NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

CONSUMER CASE NO. 282 OF 2012

1. DEWAN ASHWANI & 7 ORS.

A-2/87, Safdarjung Enclave,
NEW DELHI - 110029. ...........Complainant(s)
Versus
1. UNITECH RELIABLE PROJECTS PVT. LTD.
Registered Office 6 Community Centre, Saket,
NEW DELHI - 110017.
2. M/s Unitech Reliable Projects (P) Ltd.
6, Community Centre, Saket,
NEW DELHI - 110017. ...........Opp.Party(s)

BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON'BLE MR. DR. S.M. KANTIKAR, MEMBER

For the Complainant : : Dr. (Mr.) Harish Uppal, Advocate

With Mr. Tileshwar Prasad, Advocate
For the Opp.Party : Mr. Sukumar Pattjoshi, Sr. Advocate
With Mr. Sunil Mund &
Mr. Manoj Kumar, Advocate

Dated : 07 May 2015

ORDER

JUSTICE J.M. MALIK

1. There is a magic in that little word home. It is a mystic circle and surrounds comforts and virtues,
never known beyond its hollowed limits. However, the customers are exasperated by senseless delay made
by the Builder of a colony.

2. The present complaint was filed by the above mentioned eight complainants. Mr. Abhishek Sharma &
Mrs. Shilpi Lal Sharma, the Complainants at Sl. No. 8 in the memo of parties, have settled the matter with
Unitech Reliable Projects Pvt. Ltd. , the OP and the case filed by them against the OP stood withdrawn
vide order dated 07.08.2014. All the seven complainants contend that they have got the same interest and
have filed this complaint under Section 12(c) of the Consumer Protection Act, 1986.

3. In the year, 2006-07, the OP inserted an advertisement for availability of flats in their projects Unitech
Verve, Sector Pi-II, Greater Noida, District Gautam Bhudh Nagar, Uttar Pradesh. All the above seven
complainants, either individually or jointly, applied for the flats as per the Brochure and the terms and
conditions. They have paid up to date consideration as demanded and due, to the OP. The case of each set
of complainants is discussed here, as under:-
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A) The case of Mr. Ashwini Dewan and Mrs. Anuradha Natarajan is that they were allotted apartment
No.602 on 6 th Floor of Tower-03, Unitech Verva, Plot No.I-II, Greater Noida, vide allotment letter dated
01.02.2007. The total amount payable before final notice of possession is Rs.52,40,321/-. That amount was
paid in time and over five years back. The total amount payable for getting possession was Rs.58,55,085/-.
The only amount of Rs.6,14,764/- was to be paid when the flat was ready for possession and was to be given
after getting the final notice of possession. The allotment letter dated February, 2007 clearly mentions that
the possession was to be given within 36 months of signing of the allotment letter. It was made clear that
the time is of the essence and parties shall be liable to pay compensation @ 18% p.a., compounded quarterly
in case of delay. Letter dated 17.12.2007 showed that possession of the apartment will start in the 3 rd
quarter of the year 2009. However, another letter dated 27.06.2012 says that the possession shall, positively
be given by June, 2013.

B) The case of Mr. Jatinder Jaggi, Mrs. Nishat Jaggi and Mr.Dhruv Jaggi entailed the same terms and
conditions. They were sold apartment No.802, Floor 8, Tower-4, in the same vicinity, vide allotment letter
dated 08.02.2007. The total consideration was Rs.65,55,525/-. They have already paid an amount of
Rs.59,10,867/-. A sum of Rs.6,44,658/- is payable at the time of final notice of possession. The period of 36
months and interest @ 18% p.a., compounded quarterly is also applicable in this case. They also received
the above said letter dated 17.12.2007 assuring them of the possession of apartment in the year 2009 and
another letter dated 27.06.2012 assuring that they will get possession, positively, in the year 2013.

C) The case of the Mr.Saket Trivedi and Mrs. Pooja Trivedi (nee Sharma), is that they were allotted
apartment No.601, Floor 6, Tower-2, in the same vicinity vide allotment letter dated 23.02.2007. The total
consideration was Rs.57,47,201/-. The amount payable till final notice of possession was Rs.51,38,693/-.
They have paid a total amount of Rs.51,37,700/- and balance amount yet to be paid was only Rs.6,08,508/-.
The other facts are the same.

