Chandigarh

DF-II

CC/931/2017

Amarjit Singh Kang - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Rupinder Singh Jhand Adv.

01 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	931/2017
Date of Institution	:	14.12.2017
Date of Decision	:	01.06.2018

 

                                                

                                     

 

 

Amarjit Singh Kang s/o Sh.Supinder Singh Kang, r/o H.No.1218, Sector 79, Mohali.

                                      ...  Complainant.

Versus

1. Unitech Ltd., Regd. Office 6, Community Center, Saket, New Delhi through its Managing Director.
2. Unitech Ltd., (Uniworld City Mohali), Marketing Office at SCO No.189-90-91, Sector 17, Chandigarh through its Authorized Officer.

…. Opposite Parties.

(2)

Consumer Complaint No.	:	932/2017
Date of Institution	:	14.12.2017
Date of Decision	:	01.06.2018

 

                                               

                                     

 

 

Kuldeep Singh s/o Sh.Faquir Singh, r/o  VPO Sohana, Mohali, District Mohali.

                                      ...  Complainant.

Versus

1.       Unitech Ltd., Regd. Office 6, Community Center, Saket, New Delhi through its Managing Director.

 

2.       Unitech Ltd., (Uniworld City Mohali), Marketing Office at SCO No.189-90-91, Sector 17, Chandigarh through its Authorized Officer.

…. Opposite Parties.

 

 

BEFORE:    SHRI RAJAN DEWAN, PRESIDENT

SHRI S.K.SARDANA, MEMBER

 

Argued by: Sh.Rupinder Singh Jhand, Advocate for the complainant.

Ms.Vertika H.Singh, Advocate for the OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.           By this common order, we are disposing of two complaint  cases,  as  detailed below, as both the complaints are having same controversy as well as similar questions of facts and law.

1.	CC No. 931 of 2017	Amarjit Singh Kang	Vs.	Unitech Ltd. and another
2.	CC No. 932 of 2017	Kuldeep Singh	Vs.	Unitech Ltd. and another

2.           The facts are being taken from the Complaint Case No. 931 of 2017– Amarjit Singh Kang Versus Unitech Ltd. and another.         
3.           In brief, the case of the complainant is that he was planning to start his own work to earn his livelihood and being educated in the field of IT, he planned to start his work in the field of software and hardware.  Believing the claims of the OPs, he purchased one shop i.e. Unit No.024A, Floor 1^st, measuring 195.33 sq. ft. for a total sale consideration of Rs.9,76,650/- in the project of the OPs known as Garden Galleria in Unitech Mohali (Uniworld City), Sector 106, Mohali vide agreement to sell dated 21.04.2011 (Annexure C-2). He was also issued allotment letter dated 21.04.2011 (Annexure C-1) in respect of the said shop.  It has been averred that the OPs assured at the time of booking the unit that the facilities i.e. roads, streetlights, electricity, sewerage connectivity and other facilities are complete and work will start in few days and the possession was promised to be delivered within 21 months complete in all respects.  According to the complainant, as per the payment plan, he was to pay 30% within 30 days and the rest was to be paid as per progress of the construction activity. So he paid an amount of Rs.4,10,960/- to the OPs vide receipts (Annexure C-4 to C-8) but they failed to start the construction till date due to which demand of further installments were not raised.  It has further been averred that the construction of the unit has not been started even after lapse of more than 6 years and the construction/development of the project is totally stopped without any reason.  It has further been averred that he has been cheated of his hard earned money by the OPs.  He is running pillar to post for refund of his hard earned money and has been approaching the OPs without any positive response. Finally, he got served a legal notice dated 14.11.2017 (Annexure C-9) upon the OPs but to no effect.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.
4.           In their written statement,  the OPs took the preliminary objections inter alia that this Forum does not have the jurisdiction to entertain and try the complaint as the Buyer Agreement was executed at New Delhi and the demands for payments have been raised from Gurgaon Office of the OP; that the complainant is simply a investor who invested in the said commercial unit for resale purposes and as such he does not fall within definition of the consumers, as defined under Section 2 (1) (d) of the Act; that in terms of Clause 4.5 of the Agreement,  it was stipulated that the developer shall be entitled for reasonable extension of time  in handing over the possession in case of force majeure circumstances beyond the control of the developer.  It has been pleaded that the OPs have been severely affected by the global recession in real estate market due to which they are facing utter financial hardships.  It has been pleaded that the period of 21 months of delivering the possession of the unit in question is tentative period which was subject to force majeure circumstances. The remaining averments are denied, being wrong. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint. 
5.           We have heard the learned counsel for the parties and have gone through the documents on record.
6.           The first preliminary objection of Counsel for the OPs that this Forum lacks territorial jurisdiction to entertain and decide the complaint needs to be rejected because in the complaint, the agreement in question was registered between the complainant and the OPs is having its Marketing Office at Unitech Ltd., SCO 189-90-91, Sector 17-C, Chandigarh and as such a cause of action has accrued to the complainant, at Chandigarh and therefore, this Forum has got territorial jurisdiction to entertain and decide the complaint and the objection of the OPs in this regard, being devoid of merit, must fail, and the same stands rejected.  Here our view is strengthened by the judgment of the Hon'ble State Commission passed in the case titled as Sanjeev Dhir  Vs.  Unitech Limited,  Complaint case No. 177 of 2016, decided on 01.08.2016, in which it was held as under:

9.       It is clearly mentioned that the Company has its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. Registered Office is situated at 6, Community Centre, Saket, New Delhi.  Be that as it may, as per documents placed on record by the opposite party, alongwith written statement, it becomes apparent that Marketing Office at Chandigarh/opposite party was responsible for development and marketing of the project, in question. Entire correspondence with the Authorities qua development of the project and getting necessary permissions were being taken up by the Officers of the opposite party,  posted at Chandigarh. Above fact makes it clear that the Branch Office at Chandigarh was substantially taking up the activities qua the project, in question. Copy of customer ledger account Annexure C-25 in respect of the unit, in question, was also issued by the opposite party at Chandigarh. In para no.1 of the preliminary submission, it is also mentioned that Marketing Office of the Company is situated at Chandigarh. Besides all above, it has been candidly admitted by the opposite party, in para no.24 of its reply on merits, that that all the payments were received from the complainant by Chandigarh Office of the Company. The Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839 held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. In view of fact of Marketing Office of  the opposite party at Chandigarh and also as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the  opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

7.           The second preliminary objection raised by the OPs that the complainant is not consumer as defined under the provisions of the Consumer Protection Act, 1986 also deserves to be rejected as they have failed to prove by leading any documentary evidence on record that the complainant had purchased the unit in question for resale purposes. Therefore, we have no hesitation to conclude that the complainant is a consumer as defined under section 2(i)(d) of the Consumer Protection Act.  Moreover, the possession of the unit in question has not been delivered to the complainant so far and, therefore, the question of resale for earning profit out of it does not arise at this stage.
8.           The third preliminary objection raised by the OPs that this Forum does not have the pecuniary jurisdiction also deserves to be rejected because the complainants have sought the refund of Rs.4,10,960/-  only  out of the total sale consideration of Rs.9,76,650/- and as such this Forum has got the pecuniary jurisdiction to adjudicate upon the instant complaint as per section 11 of the Consumer Protection Act, 1986.
9.           The next plea taken by the opposite parties regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their case, that they were ready with possession of the unit, to be delivered to the complainant, by the stipulated date but the complainant wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainant is rescinding the contract, as such, the complainant, is entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by the opposite parties, in this regard, has no legs to stand and is accordingly rejected.
10.           Admittedly, the possession of the unit, was not delivered to the complainant, by the stipulated date or even till date. Even, in the written version, the OPs have not stated that as to whether the construction of the area where the unit of the complainant  is situated has been completed as on date and as to when the possession of the unit in question was likely to be offered/delivered to the complainant.   It is also evident on record that the complainant has already paid the amount of Rs.4,10,960/- to the OPs and the rest of the amount was to be paid to the OPs as per the payment plan (Annexure A) attached with the agreement. The opposite parties were duty bound to complete the construction as per the terms of the agreement, irrespective of the recession in the market. We are of the considered view that the complainants cannot be made to wait for an indefinite period especially after the expiry of the stipulated period of the handing over the possession of the unit, in question, which in the present case stood expired in the year 2013.   Besides this, the OPs who are themselves failed to adhere to the terms of the agreement cannot be allowed to take the shelter thereof. The complainant was, thus, right in seeking the refund of the deposited amounts and non-refund thereof on the part of the OPs certainly amounts to deficiency in service, as also indulgence into unfair trade practice.

C.C. No.932/2017 titled as Kuldeep Singh Vs. Unitech Ltd. and another.

11.           In this complaint, the complainant purchased one shop i.e. Unit No.024B, Floor 1st, measuring 195.86 sq. ft. for a total sale consideration of Rs.9,79,300/- in the project of the OPs known as Garden Galleria in Unitch Mohali (Uniworld City), Sector 106, Mohali vide agreement to sell dated 26.04.2011 (Annexure C-2). He was also issued allotment letter dated 26.04.2011 (Annexure C-1) in respect of the said shop.  The complainant paid an amount of Rs.4,01,808/- to the OPs vide receipts (Annexure C-4 to C-7).
12.           In view of the foregoing discussion, we are of the opinion that both the complaints deserve to be allowed. The same are accordingly allowed. The Opposite Parties are jointly and severally  directed as under:-

1. To refund Rs.4,10,960/- in C.C. No.931/2017 and Rs.4,01,808/- in C.C. No.932/2017 to the respective complainants alongwith interest @ 9 % per annum from the respective dates of its deposit till realization;
2. To pay Rs.30,000/- as compensation for mental agony and harassment caused to each of the complainant;
3. To pay Rs.7,000/- as costs of litigation to each of the complainant. 

This order be complied with by the Opposite Parties jointly and severally, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall also carry penal interest @12% per annum from the date of this order till actual payment besides payment of litigation costs.

13.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

01.06.2018

 

 

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (S.K.SARDANA)

MEMBER