Delhi

StateCommission

CC/387/2015

RAJESH KUMAR SHARMA - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

13 Oct 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :13.10.2017

Date of Decision :17.10.2017

Complaint No.387/2015

IN THE MATTER OF:

 

Shri Rajesh Kumar Sharma,

S/o. Shri Hori Lal Sharma,

G-12, Pratap Vihar,

Ghaziabad(UP).                                                                               ……Complainant

 

                                                            Versus

1. The Managing Director,

Unitech Limited,

6 Community Centre,

Saket, New Delhi-110017.                                                                    ….Opposite Party No.1

 

2. The Manger,

Unitech Limited,

P-7, Sector-8,

Noida, 201301.                                                                           ….Opposite Party No.2

 

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 Yash Tandon, counsel for the complainant.

                        Shri Anirudh Gupta with Shri Shoumekh Izaz,

counsel for the Opposite Parties.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          Short question  for determination in this complaint filed by the Shri Rajesh Kumar Sharma, resident of Ghaziabad, Utter Pradesh, for short complainant, is whether he is entitled for the refund from the Unitech Limited, hereinafter referred to as OP, for they having been allegedly found to be deficient in  rendering service, thereby indulging in the unfair trade practice, moreso when the OPs were exparte not having filed written statement within the time prescribed under the Consumer Protection Act, 1986 (Act).

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

          The complainant had booked an apartment through the OP on 16.08.2005 paying the registration amount of Rs.3,00,000/-, which amount was procured by way of loan from the bank. As a consequence  thereof an allotment bearing no.0402, 4^th Floor, Tower-II, of the size of 1537 sq ft., having total sale consideration of Rs.35,76,717/-, was allotted and flat buyer agreement was also executed simultaneously. According to the agreement possession of the flat was to be delivered by 21.03.2008. The relevant potion of the agreement regarding handing over of the possession of the flat is indicated below:

That the possession of apartment is proposed to be delivered by the company to the allottee(s) by March 31, 2008 subject to Force Majeure circumstances and upon registration of lease deed/ Tripartite Deed, provided all amounts due and payable by the intending allottee(s) as provided herein have been paid to the company, It is, however, understood between the parties that various blocks/ towers comprised in the complex shall be ready and completed in phases and after the completion the apartments will handed over to the respective allottee(s) of different towers. The company shall be  entitled to reasonable extension in livery to the allottee(s) of the possession of apartment in the event or any default or negligence attributable to the allottee(s)’s fulfillment of terms & conditions of allotment.

The complainant has alleged that the possession of the flat is yet to be handed over, though more than 9 years have elapsed in the process. The OP has not been able to account for the delay done. Besides there existed NO FORCE MAJEURE justifying the delay done. The complainant has been constantly and continuously addressing the OPs to hand over the physical  possession of the flat, but all his efforts done in this behalf proved an exercise in futility. The complainants’ further allegation is that the OP are enjoying the          money deposited, thereby indulged in unfair trade practice and exposed to action under Section 2(1) ( R) of the Act. The complainant by making the payment as agreed to has fulfilled his obligation but the OP not having handed over the possession have been deficient in rendering service thereby liable for action under Section 2(1)(g) of the act.

Frustrated with the indifferent attitude of the OP, the complainant has filed this complaint praying for the relief as under:

i)       Direct the OP to provide the possession of the flat along with 18% interest on delay or else to refund the amount of Rs.35,76,717/- along with 18% market rate of interest on the total amount.

ii)      Direct the OPs to compensate the complainant  with Rs.25,00,000/- for all the inconvenience, apathy, humiliation and tormenting received at the hands of the OP.

iii)     Direct the OP to render an apology letter.

iv)     Direct the OP to pay a sum of Rs.21,000/- towards cost of this petition;

And pass any such orders and reliefs deemed fit and proper by this Hon’ble Commission in view of the facts and circumstances of this case, for which act of kindness, the complainant shall, as is duty bound, ever pray.

The OPs were noticed by this Commission. They having not filed the written statement within the prescribed period of thirty days, their right to do so was closed as per the proceedings recorded on 12.02.2016. The complainant on the other hand filed his evidence by way of affidavit and written arguments, reiterating substantially what was recorded in the complaint.

This matter was listed before us on 13.10.2017 for arguments when the ld. Counsel for both sides appeared and advanced their arguments. The complainants have also filed brief synopsis reiterating what was submitted in the written arguments. We have perused the records of the case.

It was averred and argued that possession of the flat  has not been delivered despite payment has been made and sufficient time having been elapsed. There is nothing on record to controvert the submission made by the complainant. This clearly goes to establish the deficiency on the part of the OPs. The OPs by not discharging their duty as contemplated in the agreement has certainly indulged in unfair trade practice.

Having bestowed our anxious consideration to the facts at hand, we are of the considered opinion, that the complaint deserves to be accepted. It is a trite law that where possession of properly is not delivered within the stipulated time/ 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 the Consumer Protection Act, 1986.

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  Unitech on account of non-delivery of the allotted flat.

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 – MANU/SC/0282/2004 (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.

Having regard to the facts and circumstances  of the case we are of the considered view that the complainant is entitled to the refund as prayed for and we order accordingly. The OP is directed to refund the principal amount within two months alongwith simple interst at the rate of 10% from the date of receipt of the money till the refund is done.

Now we may deal with the prayer made by the complainant regarding awarding of compensation. The complainants have prayed for compensation of Rs.25 lakhs. The broad principles to be kept in view while determining the compensation or damages have been set out above. Keeping in view the facts of the case, also that the refund has already been ordered with simple interest @10% in the proceeding paragraph, and also noting that the interest is also the component of compensation or damages, we feel that the compensation of Rs.5,00,000/- would be just and  proper and we order accordingly. We also award Rs.20,000/- as litigation cost.

With these directions the complaint is disposed of leaving parties to bear their cost.

Copy of this order be sent to both the parties free of cost as statutorily required.

          File be consigned to Record Room.

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)