Date of Decision: 14.09.2020
Complaint No.1415/2016
IN THE MATTER OF
MS. PRACHI MATHUR
D/o Mr. I.R. Mathur 502, Jhelam Arorvansh CGHS Limited Plot No. 8 Sector-5, Dwarka New Delhi-110075 ….Complainant
VERSUS
M/S TDI INFRASTRUCTURE LIMITED
Registered office at
10, Shaheed Bhagat Singh Marg New Delhi-110001
Corporate office:-
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Upper ground floor, Vandana building 11, Tolstoy Marg, Connaught place New Delhi-110001....Opposite Party
HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes Present: Sh. Jitender Vashisht, Counsel for the Complainant Sh. Vaibhav Agnihotri, Counsel for the Opposite Parties
PER: ANIL SRIVASTAVA, MEMBER
JUDGEMENT
Short question involved in this complaint under Section 17 of the Consumer Protection Act 1986, the Act, filed by Mrs. Prachi Mathur resident of New Delhi, for short complainant, against the M/s TDI Infrastructure Limited hereinafter referred to as OPs, is whether the OPs have been deficient in rendering service to the complainant, they not having delivered the possession of a three Bedroom flat of 108.14 sq. mtr. (1164sq. ft.) size tentatively numbered as T-121, booked by the complainant, in the project of the OP, namely, Tuscat Floor, in Tuscan City, Kundali, Sonepat for total sale consideration of Rs. 27,07,426/- despite the agreed period for the purpose having been elapsed, and if so, whether the prayer of the complainant for the refund of the deposited amount with interest at the rate of 21% can be considered, or, in the alternate, whether the possession of the flat can be considered to be delivered as of now as argued by the OPs.
1.
Facts of the case necessary for the adjudication of the complaints are these.2. On the advancement and advertisement of the OPs regarding their upcoming project, namely,
"Tuscan Floors" at Kundli, Sonepat the complainant had applied for three Bedroom Flat of 108.14 sq. mtr. to be constructed in the above said project near TDI Mall in Tuscan City, Kundali, District Sonepat, Haryana and in response thereto the OPs had allotted a dwelling unit to him tentatively numbered as T-121 with customer ID-KTF 10137 for a total cost of Rs.27,07,426/-. An Agreement dated 02.05.2011 was executed between the opposite parties and the complainant. The above said agreement specified the super area of the above said flat, sale price as well as other terms and conditions. The OPs were required to handover the physical and peaceful possession of the said flat to the complainant by the end of October, 2013 or else pay compensation of Rs. 5/- per sq. ft. of the total super area per month. Possession of the flat was agreed to be handed over with all occupation certificate and completion certificate. The complainant had made the payment as per the schedule.
3.
However the OPs have not been able to complete the construction in the project. The complainant sought the progress report and certain documents like OC/CC/NOC/Non-encumbrance certificate but all his efforts done to get the response from the OPs proved an exercise in futility. The complainant has alleged that the OPs have indulged in unfair trade practice as on the one hand they do not hand over the possession and do not provide them with the documents as on the other hand. A
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legal notice was accordingly issued demanding possession and for delivery of the documents but even the legal notice could evoke no response. In these circumstances the complaint has been filed before this Commission for the redressal of the grievances praying for possession of the flat if OC and CC and other documents from the concerned authorities have been obtained or refund with interest. OPs were noticed and in response thereto they have filed their reply resisting the complaint both on technical ground and on merit stating that the complainant having opted for construction linked plan had been defaulter and the complainant cannot take advantage of his own wrong. Secondly, offer of possession of the flat was sent to the complainant within the time and thus the allegation of the complainant to this extent cannot be substantiated. Finally on merit the OPs have denied the allegation as according to them it is the complainant who being defaulter was in the wrong and for his own wrong she cannot take advantage.
5.
The complainant has filed rejoinder rebutting the contentions raised in the written statement and reiterating the averments contained in the complaint. Evidence by way of affidavit are also on record.
6.
This complaint was listed before this Commission for final hearing on 04.09.2020 when the counsel for both sides appeared and advanced their arguments, the complainants for the refund of the deposited amount with interest, the OPs having failed to deliver the possession of the flat(s) within the time as agreed to and after the period is over it is the discretion and decision of the complainant to ask for the possession with interest as claimed or for refund with interest and the OPs on the other hand for the dismissal of the complaint as according to them no cause of action subsists as against them they having offered the possession of the dwelling unit within the agreed period. I have perused the records of the case and given a careful consideration to the subject matter.
7.
Point for determination in this complaint is whether the complainant is entitled for the refund as pressed for during the course of the arguments or the OPs having offered them the possession of the flat within the time, the complainants are not entitled for the refund.
8.
