e) of the agreement referred to above, we direct the OPs to refund the amount paid by him with interest @12% per annum from the date of the payment was received till the realization of the amount and the interest. We also order OPs to pay the compensation of Rs.1,00,000/- towards the mental harassment and agony as also litigation charges. This may be done within three months from the date of receipt of the certified copy of the order.

          Copy of the order may be sent to both the parties as statutorily required.

          File be consigned to record.

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)