D) The case of Mr. Prabhat Agrawal is that he was allotted Apartment No.003, Floor-Ground, Tower-I,
vide allotment letter dated 21.09.2007, in the same vicinity. A total consideration of the apartment was
Rs.67,50,148/-, out of which, a sum of Rs.61,14,060/- was paid and a balance amount of Rs.6,36,088/- was
yet to be paid. The remaining facts are on similar terms.

E) The case of Mr. V. Prem Swarup, Mr.V. Anand Swarup and Mr.V.Shabd Swarup is that they were
allotted apartment No.102, First Floor, Tower-2, in the same vicinity, vide allotment letter dated 23.02.2007.
The total consideration of the apartment was Rs.59,03,212/-, on final notice of possession. They paid a sum
of Rs.52,98,972/- and only a balance amount of Rs.6,04,240/- was yet to be paid.

F) The case of Mr. Kshitij Puri is that he was allotted apartment No.203, Second Floor, Tower-I, vide
allotment letter dated 21.02.2007. The total consideration of the flat is Rs.61,57,777/- at the time of final
notice of possession, out of which a sum of Rs.55,69,363/- has already been paid, on time and only a balance
sum of Rs.5,88,410/- was yet to be paid.

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G) The case of Mr.Somnath Sarkar and Mrs. Mitova Sarkar is that they were allotted flat in January,
2007, for a total consideration of Rs.56,93,260/-. They paid a total sum of Rs.50,86,390/- at the time of
receipt of final notice and a sum of Rs.6,06,870/- was to be paid after the flat was ready, which was to be in
January, 2010. The remaining facts are the same.

4. The above said case was filed in this Commission, on 30.10.2012. They made the following prayers :-

A . The respondent be directed to complete the apartments within six months and thereafter
handover the possession within one month thereafter.

B. The respondent be directed to pay interest of Rs.2,14,91,396/- (Rupees Two Crores Fourteen
Lakhs Ninety-one Thousand Three Hundred Ninety-six only) on Rs.4,77,58,658/- (Rupees Four
Crores Fifty Eight Thousand Six Hundred Fifty-eight only) paid by the complainants with simple
interest @ 18% p.a., for 2- years, plus damages for harassment as the Honble Commission may
think fit and proper in the interest of justice. Plus further interest on Rs.6,92,50,054/- @ 18% p.a.,
till the date of possession, after deducting the amount payable at the time of final notice of
possession.

C. Final installment becomes payable only after interest and damages for mental agony and
harassment amount as deemed proper is fixed by the Honble Commission and is paid to the
complainants.

D. Costs of this complaint be awarded to complainants.

E. That any other and further relief in favour of the complainants as the Honble Commission may
deem fit and proper in the facts and circumstances of the case.

5. The present case was contested by the Opposite Party (OP) and it admitted having received the above
said amounts.

6. We have heard the counsel for the parties. The counsel for the OP candidly submitted that the OP is
unable to handover the possession of the premises in dispute, in favour of the complainants.

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7. Counsel for the complainants has invited our attention towards the judgment passed by the Bench
No.6 of this Commission, in Consumer Case No.250 of 2014, titled Atharva Towers Owners Association
Vs. M/s. Raheja Developers Ltd., dated 05.11.2014 wherein it was contested by 43 persons/complainants
but it was held that the case was not maintainable in that form. It was held that the 43 persons have made a
distinct prayer, there were separate bookings and hence a separate/distinct cause of action has arisen.

8. It appears that that the facts of the above referred case are wee bit different. The said judgment is not
applicable to this case. Here, each complainant has got same interest on the same terms and conditions.
Consequently, this complaint case is maintainable under Section 12(1)(c) of the Consumer Protection Act,
1986. It must be borne in mind that the object and purpose of C.P.Act, 1986 is to protect a large body of
consumers from exploitation. See Charan Singh Vs. Healing Touch Hospital, AIR 2000 SC 318. The
consumer court must be motivated with a desire to pull the consumers chestnuts out of fire. It is no part of
its duty to cause more harassment and mental agony to the helpless consumers.

