Case nº Consumer Case No. 10 of 2012 of NCDRC Cases, June 30, 2016 (case 1. Anshu Shrivastava 2. Manoj Shrivastava Vs Unitech Limited)
| Judge | For Appellant: Mr. Saurabh Jain, Advocate and For Respondents: Mr. Abhimanyu Bhandari, Advocate and Mr. Sahil Sachdeva, Advocate |
| President | Mr. V.K. Jain, Presiding Member |
| Resolution Date | June 30, 2016 |
| Issuing Organization | NCDRC Cases |
Order:
V.K. Jain (Oral)
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The complainants booked a residential flat with the opposite party in a project, namely, Unitech Habitat, Greater Noida which the said opposite party was to develop in Greater Noida. The complainants were allotted Unit No.304, measuring 2096 sq.ft., on the 3rd Floor in Tower-18 of the aforesaid project Plot No.9 in Sector Pi-II of Greater Noida. The total sale consideration was agreed at Rs.68,29,952/-, out of which the complainants have already paid a sum of Rs.62,12,807/- to the opposite party. In order to make payment to the opposite party, the complainants took a housing loan of Rs.55 lakhs from HDFC Ltd. The loan was taken on a floating rate of interest which at the time of filing of the complaint was 12.75% per annum.
As per clause 4.a of the allotment letter, the possession was to be delivered to the complainants within a period of 36 months of execution of the said document, which came to be executed on 8.11.2006, meaning thereby that the possession ought to have been delivered by 7.11.2009. Since the completion of the flat was nowhere in sight, the complainants vide letter dated 10.4.2009 sought refund of the amount paid by them. This was followed by a letter dated 3.6.2011. Since the refund was not forthcoming, the complainants have approached this Commission seeking refund of Rs.62,12,807/- along with compensation in the form of interest quantified at Rs.23,99,438/- and rental for the period from November 2009 to January 2012 quantified at Rs.2,60,000/-. The complainants have also claimed Rs.20 lakhs as compensation for the mental agony and harassment caused to them. Alternatively, the complainants have claimed interest @ 18% p.a. on the principal amount of Rs.62,12,807/-w.e.f. November 2009 along with compensation for mental agony quantified at Rs.20 lakhs and rental quantified at Rs.2,60,000/-.
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The complaint has been opposed by the opposite party on several grounds including that since the amount paid by the complainants is only Rs.62,12,807/-, this Commission lacks pecuniary jurisdiction to entertain the complaint. On merits, the opposite party has admitted the transaction with the complainants and has claimed that in the event of delay, the complainants are entitled only to the compensation specified in clause 4.c of the allotment letter. It is also pointed out in the reply filed by the opposite party that vide letter dated 21.8.2012, they had informed the complainants that they were hoping to release Tower-18 of this project by the 4th Quarter of 2012, barring any unforeseen circumstances and had also offered allotment of ready to move in unit in released Towers 11 -17 of the said project to them but the complainants did not show any interest in accepting the said alternative allotment. The opposite party has also sought to rely upon clause 4.e of the allotment letter which provides for offer of alternative property or refund with simple interest @ 10% per annum in case the developer is not in a position to offer the apartment altogether. The delay in offering possession is sought to be justified on the ground that it had happened due to recession in the market on account of economic meltdown in the real estate, which was a reason beyond the control of the opposite party.
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As regards, the pecuniary jurisdiction of this Commission to entertain the complaint, the following view taken by this Commission in C.C. No.347 of 2014 - Swarn Talwar & Ors. Vs. Unitech Ltd., decided on 14th August 2015, is relevant:-
"5. The first question which arises for our consideration in these cases is as to whether this Commission possesses the requisite pecuniary jurisdiction to entertain these complaints. Section 11(1) of the Consumer Protection Act read with Section 21 of the Consumer Protection Act to the extent it is relevant provides that this Commission shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceeds Rs.1,00,00,000/-. The contention of the learned counsel for the opposite party is that interest claimed by the complainants cannot be termed as compensation and if the interest component is excluded, the pecuniary value of the complaint does not exceed Rs.1,00,00,000/- except in one case. The learned counsel for the complainants on the other hand contended that the interest which they have claimed along with refund of the principal sum even if not so described specifically, is by way of compensation only, since the opposite party has been deficient in rendering services to the complainants by not delivering possession of the flats on or before the time agreed in this regard.
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In our view, the interest claimed by the flat buyers in such a case does not represent...
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