Sunday 4 March 2018

FRWA-NCDRC JUDGEMENT (PARA 12- 14)




 PRESIDENT

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

CONSUMER CASE NO. 427,430-440 of 2014
Versus
M/s Unitech LTD (Opposite party –OP)

Para 12. It can hardly be disputed that a term of this nature is wholly one sided, unfair and unreasonable.  The builder charges compound interest @ 18% per annum in the event of the delay on the part of the buyer in making payment to him but seeks to pay less than 3% per annum of the capital investment, in case he does not honour his part of the contract by defaulting in giving timely possession of the flat to the buyer.  Such a term in the Buyer’s Agreement also encourages the builder to divert the funds collected by him for one project, to another project being undertaken by him.  He thus, is able to finance a new project at the cost of the buyers of the existing project and that too at a very low cost of finance.  If the builder is to take loan from Banks or Financial Institutions, it will have to pay the interest which the Banks and Financial Institutions charge on term loan or cash credit facilities etc.  The interest being charged by the Banks and Financial Institutions for financing projects of the builders is many times more than the nominal compensation which the builder would pay to the flat buyers in the form of flat compensation.  In fact, the opposite party has not even claimed that the entire amount recovered by it from the flat buyers was spent on this very project.  This gives credence to the allegation of the complainants that their money has been used elsewhere.   Such a practice, in my view, constitutes unfair trade practice within the meaning of Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practice for the purpose of selling the product of the builder.  Though, such a practice does not specifically fall under any of the Clauses of Section 2(r) (1) of the Act that would be immaterial considering that the unfair trades, methods and practices enumerated in Section 2(r) (1) of the Act are inclusive and not exhaustive, as would be evident from the use of word “including” before the words “any of the following practices”.

Para 13. It was contended by the learned counsel for the opposite party that there are no specific pleadings alleging unfair trade practices and therefore this Commission should not go into the question as to whether the inclusion of such a clause in the Buyer’s Agreement amounts to unfair trade practice or not.  In support of his contention he relies upon the following observations made by the Hon’ble Supreme Court in Secretary, Bhubneshwar Development Authority Vs. Susanta Kumar Mishra, (2009) 4 SCC 684:

“Further, any fora under the Consumer Protection Act, 1986 (“the Act”, for short) before granting any relief to a complainant, should be satisfied that the complaint relates to any of the matters specified in Section 2(1)(c) of the Act, and that the complainant has alleged and made out either unfair or restrictive trade practice by a trader, or defects in the goods sold or any deficiency in a service rendered, or charging of excessive price for the goods sold, or offering of any goods hazardous to life and safety without displaying information regarding contents, etc.  If none of these is alleged and made out, the complaint will have to be rejected”

However, on fact, I find no merit in this contention.  The complainants have specifically alleged that some of the clauses in the Buyer’s Agreement were one side and they were made to sign already prepared documents.  It is also alleged that some of the clauses contained in the Buyer’s Agreement are totally unreasonable and in favour of the opposite party only.  It is further alleged that the clause providing for compensation at the nominal rate at Rs.5/- per square foot of the super area is unjust and exploits the complainants.  It is also alleged that the opposite party has been utilizing the money of the complainants for its own purposes.  Therefore, it would not be correct to say that the complaints lack pleadings which would make out a case of adoption of unfair trade practice on the part of the opposite party.  I therefore, have no hesitation in holding that instead of paying nominal compensation of Rs.5/- per square foot of the super area, the opposite party should pay adequate compensation to the complainants which would not only take care of the additional financial burden on them on account of the delay in construction of the flat but will also give some compensation to them for the harassment and mental agony which they have suffered all along and are likely to suffer atleast for some more time on account of the opposite party having not delivered the possession of the flat to them by the date stipulated in the Buyer’s Agreement.

Para 14. As noted earlier, the cost of the borrowing for individual home buyers is about 10% per annum though it had gone upto 11.5% in last few years.  In my view, if the opposite party, pays simple interest @ 12% per annum to the complainants, that would not only take care of the additional financial burden on them but also give some monetary compensation to them for their sufferings on account of the delay in handing over possession of the flat purchased by them.

Warm Regards

For FEDERATION OF RESIDENTS WELFARE ASSOCIATION


KULDEEP KUMAR KOHLI
PRESIDENT



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