TUSHAR BATRA & ANR. vs M/S. UNITECH LIMITED , THROUGH ITS MANAGING DIRECTOR

The complainants booked a residential apartment with the opposite party in a project namely "The Residences", which the opposite party was to develop in Sector-33 of Gurgaon. Apartment No.0403 on the fourth floor in Tower A4 of the aforesaid complex was allotted to the complainant for a total consideration of Rs.39,80,760/-. The parties entered into a Buyers Agreement dated 01.8.2009 incorporating their respective rights and obligations. As per Clause 4a of the Buyers Agreement, the possession was to be delivered within thirty months of the execution of the said agreement, meaning thereby that the possession ought to have been delivered by 01.2.2012. The grievance of the complainants is that despite they having paid a sum of Rs.37,93,727/-, constituting about 95% of the sale consideration, the possession of the said flat has not been offered to them. The complainants are therefore before this Commission with the following prayers:

Director the OP to hand over the possession of the aforesaid apartment complete in all respects to the complainant immediately as per the buyers agreement and execute all the necessary and required documents in respect of the said apartment in favour of the complainant or in alternative provide a ready to move in apartment to the complainant which is of identical size and in similar locality or in alternative pay a sum of Rs.1,10,00,000/- to enable the complainant to purchase another house on his own

Direct the OP to pay compensation as for the delay in handing over the possession as per the Apartment allotment agreement. (which is calculated @ Rs.5/- per sq. ft. i.e. 100 sq. fts for each month). Delay till date being of 30 months, hence amounting to Rs.1,65,000/-, along with pendent lite interest and future compensation.

Direct the OP to pay a sum of Rs.21,000/- per month as reimbursement of rental expenses till the grant of possession of the apartment in question.Also the OP be directed to reimburse the previous rental along with pendent lite interest and future compensation paid by the complainant for the period February, 2012 till July, 2014 the total amount being Rs.6,22,000/- calculated as rent paid since 8.9.2013 till 7.8.2014, @ Rs.21,000/- per month from 10.10.2012 till 11.9.2013and @ of Rs.19,000/- per month from 11.11.2011 till 10.10.2012.

Direct the OP to pay a sum of Rs.25,00,000/- towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the complainant and the complainant''s family as a result of the above acts of omissions on the part of the OP

Director the OP to pay a sum of Rs.1,25,000/- to the complainant towards the cost of litigation.

The opposite party has filed written version resisting the complaint on several grounds. However, no one is present for the opposite party even on the third call to argue the matter.

In terms of Section 21 of the Consumer Protection Act, this Commission would have jurisdiction to entertain the complaint where the value of the goods or services as the case may be, and compensation if any, claimed in the complaint, exceeds Rs.1.00 crore. Though, the complainants have claimed a sum of Rs.1,10,00,000/- as an alternative relief, on the plea that the current price of a ready to move in apartment of an identical size in a similar locality is around that much, besides claiming Rs.21,000/- per month as rental reimbursement and Rs.25.00 lacs as damages for mental agony etc., in addition to the agreed compensation of Rs.5/- per sq. ft. per month of the super area, there is no evidence of the market value of a similar flat in the same area in a comparable locality being more than Rs.1.10 crore on the date this complaint was instituted. In the absence of such evidence, the complainants are not entitled to the alternative relief of payment of a sum of Rs.1,10,00,000/- to enable them to purchase another house. In any case, the physical possession of the flat in question admittedly has already been received by the complainants in April, 2016. As held by a Three-Members Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs., Ferrous Infrastructure Pvt. Ltd., the value of the services in such case would be the sale consideration agreed between the parties. In the case where allottee is seeking possession of the flat booked by him, this Commission has not awarded compensation in the form of interest at a rate higher than 12% per annum. Computed accordingly from the committed date of possession and added to the agreed sale consideration, the aggregate figure does not exceed Rs.1.00 crore. Therefore, it would be difficult to dispute that in view of the binding decision of a Three-Members Bench of this Commission in Ambrish Kumar Shukla (supra) this Commission does not possess the requisite pecuniary jurisdiction to entertain this complaint.

The next question which arises for consideration is as to what course of action should be followed in this case, considering that the complaint was admitted and is pending for last more than 2 1/2 years, and physical possession has already been taken. At this stage Mr. R.K. Pandey has appeared on instructions from the A.R. of the Opposite Party but there is no Vakalatnama in his favour. A number of consumer complaints involving an identical question were decided by this Commission vide order dated 31.1.2017 passed in Consumer Complaint No. 198 of 2015 - Dushyant Kumar Gupta Vs. Today Homes & Infrastructure Pvt. and connected matters. The following was the view taken by this Commission in the above-referred matters:-

"12. Now I am coming to the complaints which do not come within the pecuniary jurisdiction of this Commission. The question which arises for consideration as to what course of action should be adopted in respect of these complaints which have been pending with this Commission for the last about 1 1/2 years. One course can be to dismiss these complaints with liberty to such complainants to institute fresh complaints before the concerned State Commission. The aforesaid course of action, in my view, would not be fair and reasonable, considering that the complaints are pending for about 1 1/2 years and at one point of time, this Commission held the view that the market value of the flat as on the date of filing of the complaint could be treated as the value of the service in such matters. In my view, the appropriate course of action in such matters would be to follow the procedure prescribed in Order 7 Rule 10 A of the Code of Civil Procedure. Though, the aforesaid provision has not been expressly extended to this Commission by Section 13 (4) of the Consumer Protection Act, the principle underlying the said provision can in appropriate cases, be adopted by this Commission, in order to protect the interest of the consumers, while simultaneously ensuring that no prejudice is caused to the service provider by adopting such a course of action. The opposite party in these cases has filed its written version on the merits of the complaints. It has also led evidence on merits. No prejudice would be caused to the opposite party if the complaints are returned for being presented before the concerned State Commission, with a direction to the State Commission to decide them afresh, taking into consideration, the pleadings, affidavits and the evidence including documentary evidence filed by the parties before this Commission provided an opportunity is given to the parties to lead additional evidence and if filed, such additional evidence is also considered along with the evidence, which was filed before this Commission. The aforesaid course of action besides ensuring a prompt and expeditious disposal of the complaints by a competent Consumer Forum will also ensure that no prejudice is caused to either party in any manner".

The following directions are therefore issued in this complaint:

(i) The complaint be returned to the complainant (s), along with an endorsement containing the date of presentation and return of the complaint, the name of the complainant(s) presenting the complaint and a brief statement of reasons for returning the complaint;

(ii) The complaint shall be returned within one week from today, along with the requisite endorsement and can be presented before Delhi State Consumer Disputes Redressal Commission within two weeks thereafter;

(iii) The parties shall appear before the Delhi State Consumer Disputes Redressal Commission at 10.30 a.m. on 29.5.2017;

(iv)The State Commission need not issue a fresh notice requiring the parties to appear before it on the aforesaid date.

(v)The State Commission shall decide the complaints in terms of Para 12 of the Order, passed in Dushyant Kumrar Gupta (supra), as extracted hereinabove.