In the first instance I may advert to the defence of the Ops. Their first objection that the complainant had been defaulter cannot be accepted as the complainant having opted for construction linked plan had to make the payment as per the progress done in the project. Secondly their argument that they had offered the possession of the flat within the time agreed to cannot be stretched beyond a point since that offer was as the complainant, without the occupancy certificate or completion certificate and if that be the case the offer of possession was not valid. For this purpose reliance is placed on the judgment of the Hon'ble NCDRC in the matter of Treaty Construction and Anr. Versus Ruby Tower Co- op Hsg. Society Ltd. and ors as reported in II [2018] CPJ 54 (NC) holding in para 11 as under:-
9.
So far as the question of obtaining the occupancy certificate is concerned, as per the provisions of MOFA the possession should not have been handed over to the members of the complainant society without obtaining occupancy certificate and this is a clear unfair trade practice. It is being argued on behalf of the OP that there are additions and modifications in the building and therefore, it is difficult to obtain the certificate and the matter is getting situation has been created by the OPs themselves as they offered possession without the occupancy certificate. Clearly, not obtaining occupancy certificate is the deficiency on the part of the OP/appellant.
Similar view was taken by the Hon'ble NCDRC in the matter of Kamal Kishore and anr versus Supertech Limited as reported in II [2017] CPJ 483 (NC) holding inter alia that no payment is required to be made unless the possession is offered after obtaining the requisite occupancy certificate.
Having regard to these facts the objections of the OPs being not maintainable are sequentially rejected. The sum and substance is that the complaint deserves to be accepted and it is ordered
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accordingly. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
11.
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 Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (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 my 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.
12.
From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
13.
The Hon'ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
14.
The complainants in their arguments have also relied on the judgment of the Hon'ble NCDRC in the matter of Puneet Malhotra vs. Parsvnath Developers Ltd. CC 232/2014 decided on 29.01.2015 holding as under:
15.
"The opposite party has already taken almost entire sale consideration from the complainants. However, despite making almost entire payment, the complainants have not been able to get the shelters they had sought to acquire and considering the steep increase in the value of land and the cost of construction in last 7-8 years, it is not possible for them to acquire another similar accommodation even after adding the amount of interest @ 18% per annum to the amount they had deposited with the opposite party. Therefore , the facts of these cases are really gross and justify grant of interest @ 18% per annum, inclusive of appreciation in the value of land and in the cost of construction in last about 7-8 years. For the reasons stated hereinabove, the complaints are disposed of with a direction to the opposite party to refund the amount which the complainants had deposited with it, along with interest on the said amount @ 18% per annum from the date the deposit was made till the date the refund is made. This comprises 8% per annum on account of appreciation in the land value and increase in cost of construction and 10% on account of interest. However, considering that compensation is included in grant of interest @ 18% per annum, we do not grant any separate compensation to the complainants over and above interest @ 18% per
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annum." They have relied on yet another judgment passed by the Hon'ble NCDRC in the matter of Swarn Talwar and two ors vs Unitech Ltd. passed in CC 347/2014 decided on 14.08.2015 holding as under:
For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit till the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of. Besides, their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D'lima and ors as reported in II[2018] CPJ 1 (SC) are pleased to hold as under:
16.
Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation. The Hon'ble NCDRC in its recent judgment, in the matter of Anil Kumar Jain versus Nexgen Infracon Pvt. Ltd. as reported in I [2020] CPJ 368 (NC) is pleased to direct as under:-
17.
Even though in the main relief, the complainants have sought for possession of the flats/apartments in these complainants and alternatively they have claimed refund of the amount deposited by them along with interest and compensation, but as the builder OP has failed to deliver the possession of the flats to the complainants latest by 31.12.2016, i.e. the stipulated period with grace period in the agreement and approximately three years have passed but the possession has not been given and the complainants cannot be made to wait for such a long period, they are entitled for refund of the deposited amount along with compensation. Hence, for all the afore-noted reasons, all these complaints are partly allowed and disposed of along with pending IAs, if any, with the following directions to the developer to:-
Refund the entire amount deposited by the complainants along with compensation @ 12% from all respective dates of deposits till the date of realisation, within a period of one month from today failing which the builder/OP shall be liable to pay compensation @ 14% p.a. The compensation @ 12% p.a. has been directed to be paid for the reason that the complainants have taken home loans from the Banks/Financial Institutions for making payment to the Builder/OP for purchasing the flats/apartment in question.
a.
Pay 10,000/- as costs of litigation to the complainants in each of the complaints.b. Before parting, I may make it clear that the interest @ 12% per annum on the refund of the amount which has been awarded as compensation is not factually interest on refund and, therefore, there is no question of deducting any tax on source.
Having regard to the discussion done and the legal position explained, I am of the considered view 18.
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that the ends of justice would be met if a direction is issued to the OPs to refund to the complainant the amount deposited with interest at the rate of 7% from the date of deposit till realization leaving the parties to bear the cost.
Ordered accordingly.19.
A copy of this order be forwarded to the parties to the case free of cost as is statutory required. File be consigned to records.
20.
(ANIL SRIVASTAVA)
MEMBER
Pronounced On:
14.09.2020
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