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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