National Consumer Disputes Redressal
Dr. Navin Khanna & 3 Ors. vs Unitech Reliable Projects Pvt. Ltd. & ... on 11 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 310 OF 2014 1. DR. NAVIN KHANNA & 3 ORS. C/o. Shri Amarjit Sud, House No. 51 - G Sector - 7, Jasola Vihar, New Delhi - 110 025. 2. Dr. Shalini Khanna W/o. Dr. Navin Khanna, C/o. Shri. Amarjit Sud House No. 51-G Sector -7, Jasola Vihar, New Delhi - 110 025. 3. Mr. Shakti Thakur S/o. Mrs. Nirmal Thakur, H. No. 69, Sector - 3, Pocket 16, Madhu Vihar Dwarka, New Delhi - 110 078. 4. Mrs. Indroop Thakur W/o. Mr. Shakti Singh Thakur, C/o. Mrs. Nirmal Thakur, H. No. 69, Sector - 3, Pocket-16, Madhu Vihar Dwarka, New Delhi - 110 078. ...........Complainant(s) Versus 1. UNITECH RELIABLE PROJECTS PVT. LTD. & ANR. Regd. Office: 6, Community Centre, Saket, New Delhi - 110 017. 2. Unitech Reliable Project Pvt. Ltd. P-7, Sector -18, Noida U.P. - 201 301 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Ajay Brahme, Advocate For the Opp.Party : For the Opp. Party No. 1 : Mr. Haider Abbas, Advocate
For the Opp. Party No. 2 : NEMO
Dated : 11 Apr 2016 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. This is yet another dispute between the builder and the allottees/consumers. It is clear that the consumers are exasperated by the senseless delay made by the builders for not even making any headway towards the promised apartment.
2. Dr. Navin Khanna and his wife Dr. Shalini Khanna, Complainants No. 1 & 2 respectively and Mr. Shakti Thakur and his wife Mrs. Indroop Thakur, Complainants No. 3 and 4 are Indian Nationals, but at present they are working for gain at Greater Manchester, England. Both the couples are residing at separate addresses in England. Both the couples, separately, desired to purchase separate two flats, one each for each of couples from Unitech Reliable Projects Pvt. Ltd.-OP-1 and Unitech Reliable Projects Pvt. Ltd.-OP-2. Complainants No. 1 & 2 paid the initial booking amount in the sum of Rs.5,97,975.00 on 07.02.2007 to OP1. Thereafter, on 02.03.2007, they paid the amount in the sum of Rs.46,43,783.00 to OP1. They paid total amount in the sum of Rs.52,38,758/-. The receipt was issued on 24.03.2007. On 24th March 2007, allotment letter signed by the Complainants No. 1 & 2 and the Opposite Parties, was provided. Complainants No. 1 & 2 paid all their loan amount to the Bank HSBC Bank and closed the loan account. The Bank issued no lean certificate to the complainants. The Complainants No. 1 & 2 made the payment in the sum of Rs.46,89,946/- towards principal amount and Rs.9,59,274.22 towards interest amount. Consequently, they have to cuff off Rs. 56,49,220.22, which was paid to the Bank.
3. Likewise, the Complainants No. 3 and 4 paid the initial amount in the sum of Rs.6,02,437.50 for the flat in question, to OP1. Loan in the sum of Rs.51,34,000.00 was sanctioned in favour of complainants No. 3 & 4 and accordingly a letter was issued to them from the Bank, informing them that a sum of Rs.46,50,960.00 was disbursed. Allotment letter signed by the parties, was issued on 24.07.2008. The complainants No. 3 & 4 were issued allotment letter for their signatures and completing the formalities with their Bankers, namely Citi Bank N.A. Third Party Agreement in respect of Complainants No. 3 & 4 was made on 25.04.2008. Complainants No. 3 & 4 have been making regular payments of the instalments to their Banker. In addition to the payments mentioned above, that was financed, Complainants No. 3 & 4 have paid Rs.10,81,679/- for principal payments towards the flat.
