State Consumer Disputes Redressal Commission
Sh. Rajiv Sakhuja & Anr. vs Unitech Ltd. on 10 July, 2017
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments :10.07.2017 Date of Decision :21.07.2017 Complaint No.470/2014 IN THE MATTER OF: 1.Shri Rajiv Sakhuja, R/o. JP-106 Maurya Enclave, Pitampura, Delhi-110034. 2. Smt. Ravi Prabha, R/o. 103, Sharda Apartment, West Enclave, Pitampura, Delhi-110034. ......Complainants Versus M/s. Unitech Ltd., Regd Office- 6 Community Centre, Saket, New Delhi-110017. ........Respondent 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: Complainant in person.
Shri Anirudh Gupta, counsel for OP.
PER : SHRI ANIL SRIVASTAVA, MEMBER Shri Rajiv Sakhuja and Smt. Ravi Prabha resident of Delhi have filed a complaint before this Commission under Section 17 of the Consumer Protection Act against M/s. Unitech Limited, hereinafter referred to as complainant and the opposite parties, respectively, alleging deficiency on the part of the OP, and praying for the relief as under:-
Direct the respondent to deliver the possession of the flat no.A-06-05-0504 to the complainants immediately and execute all the necessary and required documents in respect of the said flat in favour of complainants for which complainants are ready and willing to pay the balance amount of the sale consideration;
Direct the respondent to pay interest @18% per annum compounded quarterly on Rs.50,41,336/- being the amount deposited by the complainants with the respondent from the respective date of payments made by the complainants till the actual date of handing over of possession of the apartment complete in all respect by the respondent to the complainants.
Direct the respondent to pay Rs.1,37,280/- on account of reduced EDC charges.
Pass an award of Rs.20,00,00/- by way of compensation for causing mental agony and harassment to the complainants on account of inaction and negligence on the part of the respondent as a result of the above acts of omission on the part of respondent;
Award cost of the present complaint in favour of the complainants and against the respondent.
Any other relief which this Hon'ble Commission deems fit.
Facts of the case are these.
One Smt. Neeta Mittal had booked a residential flat with the OP by making payment of Rs.4,38,984/- on 31.10.09 under construction linked plan having customer code bearing no.VS-0255 in the project of the OP Known as VISTAS at Sector-17 of Gurgaon. The opposite party thereafter had entered into an agreement on 29.12.09 with Smt. Mittal, allotting a flat bearing no.0504, Block-A-6 of 3BHK apartment type, having an area of admeasuring 1560 sq.ft at a basic price of Rs.43,02,043/- and total price of Rs.51,60,403 including PLC amount of Rs.1,17,000/-, car parking price Rs.2,25,000/- and EDC & IDC charges Rs.5,16,360/-. Smt. Neeta Mittal thereafter, on receipt of the demands of the OP from time to time made the payment as per the details indicated below.
Rs.4,38,984/- referred above towards registration amount.
Rs.4,21,424/- vide cheque no.258502 duly acknowledged by respondent vide receipt no.001159 dated 18.1.10.
Rs.4,30,204/- vide cheque no. 258503 duly acknowledged by respondent vide receipt no.002376 dated 30.3.10.
Rs.6,17,794/- vide chqeue no.258504 duly acknowledged by respondent vide receipt no.004281 dated 14.07.10 on commencement of construction.
Rs.17,104/- vide cheque no.258505 duly acknowledged by the respondent vide rece3ipt no.006811 dated 1.12.10 and adjusted towards Service Tax.
Rs.6,34,898/- vide cheque no.258506 duly acknowledged by the respondent vide receipt no.007255 dated 20.12.10 and adjusted towards installments, EDC, IDC, PLC charges and Service Tax.
Rs.5,70,372/- vide cheque no.258508 duly acknowledged by the respondent vide receipt no.007977 dated 14.1.11 and adjusted towards installment, EDC & IDC charges and Service Tax.
Rs.4,65,128/- vide cheque no.258509 duly acknowledged by the respondent vide receipt no.008795 dated 12.2.11 on casting of third floor and adjusted towards installment, EDC & IDC charges, parking charges and Service Tax.
Smt. Neeta Mittal after making the payment of an amount of Rs.35,96,508/- transferred her right in favour of the complainants herein which fact on receipt of the payment of Rs.5,16,360/- on account of the transfer charges was duly acknowledged by the OP vides to have two flat for each of the two complainants. The complainants thereafter made further payment of all the dues well in time, the details of which are indicated as under:-
Rs.3,36,038/- vide cheque no.019857 duly acknowledged by the respondent vide receipt n0.010717 dated 31.12.11 on casting of 9th floor roof.
Rs.2,21,749/- vide cheque no.019913 duly acknowledged by the respondent vide receipt no.011569 dated 9.5.12 and adjusted towards installment and Service Tax.
