Chandigarh

DF-I

CC/910/2016

Manohar Lal - Complainant(s)

Versus

M/s Unitech Ltd. - Opp.Party(s)

Sandeep Khunger

22 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

                               

Consumer Complaint No.	:	CC/910/2016
Date of Institution	:	28/10/2016
Date of Decision	:	22/08/2017

 

 

Manohar Lal son of Sh. Amar Chand r/o Flat No.301, United Co-operative House Building Society, Sector 68, S.A.S. Nagar, Mohali.

…..Complainant

V E R S U S

1.     M/s Unitech Limited, SCO No.189-191, Sector 17-C, Chandigarh, through its Managing Director.

2.     M/s Unitech Limited, Office 6, Community Centre, Saket, New Delhi-110017, through its Managing Director.

3.     Alice Developers Private Limited, Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

……Opposite Parties

 

CORAM :	MRS.SURJEET KAUR	PRESIDING MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                                                       

 

ARGUED BY	:	Sh. Sandeep Khunger, Counsel for complainant
	:	Smt. H. Singh, Counsel for OPs 1 & 2
	:	OP-3 ex-parte

Per Surjeet Kaur, Presiding Member

1.         The facts of the consumer complaint, in brief, are that the OPs introduced a project in the name and style of Gardens (Sector 97) at Uniworld City, Mohali. The complainant booked a flat having super area measuring 1485 sq. ft. approximately for his personal use and occupation. Vide letter dated 19.10.2011, apartment No.0203, 2^nd floor, Block-C, Tower C-2 was allotted to the complainant. The total cost of the flat was fixed as Rs.45,16,650/- out of which the complainant paid Rs.4,02,900/- vide cheque dated 29.9.2011 at the time of booking. Thereafter OPs 1 & 2 also involved OP-3 as a Developer. Accordingly a Buyer’s agreement dated 9.11.2011 was executed between the complainant, OPs 1 & 2 and OP-3 as per which possession of the flat was proposed to be offered within 36 months of the signing of the Buyer’s agreement. Thereafter the complainant made payments as per the demand letters received from the OPs.  However, as construction was not started by the OPs, accordingly no further demand of installments was made by them. The complainant vide registered notice dated 2.8.2016 called upon the OPs to refund the amount alongwith interest and compensation, but, to no avail. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, the complainant has filed the instant complaint.
2.         OPs 1 & 2 in their written statement have not disputed the factual matrix.  The OPs have taken the preliminary objection that this Forum does not have territorial and pecuniary jurisdiction to decide the complaint.  It has been averred that the complainant bought the flat only for commercial gains.  It has been stated that as per the Buyer Agreement, the responsibility to hand over the possession of the unit within tentative time frame of 36 months was solely of OP-3 and OPs 1 & 2 had no role in it.  The cheques given by the complainant were received by the Chandigarh office of the OPs only as a facilitator. The entire payment made by the complainant was deposited in the designated account of OP-3 and no money was ever retained by OPs 1 & 2. The receipt of any notice from the complainant has been denied. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs 1 & 2 prayed for dismissal of the complaint.
3.         OP-3 did not appear despite due service, therefore, vide order dated 16.12.2016, it was proceeded ex-parte.
4.         Rejoinder was filed by the complainant denying all the averments in the written reply of OPs 1 & 2.
5.         The contesting parties led evidence in support of their contentions. 
6.         We have gone through the record and heard the arguments addressed by the learned Counsel for the contesting parties.
7.         The sole grouse of the complainant is that he paid Rs.12,75,514/- towards the part payment of the flat in question to be purchased in the project of the OPs.  As per the case of the complainant and Annexure C-4, the buyer agreement dated 9.11.2011, the delivery of possession of the flat in question was to be handed over within 36 months of the signing of the aforesaid agreement but, till date the possession has not been handed over to him due to the reasons best known to the OPs. Hence, the complainant has prayed for the refund of the amount as well as compensation for mental and physical harassment.
8.         The stand taken by OPs 1 & 2 is that the present complaint is neither within the territorial nor the pecuniary jurisdiction of this Forum due to the reason that the office of the OPs is at Delhi and the total consideration of the said unit is Rs.45,16,650/-.  It has further been alleged that the complainant invested his money for commercial purposes. OP-3 did not appear to controvert the stand of the complainant and was proceeded ex-parte.
9.         The first question for consideration is whether the present complaint lies within the territorial jurisdiction of this Forum or not?  The answer to the same is in affirmative.  As a matter of fact, the payments were made to the OPs at their Chandigarh office and the OPs have their regional office at Chandigarh.  Since a part of cause of action arose at Chandigarh, therefore, this Forum has the territorial jurisdiction to try the present complaint.
10.         The next objection raised by the OPs is with regard to the pecuniary jurisdiction.  However, in the present complaint, the complainant is claiming for refund of Rs.12,75,514/- which he had paid towards the part payment of the flat in question. In C.C. No.456 of 2016 titled Mrs. Mansi Khanna and another Versus PUMA Realtors Pvt. Ltd. & Ors. the Hon’ble State Commission, UT, Chandigarh while deciding the issue of pecuniary jurisdiction relied on the view taken in Shahbad Cooperative Sugar Mills Ltd. case and held that the amount of interest shall not be included while deciding the pecuniary jurisdiction of the Foras/Commissions. So, keeping in view the above judgment, this Forum has the pecuniary jurisdiction to adjudicate upon the complaint as the amount of interest is not to be taken into consideration while deciding the pecuniary jurisdiction.
11.         The next point for consideration is that the complainant is not a consumer whereas the complainant has clearly stated in the complaint that he alongwith his family is residing in a rented accommodation at Mohali.  Mere bald assertions cannot be believed as such. In Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the Hon’ble National Commission that the buyer(s) of the residential unit(s) would be termed as consumer (s), unless it is proved that he or she had booked the same for commercial purpose. So, keeping in view the above stated judgment, the OPs have not proved that the complainant is an investor or has brought the property for commercial use and hence the complainant is a consumer under the Act of 1986. 
12.         It has also been alleged by OPs 1 & 2 that the amount paid by the complainant was deposited in accounts of OP-3 and not in theirs, but, till date they have not produced any single document to substantiate their claim.  Hence, OPs 1 & 2 alongwith OP-3 are deficient in accepting the amount from the complainant and later not delivering the possession of the plot within the agreed time period of 36 months.
13.         In view of the above discussion, the present consumer complaint deserves to succeed.  The same is accordingly partly allowed. The OPs are directed as under:-

(i)     To refund the amount of Rs.12,75,514/- to the complainant alongwith interest @ 7% per annum from the date(s) of deposit till realisation;

(ii)    To pay to the complainant Rs.1,00,000/- as compensation for mental agony, physical pain and inconvenience caused;

(iii)   To pay to the complainant Rs.10,000/- as costs of litigation. 

14.         This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above
15.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
22/08/2017	[Suresh Kumar Sardana]	[Surjeet Kaur]
hg	Member	Presiding Member