9. This Commission has already decided such like case, in Consumer Complaint Nos.144 of 2011, titled
Subhash Chander Mahajan & Anr. Vs. Parsvnath Developers Ltd., and Consumer Complaint No. & 200
of 2011, titled Abhishek Kumar Dwivedi Vs. Parsvnath Developers Ltd. decided on 05.05.2014 and the
said judgment was dismissed as withdrawn by the Honble Supreme Court in Appeal Nos.8975-76 of 2014,
titled Parsvnath Developers Ltd. Vs. Abhishek Kumar Dwivedi, vide its order dated 12.09.2014.

10. Consequently, we are of the considered view that the present complaint is maintainable.

11. The second and last submission made by the counsel for the OP is that the complainants are entitled to
interest only @ 10% p.a., as per the contract entered into between the parties. The counsel for the OP
half-heartedly submitted that the construction work is in full swing, the project is near completion and the
possession of the respective apartments would be handed over as soon as possible, to the allottees. He
argued the case for a while and ultimately threw in the towel. The counsel admitted that the apartments
cannot be handed over because no headway is being made in this context. The learned counsel for the OP
submitted that they are ready to pay 10% as per the agreement entered into between the parties. He has
invited our attention towards the agreement and default clause 4 (c) which mentions, as under :-

4.c . Default:

If for any reason, the Developer is not in a position to offer the Apartment altogether, the
Developer shall offer the Allottee(s), an alternative property or refund the amount in full with
simple interest @ 10% per annum without any further liability to pay damages or any other
compensation on this account.

12. The counsel has made a vain attempt to wrench the facts from their real significance. This is an
unfortunate claim, where 7 persons made an attempt for the last about 9 years, to get a house for residing
there. They have put all their hard-earned money into this project to get a house, during their life-time.

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13. It is a well-known fact of our time that the prices of the land, flats, apartments, etc., have increased by
leaps and bounds. A house which was available before 8-9 years is not available now, even if one spends
more than 10 times of the said price.

14. It is now well settled that the complainants are not bound by the agreement, which is one-sided, almost
unilateral and consumers are coerced/compelled to sign the same. In the celebrated authority reported in
K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on
19.09.2012, interest was granted @ 18% p.a. The Honble Apex Court further held at para Nos. 25 26, of
its judgment, 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.

15. Against the judgment and order passed in Consumer Case No.344 of 2012, titled Sanjay Goyal Vs.
Unitech Ltd., & Ors., decided on 29 th May, 2013, by this Bench of this Commission, a Civil Appeal
No.6042 of 2013 was preferred before the Honble Supreme Court, by Opposite party, Unitech Ltd.,
which ordered, The appeal is dismissed as withdrawn, in terms of the signed order, as on
08.08.2013. The order, further reads as under :-

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This appeal is directed against order dated 29.05.2013, passed by the National Consumer
Disputes Redressal Commission, New Delhi, in Consumer Complaint No.344 of 2012.

After arguing the case for some time, Shri Abhimanyu Bhandari, learned counsel for the
appellant made a request that his client may be permitted to withdraw the appeal.

The request of the learned counsel is accepted and the appeal is dismissed as withdrawn.

It is needless to say that the appellant shall have to implement the directions contained in the
impugned order, within the time specified therein.

A copy of this order be sent to the respondents by registered post at the address mentioned in
the Memo of Appeal.

Sd/-

G.S. Singhvi, J".

16. It must be borne in mind that there is a huge delay in handing over possession of the
premises in dispute, i.e., about 9 years. The OP has made an attempt to feather its own nest, i.e.,
to make profits for itself, at the cost of others expenses. The OP has utilized the amount for its
own purposes. Consequently, we allow the complaint and direct the OP to pay the
complainants a sum of Rs.4,77,58,658/- (paid by the complainants), with interest @ 18% p.a.,
from the dates of receipt of the amounts, till their realization. The compensation for harassment
and mental agony is also granted @ Rs.1,00,000/- per complainant, or a set of complainants
jointly, to be paid within a period of 90 days from the date of receipt of copy of this order,
otherwise, it will carry interest @ 18% p.a., till its realization.

......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER

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