Rs.2,21,750/- vide cheque no.019919 duly acknowledged by the respondent vide receipt no.011967 dated 23.07.12 on account of completion of masonry work and adjusted towards installment and Service Tax.
Rs.2,21,749/- vide cheque no.071727 @Rs.1,00,000/- and cheque no.019932 @Rs.1,21,749/- duly acknowledged by the respondent vide receipt no.013109 and 013110 dated 23.11.12 on account of casting of 11th and top floor.
Rs.2,21,748/- transferred through RTGS duly acknowledged by the respondent vide receipt no.016250 dated 30.12.13 on account of completion of Internal Plaster.
As a consequence thereof total amount of Rs.50,41,336/- was paid which amount is more than 95% of the total payment to be made for the purpose and remaining 5% was to be made at the time of deliver of the possession.
In the meanwhile by the orders of the competent authority, charges towards EDC were reduced @Rs.88 per sq. ft. which in the case of the complainant meant payment of an amount of Rs.1,37,280/- was in excess of the requirement and consequently the OPs were under an obligation to refund the said excess amount but the OP has not refunded, causing financial hardship to the complainants. Besides no effort has been made by the OP to hand over the physical possession of the said flat, though three years period as contemplated in the agreement has elapsed. In fact the complainants had visited the site in July, 2014 where they found that the flat allotted to them has not been constructed. In fact the construction of work on the site was completely stopped. The complainants therefore felt frustrated and cheated as the action of the OP was contrary to the terms of agreement of 29.12.09. Legal notice was sent to the OP on 01.08.14 calling upon them to perform their part of the contract by delivering the possession of the flat and to execute the documents. The complainant have also demanded interest @18% per annum to be compounded quarterly on Rs.50,41,336/- being the amount deposited by the complainant from the respective date of payment. Besides, the refund of the excess amount Rs.1,32,280/- due on account of reduced EDC charges, was also demanded. The legal notice so issued evoked no response. The complaint alleged that their hard earned money has been utilized by the OP for a purpose other than what is stipulated in the agreement. A complaint was filed before this Commission for the redressal of their grievances.
The matter was listed for the first time for admission hearing on 28.10.14 when OPs were noticed and in response thereto, they have filed their written statement raising preliminary objections as also submissions on merit of the case.
The OPs while admitting that they have received 90% of the sale consideration but could not hand over the physical possession of the flat in time for reasons beyond their control. Recession was noticed at the relevant time leading to the labour problem. The labour problem was aggravated owing the fact that Common Wealth Game was being organized around that time. Thirdly the Government of India had issued then a scheme namely NREGA & JNNURM requiring a lot of working force in those projects. Fourthly in implementation of the orders of the National Green Travel acute water shortage was noticed. Availability of bricks due to restriction imposed by the Ministry of Environment and Ministry of Mines made the position of the OP from bad to worse.
Their next objection is that the matter in the first instance was to be taken up before the Arbitrator as contemplated on the agreement. As regards the averment of the complainant for refund/ recovery of money their averment is that the matter is to be taken up before the Civil Court as, such issues cannot be disposed of or settled by the Consumer Fora under the Consumer Protection Act, 1986. OPs have also raised objection to the pecuniary jurisdiction this Commission on the ground that the amount involved in the case in essence exceeds Rs.1 crore. They have also objected to the territorial jurisdiction of this Commission as according to them the cause of action arose in the matter outside Delhi.
Finally the OPs averred, relying on the following two judgments, that the complainants are not consumer and therefore not entitled to any relief under the provisions of Consumer Protection Act, 1986.
Laxmi Engineering Works V/s. PHD INDL Institute reported in (1995) 3 SCC 583 which says that once the transaction is for commercial purpose, the jurisdiction of the Consumer Fora is ousted.
Secondly Chillkuri Adarsh Vs. Essvee Construction III(2012) CPJ 315 where it has been held that if a person has booked more than one residential flat, it amounts to investments.
On merit they have inter alia only one argument that the complainants have paid only 90% of the total sale consideration and thus payment has not been made fully, and secondly that the issue in the matter has breathed into life due to breach in contract for which Consumer For a is not the authority to seek redressal as for that purpose jurisdiction of the Civil Court is to be invoked. The opposite parties have also taken a stand that since the issues involved in the complaint requires examination and cross examination issues cannot be adjudicated in Summary proceedings under the Consumer Protection Act, 1986.
Limitation is their last limb of their argument. It is stated that the agreement was executed on 29.12.09 but the complainant has been filed in October, 2014. This complaint having been filed beyond the period of two years, as contemplated under the provision of Section 24(A) of the Consumer Protection Act, 1986, is barred by limitation.
The complainant have filed rejoinder reiterating what has been stated in the complaint and denying the averments of the OP as contained in the written statement.
