Delhi

StateCommission

CC/356/2014

MR. SATYAKAM SIKARWAR - Complainant(s)

Versus

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

25 Jul 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION :DELHI

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

 

 

                                                                                                                                                                               Date of argument: 25.07.17                                                                                                                                                                                      Date of order: 04.08.17

 

                                                Complaint No. 356/2014

In the matter of:

Mr. Satyakam Sikarwar

s/o Mr. R.B.Sikarwar

Resident of 58/293, F-3-B, Shyam Nagar

VIP Road near Post Office

Kheria  Mod, Agra (UP) Pin 282001.                                                              …..Complainant

 

                                                                                    Versus

 

1. Unitech Ltd.

Registered office at:

6, Community Centre

Saket, New Delhi-110017.

 

2. Shri Ramesh Chandra

Executive Chairman

Unitech Limited

Registerd office at:

6, Community Centre

Saket, New Delhi-110017.

 

3. Shri Sanjay Chandra

Managing Director

Unitech Limited

Registered office at:

6, Community Centre

Saket, New Delhi-110017.

 

4. Ajay Chandra

Managing Director

Unitech Limited

Registered office at:

6, Community Centre

Saket, New Delhi-110017.                                                     …Opp. Party/Respondents

 

 

CORAM

 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/No

2. To be referred to the reporter or not? Yes/No

          Present: Shri Pramod Kumar, Counsel for the complainant.

                        Shri Paras Chaudhary, Counsel for the Opposite Party.

 

          PER: SHRI ANIL SRIVASTAVA, MEMBER

 

Shri Satyakam Sikarwar, resident of Agra, hereinafter referred to as complainant, has filed a complaint before this Commission, against M/s Unitech Limited & Ors. (for short O.P.), alleging deficiency on the part of O.P.and prying for relief as under:

1. To handover the possession of the aforesaid Apartments complete in all respects to the complainant immediately and eecute all the necessary and required documents in respect of the said apartments in favour of the complainant;
2. Direct the O.Ps/Respondents severally and jointly to pay interest @ 18% per annum compounded quarterly on amount deposited by the complainant with the O.Ps. from the respective date of payments made by the complainant till the actual date of handover of possession of the apartment complete in all respects by the O.Ps to the complainant.
3. Direct to the O.Ps/Respondents severally and jointly go pay a sum of Rs.5,00,000/- (Rupees Five Lacs only) to the complainant towares damages for the physical and mental torture, agony, discomfort and undue hardship caused to the complainant and the complainant family as a result of the above acts of omission on the part of the O.Ps.
4. Direct the O.Ps severally and jointly to pay a sum of Rs. 75,000/- (Rupees Seventy Five thousand only) to the complainant towards the cost of litigation; and
5. Any other order(s) as may be deemed fit and appropriate may also kindly be passed.

2.  Facts of the case are these.

     The complainant had booked an apartment with the OP in their project” UNIHOMES PH II at Plot No. GHP-001, Sector 117, NOIDA, Uttar Pradesh. Allotment letter was issued on 06.10.2009, allotting the complainant an apartment bearing No. 0506, 5thFloor, TowerF-3, having a super area of 990 sq. ft in the project o the OP for the value of Rs. 27,71,106/- on the terms and conditions specified in the agreement which agreement was executed on 10.11.2009. Possession of the flat was to be handed over in terms of clause 5(A) (i) of the agreement, within 24 months from the date of execution.  The said clause of agreement is reproduced below:

“That the possession of the Apartment is expected to be delivered by the Developers to the Purchaser(s) within 24 months of execution of the present agreement subject to Force Majeure circumstances, and upon registration of Sub Lease Deed provided that all amounts due and payable by the Purchaser(s) under this Agreement have been paid to the Developers within the stipulated period.  It is, however, understood  between the parties that the possession of various Towers comprised in the Complex shall be ready and completed in phase.”

     Clause 5 (C ) (ii) of the agreement laid down that the OP would be liable to pay penalty if he railed to hand over possession of the flat within the prescribed time. The said clause is reproduced below:

     That the Developers will be liable to pay charges @ Rs. 5/- per sq. ft. per month of the Super Are for the period of delay in offering possession of the said Apartment beyond the period indicasted in clause 5A, save and except for reasons beyond the reasonable control of the Developers.  These Charges shall be adjusted at the time of Final Notice of Possession.”