4. All the four complainants have been following up with the Opposite parties for seeking possession of the flat till December 2010, till the filing of this complaint, which was filed on 19.08.2014. Complainants No. 3 & 4 met the Opposite Parties regarding late interest charges as the Banker had stopped making payments to the Opposite Parties due to slow construction. The Opposite Parties asked the Complainants to settle those late charges and arrears through a lump sum payment with a promise to have the unit ready within six months, in December 2011, but the same was not provided till date. The complainants No. 1 and 2 made the visit to India to discuss , seek development report of the project for and on behalf of themselves and on behalf of complainants No. 3 & 4, but their visit could not bring the desired results. Consequently, the present complaint was filed with the following prayers:-
"(a) to deliver possession of the flat in terms of the Allotment Letters/Agreements dated 24.03.2007 and 17.03.2008, to pay to the Complainants 1 and 2 as well as 3 and 4 a sum of Rs.1,00,00,000.00 each which would have at least been the value of the investment property had they invested the same amount in real estate elsewhere in Greater Noida in 2007/2008; and
(b) to pay an amount of Rs.20,00,000/- (Rs.Twenty Lacs only) to the Complainants 1 and 2 on account of harassment, mental agony, loss of time and money suffered at the hands of the Opposite Party;
(c ) to pay an amount of Rs.20,00,000/- (Rs.Twenty Lacs only) to the Complainants No. 3 and 4 on account of harassment, mental agony, loss of time and money suffered at the hands of the Opposite Party;
(d) make a payment of Rs.2,00,000.00 towards litigation expenses borne by the Complainants.
(e ) any other relief, which this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the Complainant and against the Opposite Party.
(f) pass any further and other orders which this Hon'ble Commission may deem fit and proper on the facts of this case".
5. The Opposite Parties have enumerated the following defenses. The present complaint has been filed by joining different complaints with separate cause of action, distinct subject matters & independent privity of contract and also different reliefs with a motive to evolve a novice mechanism to invoke the pecuniary jurisdiction of this Commission. The present complaint is not maintainable U/s 12 (a) (c ) of the Act, read with Section 13 of the Act and Order I Rule 8 of the C.P.C. The complaint is hopelessly barred by time. The case cannot be decided by summary proceedings before this Commission. No cause of action has arisen in favour of the complaint. As per Sections 73 & 74 of the Contract Act, all the proceedings are to be followed as per the contract/agreement entered into between the parties. Only Arbitrator has got the jurisdiction to try this case. The agreed Clauses of the agreement are binding on the parties, reference has been made to the various authorities of the Supreme Court in this context. The complainants already own flat in Delhi/NCR. The flat in question has been purchased for investment purposes and for selling at a higher value. They have purchased the said flats on 'down payment plan' and got the benefit of upto 10% of the cost.
6. There was a delay in the project because the OPs faced major disruption in doing construction activity at site due to shortage of raw material supply, strikes of farmers whose lands were acquired by Noida Authority. The sudden outrage of agitation, was completely unseen and all these unforeseen circumstances were causes of delay in adhering to pre-estimated schedule. This got superadded with acute shortage of labour and underground water, short supply of raw material, approval/sanction required from Authority to overcome restriction and prohibition imposed on going project by Central Government, i.e., MOEF, Environment Clearances. The short supply of raw material was a result of ban or mining in the Aravali for building materials by MOEF and thereafter Green Tribunal. However, the Opposite Party has still managed to deliver 1 tower out of the total number of 6 towers. It was provided in the agreement that the amount of charges @ Rs.5/- per sq. ft. per month for the entire delay period, would be given. It is contended that the delay in handing over the possession is not a deficiency U/s 2(1)(g) of the Act. The Bankers were not made a party. Prices have increased manifold to the tune of Rs.1,00,00,000/-. All the other allegations have been denied.
7. We have heard the counsel for the parties and gone through their written synopses. At the time of final arguments, we asked the counsel for the Opposite Party, as to when they would deliver the possession of the flats in favour of the complainants? While answering to this question, the counsel for the Opposite Party indulged in hubble-bubble and could not clarify the position. He argued that he will have to seek instructions from his client. We have waited for him for a pretty long period, but those instructions were never disclosed to us. It is apparent that the Opposite Parties are not in a position to hand over the flats to the complainants, in near future, even though, there is delay of about one decade. It may be recalled that the flats were booked on 07.02.2007. Even in the written submissions made by the Opposite Party, there is not even an inkling as to when the flats could be given.
8. The First submission made by the counsel for the Opposite Party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in "Raghava Estates Ltd. Vs. Vishnupuram Colony Welfare Association", Special Leave to Appeal (Civil) No. 35805 of 2012, decided on 07.12.2012.
9. The second submission made by the counsel for the Opposite Party was that the complaint is not maintainable as the matter should have been referred to an Arbitrator as per the Clause inserted in the agreement. This argument is also devoid of force because as per Section 3 of the C.P. Act, the complainants can avail the alternative remedy. The new Act has no application to this case.
10. The next argument urged by the counsel for the Opposite Party was that as per Sections 73 and 74 of the Contract Act, the complainants are entitled to those relief of compensation, which are duly incorporated and stipulated in such contract and in the present case admittedly the issue involved is delay of delivery in possession, which restricts entitlement of the complainants for penalty @ Rs.5/- per sq. ft. per month of super area. Again, as per clause 'C' of the Agreement letter, time for delivery is not absolute but conditional.