In the first instance we would examine the averments made by the OP that the matter should have been taken up first before the Arbitrator relying on Section 8 of the Arbitrations and Conciliation Act, 1996. This argument has no legs to stand keeping in view the orders passed by the Hon'ble National Consumer Disputes Redressal Commission in CC 701/2005 on 13.07.17 in the matter of Aftab Singh Vs. Emaar MFG Land Limited & anr., holding that Arbitration clause in the agreement between the complaint and Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to section 8 of the Arbitration Act. The arguments is also unsustainable keeping in view the law laid down by the Hon'ble Supreme Court of India ruling that the remedy available to a consumer under the Consumer Protection Act, 1986 is in addition to and not in derogation of any law (National Seeds Corporation of India M. Madhu Sudan AIR 2012 SC 1160).
Secondly it is too late in the day to go into the objection of the OP regarding territorial or pecuniary jurisdiction at this stage. It will be travacity of justice to go in to the subject at this belated stage. Matter having already been admitted in 2014 this objection may not be sustainable. Our views are fortified by the order passed by NCDRC on 09.12.16 in the matter of Nitin Malik Vs. State of Haryana in CC 296/12 upholding this proposition. Besides we are convinced that the total sale consideration and compensation involved in the case required to be added in terms of orders of the NCDRC passed on 07.10.16 in the matter of Amrish Shukla CC 97/2016 is less then Rs.1 crore and therefore from that account the objection of the OP is even otherwise not sustainable. Similarly the head office of the OP being in Delhi the territorial jurisdiction of this Commission can not be ousted.
The objection of the OP to the effect that the complainant having since purchased more than one flat is not a consumer under Section 2(1) (d) of the CP Act, 1986 as this act amounts to investments and for commercial purpose in which case one would not be consumer .
This objection is not maintainable. Mere fact that the complainant has purchased more than one flat does not mean that the transaction is for commercial purpose. Our views are fortified as per the orders passed by the National Consumers Disputes Redressal Commission on 12.02.15 in CC no.236/1o in the matter of Kavita Ahuja V/s. Shipra Estate Ltd. and Jai Kishan Estate. The averment of the OP that the complainant has been deficient since full payment has not been made, is contrary to the agreement arrived at between the two which says that only 90% payment was required to be paid and remaining was to be paid only at the time of handing over possession which possession has not been handed over as yet.
We also do not agree that the complaint is time barred as it is a case of continuous cause of action, There is no weight in their objection to the effect that issues involved in the case are of complicated nature and cannot be disposed of in summary trial by the Consumer Fora under the provisions of Consumer Protection Act, 1986. It is a case of deficiency in service by the opposite party and thus very well adjudicable by this Commission.
Deficiency of service on the part of OP is apparent on the face of record and the complainant is consequently entitled for the relief. The opposite party having utilized the money paid by the complainant and not handing over the possession of the flat as contemplated in the agreement arrived at between the parties, amounts to deficiency. The State Commission in the matter of Lakhvinder Singh Bhamva Vs. Cholamandalam General Insurance Co. Ltd. & Anr. as reported in II (2012) CPJ 109 (Chhat) has laid down the principles of deficiency in service holding that it cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be performed by person in pursuance of contract or otherwise in relation to any service. Keeping these principles, the factum about the deficiency of service on the part of the opposite party stands established.
Having arrived at this conclusion we are of the considered view that the amount paid may have to be consequently refunded, physical possession of the flat not having been handed over in time. The complainant in support of her claim for the refund of her money has relied upon two judgments pronounce by the Hon'ble NCDRC namely, R.N.A. Builders (N.G.) V/s. Dharampal Kuldeep Singh reported in I (2017) CPJ 623 (NC) decided on 11.01.17 and Omaxe Ltd. & Anr. V/s. Dr. Ambuj Chaudhary reported in I (2017) CPJ 625 (NC) decided on13.02.17. Relying on these two judgments, she has prayed for refund with interest @21% per annum from the date of filing the complaint.
Awarding of interest can not be considered to be granted at a unifrom rate as those will depend on the facts and circumstances of the each case. There Lordship in Suprme Court in the matter of Ghaziabad Development Authority V/s. Balbir Singh II (2004) CPJ SC (2007) 5 SCC 65 have held that rate of interest @18% can not be granted in each and every case at the uniform rate and the same has to be decided examining facts of each case.
We have given our careful consideration on the subject of the interest to be awarded in the given case . We are of the view that ends of justice would be met if the OP is directed to refund the principal amount from the date of receipt till its realization with simple interest @10%. This may be refunded within one month from the date of receipt of order, failing which interest @18% shall be payable till the realization of the whole amount. We also award compensation and litigation expenses of an amount of Rs.50,000/-. We also order refund of Rs.1,37,280/- due to the complainants owing to reduction in charges towards EDC.
We order accordingly.
Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.
File be consigned to Record Room.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER (JUDICIAL)