NAVEDITTA DHAWAN vs UNITED LIMITED

The appellant/complainant, Ms.Naveditta Dhawan, stated in her Consumer Complaint No.173/2014, filed before the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as ''the State Commission''), that she booked a residential property, Plot No.75 with an area of 300 sq.m. and saleable area of 166.85 sq.m., in Block D in the Mega Township called ''Uniworld City'', being developed by the Respondent Builder, M/s Unitech Ltd., at Sector-97, Mohali, Punjab. The total sale consideration for the said property was 58,59,300/-, including the basic price and external development charges. An agreement to this effect was executed between the parties on 26.8.2008 and the complainant paid a sum of 5,40,000/- vide cheque No.1933082, drawn on Oriental Bank of Commerce, Jalandhar Branch, which was encashed on 8.7.2008 in favour of the Opposite Party. As per the said agreement, the Opposite Parties were required to deliver the possession of the said property within 36 months of the agreement. The Complainant was required to pay the sale consideration in accordance with the payment plan opted by her and in case of delay in payment, she was liable to pay interest at the rate of 18% per annum compounded quarterly. It has been alleged that the Opposite Party was unable to start the project as per the schedule envisaged by it. It called upon the Complainant to execute a new agreement on 22.4.2010, by which time, the Complainant had already paid a sum of 31,59,300/-. As per the new agreement, the Opposite Party agreed to deliver the possession of the property within 18 months of the signing of the said agreement. However, the total price of the property was reduced to 54,09,300/-. As per the Complainant, she had paid a sum of 48,37,428/- as on 30.6.2014 against the said total price of 54,09,300/-, but the Opposite Party did not fulfill their promise of delivering the possession within 18 months of the agreement. Alleging deficiency in service against the Opposite Party, the Appellant/Complainant filed the Consumer Complaint in question, seeking directions to the Opposite Party to deliver the possession of the property duly completed and also to pay damages by way of interest at the rate of 18% per annum from the date of filing the Complaint on the amount deposited by her.

The State Commission, after considering the averments made by the parties, allowed the Consumer Complaint and directed as follows : "As per clause 4(c) of the Agreement Ex.C-2, the opposite party is liable to pay charges at the rate of Rs.5/- per square foot per month of the saleable area of the Floor for the period of delay in offering the possession of the said Floor beyond the period indicated in clause 4(a). Thus, the opposite party is liable to pay Rs.1,07,760/- per annum for the period of delay in delivering the possession after the expiry of 18 months of the Agreement Ex.C-2 i.e. 22.10.2011. The complaint was filed in the year 2014 and even at that time the opposite party never gave any such commitment to deliver the possession of the plot to the complainant in near future but has tried to take up the plea that on account of the force majeure circumstances, enumerated in the written reply, the possession could not be delivered to the complainant within the agreed period. In these circumstances, we are of the opinion that the complainant shall be entitled to the compensation at the above said rate from 22.10.2011 till the filing of the complaint and in case the possession of the plot is delivered within three months of the receipt of the copy of this order then upto that date and in case of non-delivery of possession of the plot within that period the opposite party shall be liable to pay interest at the rate of 9% per annum on the total amount deposited by the complainant i.e. Rs.48,13,043/- from the date of filing of the complaint till the delivery of possession. It is also directed to pay Rs.11,000/- as litigation costs. The complaint is disposed of accordingly."

Being aggrieved against the above order, the Appellant is before this Commission by way of the First Appeal, seeking enhancement of the compensation awarded to her, saying that interest at the rate of 18% per annum compounded quarterly, may be ordered to be paid on the amount deposited by her with the Opposite Party and the cost of litigation may also be enhanced to 45,000/- and costs of 55,000/- may also be paid.

Notice of the Appeal was sent to the respondent, Unitech Ltd., as per orders of this Commission passed on 17.12.2015 for appearance on 2.5.2016. Notice was sent through India Post vide I.D. No.CD019746315IN. As per the track report from India Post, the said notice was delivered to the Opposite Party on 12.1.2016 at 15:39:00 hrs. The respondent, however, did not put in appearance before this Commission despite service.

During hearing of the Appeal, the learned counsel vehemently argued that although the deficiency in service on the part of the Opposite Party in not delivering the possession had been amply proved, the State Commission had not ordered payment of appropriate compensation to the appellant. In many other similar cases decided by the State Commission and also by the National Commission, it had been ordered that interest by way of compensation may be paid at the rate of 15% to 18% on the deposited amount. The Opposite Party builder had collected huge amount as consideration for the said property from them and had been enjoying the same for a long time. The learned counsel stated that they were interested to get the possession of the property and the Opposite Party should be directed to deliver possession to the appellant within a reasonable time frame.

I have examined the material on record and given a thoughtful consideration to the arguments advanced before me.

The factum of booking the said residential property by the Complainant with the Opposite Parties and the execution of the two agreements and deposit of the amount in question has been admitted by both the parties. However, the Opposite Party builder in the affidavit filed by it before the State Commission in reply to the Consumer Complaint, stated that the new agreement dated 22.4.2010 was a fresh agreement executed between the parties. They admitted that the Opposite Party had agreed to deliver the possession of the property within 18 months of the signing of the new agreement, but the said period was subject to Force Majeure circumstances. The Opposite Party stated that there was slump in the real estate market. The company could not hand over the possession of the unit due to reasons of global melt-down of the economy worldwide, wherein the foreign investors, as anticipated by the Opposite Party, had refrained from any kind of investment in India and large portions of buildings were vacant throughout India, as there was a total crash-crunch throughout. All these circumstances were beyond the control of the Opposite Party and hence, as per Article 4(c) of the Buyer''s Agreement, the Opposite Party was liable to pay charges at the rate of 5/- per sq.ft. per month for the period of delay in offering the possession of the property beyond the period of 18 months from the date of the agreement.