               Relying on the agreement executed, the complainant has alleged that the OP have been deficient in rendering service to him, they having not handed over possession of the flat within the agreed period of 24 months despite he (complainant) having already paid total amount of Rs. 26,48,948/- despite the project of the OP being free from encumbrances, controversy a court order.  The complainant tried his best to sort out the matter with the OP and requested him to hand over the physical possession of the flat but all his efforts done in this behalf proved an exercise in futility.  Infact more than three years have elapsed but possession of the flat has not been handed over nor there appears any willingness on the part of  the OP to do so.  The complainant further submits that he is also suffering on another account.  He has procured loan from the Bank for which he is paying EMI.  As a consequence thereof he is subjected to harassment on two accounts, one, he has not been handed over the possession of this flat and second, he is paying EMI to the Bank leading to financial hardship.

     The complainant has filed this complaint on 06.08.2014 for the redressal of his grievances.  The OPs were noticed.  They had put in their appearance but failed to file the reply within the prescribed period of 30 days as contemplated in the Consumer Protection Act 1986 and as ordered by the Hon’ble Supreme Court of India and consequently the reply/written statement so filed was taken off from the record.  The complainant was directed to file evidence by way of affidavit, which affidavit executed on 21.12.2016 was filed on 10.01.2017.  The complainant has reiterated in the affidavit all that he had stated and averred in the complaint.

     The matter was listed before us for hearing on 05.05.2017 when the Ld. Counsel for the complainant advanced his arguments submitting, interalia, that the OP has handed over possession of the flats to the other parties, construction in the project, having been completed by them in that tower.  The AR of the OP appearing before us, Ms. Shreetimala Das submitted that possession in respect of the complainant would also be handed over once the complaint is withdrawn.  The Ops were directed to hand over the possession without prejudice and other pleas of the party.  The matter was adjourned for 25.07.2017 for reporting compliance with respect to the possession of the flat.

     On 25.07.2017 both the counsel appeared and reported that the possession of the flat has not been handed over.

     We have perused the material on record.  We note that the construction in the project in the Tower, where the complainant had applied, is complete.  The complainant has made the payment.  There is no other embargo or encumbrance in handing over the possession.  Mere fact that a complaint is pending disposal in this Commission is no ground not to do so when there is no other impediment working against.  Once the possession is handed over, the grievances of the complainant  would stand redressed substantially. After handing over the possession the Ops may ensure the execution of conveyance deed soon thereafter preferably within 30 days.

     Now we come to deliberate on his prayer for awarding of compensation and interest. The complainant has claimed that he may be awarded 18% for the delayed period in handing over the possession as also compensation of an amount of Rs. 5,00,000/- for the harassment and Rs. 75,000/- towards litigation charges.

     Hon’ble Supreme Court of India in the matter of Lucknow Development Authority vs. M.K.Gupta{(1994) I SCC 243} has held that when possession of property is not delivered within the stipulated time, the delay so caused is denial of service and a consumer in that event is entitled for compensation.

     Their lordship in the matter of Ghaziabad Development Authority  vs. Balbir Singh reported in II (2004) CPJ 12 SC while awarding interest at the rate of 18% to the erring Authority, have observed that there cannot be any codified law on the subject and that that would depend on the facts of each case.

     The State Commission Chandigarh in the matter of Glen Appliances Pvt. Ltd. & Anr. Vs. Col. A.S.Vaid reported in I(2012) CPJ 289 Chd., has held that the compensation has to be commensurate with the loss or injury suffered.  The Consumer Fora are not meant to enrich consumers at the cost of the service provider by awarding unfair, unreasonable and highly excessive compensation.

     The Hon’ble National Consumer Disputes Redressal Commission in the matter of Surender Kumar Tyagi vs. Jagat Nursing Home reported in IV (2010) CPJ 199 have held that the compensation has to be reasonable. The For a is not meant to enrich the consumers.

     The Hon’ble Apex Court in the matter of Balram Prasad ( Dr.) Advanced Medicare & Research Institute Ltd., Dr.  Baidyanath Haldar, Dr. Sukumar Mukherjee Vs. Dr. Kunal Saha reported in IV (2013) CPJ I (SC) have laid down in principles of awarding compensation.  The principle is based on ‘RESTITUTIO IN INTEGRUM’ which means that the claimant must receive the sum of money which would put him in same position as he would have been if he had not sustained the wrong.

     We have given a careful consideration to the subject and the law laid down by the Apex Court on the subject.  In our opinion, keeping in view the facts and circumstances of the case, ends of justice would be met if simple interest of 8% is awarded for the period of delay till the possession of the flat is handed over.  We also award Rs. 20,000/- as litigation cost.

     We order accordingly.

     Copy of our order be forwarded to the parties to the case free of cost as contemplated under the provisions of Consumer Protection Rules 1987 and Consumer Protection Regulations 2005.

     File be consigned to record.

 

(ANIL SRIVASTAVA)                                                                                                                              (O.P.GUPTA)

MEMBER                                                                                                                                             MEMBER(JUDICIAL)