For the Complainant :MR. JALAJ AGARWAL
For the Opp.Party :
Ms. Roohina Dua, Advocate

Dated : 09 Jun 2016
Mr. Bhupinder Singh, complainant in this case applied for allotment of an apartment in the Group Housing Project of M/s. Unitech Ltd., the OP in this case, called Unitech Horizon constructed on plot No. 6 Sector Pi-2 (Alistonia Estate), Greater Noida, District Gautam Budha Nagar, U.P.  An allotment letter was issued in his favour on 08.05.2006 regarding an apartment No 0102, having super area of 1705 sq. ft. on the first floor of tower 21.  Total sale consideration was ₹49,85,380/- and the complainant had paid a total sum of ₹48,03,982/- till 05.12.2008.  The complainant took a loan in sum of ₹12,50,000/- from HDFC Limited @9% p.a. to @12.25% p.a.  The OP assured the complainant that he would get the flat till 15.11.2008.  The flat was not ready but the OP vide e-mail dated 04.07.2009 assured the complainant that the possession would be delivered by 3rd quarter of 2010.  The complainant has been running from post to pillar from 2009 till 2015 but he was always given the false promises.  Ultimately this complaint was filed before this Commission on 19.10.2015 with the following prayers:-
(a)  Direct the opposite parties to pay the sum of ₹1,20,51,291/- out of which ₹48,03,982/- is towards principal and ₹72,47,309/- is towards simple interest at the rate of 18% p.a. alongwith pendent lite and future interest at the same rate or such higher rate which this Hon’ble Commission may deemed fit in the interest of justice. 

(b)    Direct the Opposite Parties to pay a sum of ₹10,00,000/- to the complainant as compensation for harassment, inconvenience and mental agony caused by the opposite party;

(c)    That a sum of ₹50,000/- be allowed as litigation costs.

(d)    Any other reliefs that this Hon’ble Commission deems fit and proper in favour of the Complainant in the circumstances of the case.

2.      OP has listed the following defences in support of his case.  The Opposite Party has been delivering the project on time since more than 40 years and whenever the situation had arisen has duly paid the compensation for delay to all the customers.  The OP is a reputed builder.  Again, out of 22 towers of the project, the OP has successfully delivered a total number of 19 towers and 500 families are already inhabiting in the said project.  Again, it was agreed between the parties that various blocks, towers comprised in the complex would be ready and completed in phases and after the completion the apartments would be handed over to the respective allottees of different towers.  In the agreement it was also agreed that if the company is not in a position to offer the apartment altogether, the Company shall offer the allottees an alternative property or refund the amount in full with simple interest @10% p.a. without any further liability to pay damages or any other compensation.  The demand raised by the complainant to pay interest @18% compounded interest is unreasonable.  Again it was also agreed that the developer / Op would be liable to pay charges to the tune of ₹5/- per sq. ft. per month of the super area for the period of delay in offering the possession of the apartment.  The complainant is bound by the agreement.  All the other allegations have been denied.

3.      We have heard the Ld. Counsel for the parties.  The Ld. Counsel for the OP at the outset submitted that they were unable to put the complainant in possession of the flat immediately.  She also contended that no alternative flat can be allotted.

4.      It may be mentioned here that this is an old case.  Recently, we are taking care whether the interest part has been added or not.  As per section 21(a), the National Commission can take into consideration the principal amount and compensation.  Unlike CPC, for the matter of pecuniary jurisdiction, the interest is not to be considered at the initial stage.  Section 21(a) is specifically silent about this aspect.  Again, in a three-member Bench Authority in “Shahbad Cooperative Sugar Mills Ltd. vs. National Insurance Company Ltd. & Ors. II (2003) CPJ 81 (NC), it was clearly observed that so far as case of jurisdiction is concerned, the interest is not to be considered at the initial stage.  However, this case was filed before this fact came to our knowledge.  We follow the Supreme Court authority in the case of Ganesh Polytechs Ltd. Vs. Transport Corporation of India, [2000 (10) SCC  418],  which lays down that at the final stage, the case must be decided even though the Commission does not have the pecuniary jurisdiction.

5.      It must be noted that the OP took the lion’s share of the price of the apartment in dispute till 05.12.2008.  Almost a decade is going to elapse.  No headway has been made in respect of the tower in question.  The complainant has many irons in the fire.  He is utilising the amount of the complainant for other projects.  A fabian policy adopted by the OP must have benefited it a lot.  It has already succeeded to feather in its own nest, that is to make profit at the cost of others.  For this reason too, the case cannot be sent back to State Commission at this late stage.  Consequently, this argument must be eschewed out of consideration.

6.      We also clap no importance to the submission made by the counsel for the OP that the interest should be given at the agreed rate between the parties.  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  while relying upon the judgment passed in Ghaziabad Development  Authority  Vs. Balbir Singh, (2004) 5 SCC 65, has held that “But in cases where monies are being simply returned, then the party is suffering a loss  inasmuch as he had deposited  the money in the hope of getting a flat / plot.  He is being deprived of that flat / plot.  He has been deprived of the benefit of escalation of the price of that flat/ plot.  Therefore, the compensation in such cases would necessarily have to be higher”.  The Apex Court, further observed 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”.

7.    We hereby direct that the OP would return the entire amount received by it, i.e., ₹48,03,982/- alongwith interest @18% simple interest from the dates of deposits till its realization.  We also award a compensation of ₹50,000/- to the complainant which be paid to the complainant within 90 days from the date of receipt of the copy of this order.  Otherwise, it will carry interest @9% p.a. till realisation.  There shall be no order as to costs.
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