The State Commission, vide impugned order, has duly examined the plea raised by the Opposite Party relating to the Force Majeure conditions. Relying upon the order of the Hon''ble Apex Court in Dhanrajmal Gobindram vs. M/s Shyamjee Kalidas & Co. as reported in AIR 1961 SC 1285, the State Commission observed that Force Majeure means act of God, war, riot, strike, earthquake, tide, storm, tidal wave, flood, lightening, explosions, fire and any other happening, which the lessee would not reasonably prevent or control. I do not have any reason to disagree with the findings of the State Commission that the plea taken by the Opposite Party about the worldwide recession or crunch in real estate business do not fall under the Force Majeure circumstances. It is the duty of a builder to have proper assessment of the market conditions at the time of launching a Project and making Project Report, etc. and they are supposed to take into account the relevant factors regarding fluctuations in the economy of the country from time to time. A builder cannot just accept huge amounts of money from gullible investors and merrily make use of the same, taking the plea that there was recession in the economy and hence, the building could not be constructed within the stipulated time. The plea taken by the Opposite Party that the foreign investors refrained from any kind of investment in India is also not a valid ground for the delay in construction of the project. The Opposite Party have nowhere stated whether they had any agreement with any foreign investor, from where they could draw inference that foreign investment will be made in their project. All the pleas taken by the Opposite Party relating to Force Majeure conditions are, therefore, without any basis and it is held that the Opposite Parties have not been able to provide any reasonable explanation for the delay in construction and consequent delivery of possession to the complainant. The allegation of deficiency in service on the part of the Opposite Party towards the consumers is, therefore, writ large on the face of it.

The main issue that requires consideration in the matter is whether on account of the failure of the Opposite Party to honour its commitment in accordance with the agreement executed between the builder and the complainant, they are required to pay requisite compensation to him. The State Commission, vide impugned order, held the Opposite Party liable to pay the sum of 1,07,760/- per annum based on the provision in clause 4(c) of the agreement that 5/- sq.ft. per month of the saleable area of the floor were to be paid for the period of delay. The State Commission ordered that such compensation be paid from 22.10.2011 till the date of delivery of possession, if the possession was delivered within 3 months of the impugned order. However, if the possession was not delivered by the Opposite Party within 3 months of the impugned order, Opposite Parties shall be liable to pay interest at the rate of 9% per annum on the total amount deposited by them from the date of filing the complaint till delivery of possession. The learned counsel for the appellant, however, stated that in many orders passed by the State Commissions as well as this Commission, compensation had been allowed to the complainant in similar cases at much higher rates of interest. A perusal of the orders recently passed by this Commission reveals that in Unitech Ltd. vs. Vivek Prakash [FA/125/2015 : decided on 13.2.2015], it was held that the grounds to support the plea of Force Majeure were fake. This Commission upheld the order passed by the State Commission, granting interest at the rate of 18% per annum from the date of deposit till realization. In Subhash Chander Mahajan & Anr. vs. Parsvnath Developers Ltd. [CC/144/2011 : decided on 5.5.2014], another Bench of this Commission ordered payment of interest at the rate of 18% per annum from the date of deposit till realization. In Satish Kumar Pandey vs. Unitech Ltd. [CC/427/2014 & allied cases : decided on 8.6.2015], this Commission ordered payment of interest at the rate of 12% on the amount deposited by the Complainant after obtaining an undertaking from the Opposite Party about the likely date of delivery of the possession. It was also stated that in case, the possession was not delivered by the fresh promised date, interest at the rate of 18% per annum shall be payable to the Complainant.

In view of the findings recorded by this Commission in a catena of judgements in the recent past, it is felt that since the Opposite Party has not been able to provide any reasonable explanation before the State Commission for the delay in fulfilling their promise of delivery of possession to the Complainant and further, as they have chosen not to appear before this Commission in the present proceedings, it shall be in the interest of justice that interest at the rate of 15% per annum is paid by the Opposite Party builder to the Complainant from the date of promise of possession i.e. from 22.10.2011 till the possession is delivered to the Complainant. Looking at the facts and circumstances of the case and considering the arguments advanced by the learned counsel for the appellant, it shall be proper and in the interest of justice, if the Opposite Party delivers the possession of the property within 6 months from today. In case, the Opposite Party is not in a position to deliver the property within time as stipulated above, they shall be liable to refund the entire amount paid by the complainant to her, along with interest at the rate of 18% per annum from the date of deposit of the amount till the date of actual payment. This direction is being issued, relying upon the order made by this Commission in Swaran Talwar & Ors. Vs. Unitech Ltd. [CC/347/2014 & allied cases : decided on 14.8.2015]. The said order was challenged by way of Civil Appeal Diary No. 35562/2015 before the Hon''ble Apex Court as well, but the said Appeal stood dismissed on 11.12.2015.

This Appeal is therefore accepted and the order passed by the State Commission is modified in terms of the directions given above.