11. All these arguments are bereft of merits. The rate of interest and the rate of penalty must be compared. Since, the OPs were sitting on the driver seat, therefore the contract was prepared at their own behest. There is a huge delay in handing over the possession to the complainants. Nobody can say for sure that the complainants would get the flat during their life-time. Justice delayed is not only Justice denied, it is also Justice circumvented, Justice mocked and the system of Justice undermined. The Apex Court in a number of authorities has rejected the contract to this extent. The OP is utilizing the hard earned money of the complainants for about 10 years. The OPs have succeeded to feather their own next, i.e., to make profit for one-self, often at the expenses of others. The 'Fabian Policy' adopted by the Opposite Parties have benefitted them a lot. Not only the prices of land have since increased but the price of a rupee has come down.
12. The Apex Court in a number of authorities has not accepted the interest/penalty mentioned in the agreement. In the latest authority reported in K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012, the Hon'ble Apex Court has held at paras 25 26, as under :
"25. The case of the complainant is covered by one of the examples cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above. In this case also, the amount was simply returned and the complainant is suffering a loss inasmuch as she had deposited the money in the hope of getting a flat, but she is being deprived of that flat and thereby deprived of the benefit of escalation of the price of that flat. Therefore, the compensation in this case should necessarily have to be higher, as per the decision of this Court.
26. For the reasons aforesaid, we allow the appeals and pass the following orders :-
i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/- from the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer Forum.
ii) The respondent is directed to pay the appellant - complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.
iii) The respondent is also directed to pay the appellant- complainant a sum of Rs.20,000/-
towards cost of the litigation incurred by her".
13. Counsel for the Complainants has cited the judgment of this Bench reported in "Dewan Ashwani & 7 Ors. Versus Unitech Reliable Projects Pvt. Ltd.", Consumer Complaint No. 282 of 2012 decided on 07.05.2015, "Shri Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd." in Consumer Complaint No. 472 of 2014 and various other Bunch cases decided in one judgment by Hon'ble Justice Mr. V.K. Jain, Presiding Member, on 08.06.2015, "Chairman, Tamil Nadu Housing Board, Madras Versus T.N. Ganapathy" (1990) 1 Supreme Court Cases 608 (para Nos. 7,8 & 9) and "Bimal Behari Sarkar & Ors. Versus State of West Bengal and Ors." , 1962 SCC OnLine Cal 128.
14. Furthermore the present caser is maintainable. In "Bachu Singh And Ors. Vs. Bilaso Kuer And Ors. 1968 (16) BLJR 515, in para No. 7, it was held:-
"7. It was contended by Mr. Lalnarain Sinha appearing for the appellants that as the plaintiffs and other villagers whom they purported to represent owned different plots and had distinct rights in respect of them. Though they had similar interest, they cannot be said to possess "the same interest" in the subject matter of the suit as contemplated by Order 1, Rule 8, Code of Civil Procedure. According to him, "the same interest" means identical interest in entirety in the land to be irrigated. In the case of The Duke of Bedford And Ellis 1901 A.C. 1, Lord Macnaghten, with whom majority of their Lordships agreed, while interpreting Rule 9 of Order 16 of the Rules of the Supreme Court, which also contains the expression "the same interest", observed:
Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.
It would thus appear that the expression "the same interest" in rule 8 of Order 1 cannot be interpreted to mean identical interest in its entirety, as contended by Mr. Sinha. It means nothing more than common interest. In the case of Sivagurunatha Chettiar v. Ramaswami Iyengar 15 I.C. 399, Abdur Rahim, J. of Madras High Court also held that Order 1, Rule 8 of the Code of Civil Procedure applies not only to cases where concurrent interests are concerned but also where they are similar though distinct. Rule 8 of Order 1 of the Code of Civil Procedure is nothing but a rule of procedure for the convenience of the litigants where the number of persons interested in the subject matter of litigation is numerous, and there will be no justification for putting a stricter interpretation on the expression "the same interest" as not to cover cases of similar but distinct interest of persons having common grievance".
15. Counsel for the complainants has also cited another authority reported in "Quality Foils India Pvt. Ltd. Versus Bank of Madura Ltd. & Anr." II (1996) CPJ 103 (NC). Consequently, the present case is maintainable.
16. The complainants cannot wait for the possession of the flat in abeyance. The Opposite parties have failed to prove with any documentary evidence that they were forced to delay for the reasons mentioned in the written version. Since, there is inordinate delay in handing over the possession, therefore, the complainants are entitled to get the refund of the amount. We direct the OPs to refund the entire money received from the Complainants, with interest @ 18% per annum, from the dates of deposits, till realization. Compensation/litigation charges in the sum of Rs.10,000/- per couple (total being Rs.20,000/-) be also paid to the complainants.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER