Chandigarh

StateCommission

CC/308/2017

Charan Kamal Singh Ahuja - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma Adv.

16 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	308 of 2017
Date of Institution	:	10.04.2017
Date of Decision	:	16-Aug-17

 

Charan Kamal Singh Ahuja son of Sh.G.S. Ahuja, resident of G-24, First Floor, Saket, New Delhi-110017.

…… Complainant

 

V e r s u s

1. Unitech Limited, through its Chairman, Sh.Ramesh Chandra, having its Registered Office at 6, Community Center, Saket, New Delhi-110017.
2. Unitech Limited, through its Managing Director, Sh.Ajay Chandra, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Director, Sh.Sanjeev Hingorani, having its Registered Office at Basement 6, Community Center, Saket, New Delhi-110017.

…. Opposite parties

 

Argued by:-      Sh.Sanjeev Sharma, Advocate for the complainant         Mrs.Vertika H.Singh, Advocate for opposite parties   no.1 and 2.

                        Opposite party no.3 exparte.

=======================================================

Complaint case No.	:	309 of 2017
Date of Institution	:	10.04.2017
Date of Decision	:	16-Aug-17

 

Mukesh Sharma son of Sh.Prakash Chand Sharma, resident of Ganga Glitz Society, Flat H-104, Kad Nagar, Undri, Pune, Maharashtra 411060.

…… Complainant

 

V e r s u s

1. Unitech Limited, through its Chairman, Sh.Ramesh Chandra, having its Registered Office at 6, Community Center, Saket, New Delhi-110017.
2. Unitech Limited, through its Managing Director, Sh.Ajay Chandra, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Director, Sh.Sanjeev Hingorani, having its Registered Office at Basement 6, Community Center, Saket, New Delhi-110017.

…. Opposite parties

 

Argued by:-      Sh.Sanjeev Sharma, Advocate for the complainant         Mrs.Vertika H.Singh, Advocate for opposite parties   no.1 and 2.

                        Opposite party no.3 exparte.

=======================================================

Complaint case No.	:	310 of 2017
Date of Institution	:	10.04.2017
Date of Decision	:	16-Aug-17

 

1. Manoj Sanwaria son of Sh.Sher Singh resident of 1605, Jamaica, Nahar Amrit Shakti, Chanidvali, Mumbai-400072.
2. Ritu Rajora wife of Sh. Manoj Sanwaria resident of 1605, Jamaica, Nahar Amrit Shakti, Chanidvali, Mumbai-400072.

 

…… Complainants

 

V e r s u s

1. Unitech Limited, through its Chairman, Sh.Ramesh Chandra, having its Registered Office at 6, Community Center, Saket, New Delhi-110017.
2. Unitech Limited, through its Managing Director, Sh.Ajay Chandra, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Director, Sh.Sanjeev Hingorani, having its Registered Office at Basement 6, Community Center, Saket, New Delhi-110017.

…. Opposite parties

 

Argued by:-      Sh.Sanjeev Sharma, Advocate for the complainant         Mrs.Vertika H.Singh, Advocate for opposite parties   no.1 and 2.

                        Opposite party no.3 exparte.

 

Complaints under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of aforesaid three consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. At the time of arguments, on 10.08.2017, it was also agreed by the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, all the three complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from consumer complaint bearing no.308 of 2017 titled as Charan Kamal Singh Ahuja Vs. Unitech Limited and others. The facts in brief are that, allured by many advertisements made by the opposite parties regarding salient features of their project, namely Unihomes, Uniworld City, Sector 107, Mohali, Punjab, the complainant moved an application on 30.09.2009, for purchase of a flat. With the said application, an amount of Rs.2 lacs and Rs.7,643/-, was paid by him, as booking amount. Resultantly, vide allotment letter dated 30.09.2009, he was allotted flat bearing no.0016, Block No.A, Floor  No.1, measuring 1077 square feet, in the said project. Total price of the said flat was fixed at Rs.23,38,062/-, which included preferential location charges, external development charges, etc. It was stated that Buyer’s Agreement was executed between the parties, on 20.10.2009. As per Clause 4(a) of the Agreement, possession of the built-up flat was agreed to be delivered within 36 months, from the date of signing of the above said Buyer’s Agreement i.e. on or before 19.10.2012.
3.         On demands raised from time to time, the complainant had paid total amount of Rs.4,43,192/-, to the opposite parties, by December 2009. However, later on, it transpired that the opposite parties were not in possession of title of the land, wherein the flat bearing no.0016, was allotted to the complainant.
4.         It is case of the complainant that he took up the matter, with the opposite parties, a number of times, but they succeeded to linger on the matter, till the year 2014. Ultimately, it was admitted by the opposite parties, that the land, in question, wherein flat bearing no.0016 was allotted to him, was under dispute. The complainant was asked to write a letter, for relocation from existing flat, to flat bearing no.0007, Block B, Second Floor, measuring 1077 square feet, in the same project. Total sale consideration of the said flat was fixed at Rs.23,65,899/-. As such, under compelling circumstances, the complainant wrote letter dated 29.08.2014 Annexure C-4, for relocation aforesaid. It was averred that by 29.08.2014, the complainant had paid an amount of Rs.18,55,949/-, towards price of the said unit.
5.         It is case of the complainant that the relocation to flat bearing no.0007,  was done by the opposite parties, of their own fault, however, without any justification, fresh Buyer’s Agreement dated 09.09.2014 was got signed from the complainant under duress, in respect of relocated flat, referred to above. As per Clause 4 (a) of the Agreement dated 09.09.2014, the opposite parties committed to hand over possession of the relocated unit, within a period of 12 months, i.e. on or before 08.09.2015. However, possession of the relocated unit was also not offered by the stipulated date or thereafter. Physical visits to the site reveal that construction and development work has been stopped, without any reason. Basic amenities, such as roads, electricity, water etc. were not even in existence at the site. Despite numerous requests having been made to the opposite parties, they failed to do the needful, by offering possession of built-up unit to the complainant. Number of requests made by the complainant, to the opposite parties, to apprise him about status of the project, did not yield any result. Various emails exchanged between the parties, to know about completion of construction work and date of delivery of possession of the unit, the request made did not yield any positive result. Every time, bald assurances were given by the opposite parties. It was averred that the aforesaid acts of the opposite parties amounted to indulgence into unfair trade practice and deficiency in providing service to the complainant. Even financial loss has been caused to the complainant, as in the absence of delivery of possession of the unit, by the stipulated period, he is being forced to stay in a rented accommodation, for which, he is paying huge amount of rent.
6.         By stating as above, the instant complaint has been filed by the complainant with a prayer to issue directions to the opposite parties to handover possession of the unit, in question, complete in all respects; interest on the deposited amount for the period of delay; pay the amount of rent, to the extent of Rs.70,000/- p.m., compensation for mental agony & physical harassment and cost of litigation; or in the alternative to refund the amount paid, alongwith interest; compensation, litigation expenses etc.
7.         However, at the time of preliminary hearing, on 19.04.2017, Counsel for the complainant confined his prayer only qua grant of possession of the unit, with consequential benefits.
8.         Notice in this complaint was issued on 19.04.2017, for 22.05.2017, on which date, Mrs.Vertika H.Singh, Advocate, put in appearance on behalf of opposite parties no.1 and 2 and filed her memorandum of appearance. She sought time to file reply and evidence. On the said date, since notice qua service to opposite party no.3 sent through registered cover was not received back, as such, the complaint was adjourned to 15.06.2017, for awaiting its service and also for filing reply and evidence on behalf of opposite parties no.1 and 2. On the date fixed, since despite deemed service, none had put in appearance on behalf of opposite party no.3, it was proceeded against exparte, by this Commission, by invoking the provisions of Regulation 10 (2) of the Consumer Protection Regulations 2005.
9.         Opposite parties no.1 and 2 filed their joint written statement, wherein, an attempt has been made to wash of their hands, by stating that the Buyer’s Agreements, referred to above, were signed between them, opposite party no.3 and the complainant, and as per Developer`s Agreement, opposite party no.3 only, was to construct the flats and hand over possession thereof, to the purchasers. As opposite party no.3 has failed to do so, as such, no liability can be imposed upon opposite parties no.1 and 2. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreements were signed at New Delhi and also all the payments were received by Gurgaon Office of the opposite parties. Opposite parties no.1 and 2 were only facilitating the complainants. Pecuniary jurisdiction of this Commission was also disputed. It was asserted that the complainant being investor, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was averred that the complaint filed is beyond limitation.

                On merits, it was admitted that the complainant had purchased the residential unit, in question, in the manner, referred to above. Relocation of the unit, and also execution of two Agreements, in the manner, referred to above, were also not disputed. It was pleaded that the complainant was relocated, because of request, having been made by him.  Payments made by the complainant are not disputed. Fact qua price of the unit, as mentioned in the complaint was also not controverted. It was stated that Chandigarh Office of the opposite parties no.1 and 2 being service provider, was providing various facilities to the purchasers, including the complainant, on behalf of opposite party no.3. Amount collected from the complainant, was deposited in the designated account of opposite party no.3. It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, possession of the fully constructed unit, was to be delivered to the complainant, within the stipulated period, as mentioned in the complaint, subject to force majeure condition. It was further stated that the developer was entitled to reasonable extension of time for delivery of possession of the unit, on account of force majeure circumstances. The said period was extendable and till such time, the sale deed is executed. Opposite party no.3 was also authorized to use Unitech Trade Mark and Corporate Logo, for various purposes, such as promotional, marketing, advertisements etc. It was stated that in terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seek refund of the amount deposited, the developer is at liberty to forfeit the booking/earnest amount, out of the deposited amount, as the case may be. It was further stated that since it was opposite party no.3, which was to construct the units and deliver possession of the same, as such, no liability could be fastened upon opposite parties no.1 and 2, as they were only the confirming parties. It was stated that requisite permissions/approvals in respect of the said project had been obtained by the opposite parties. It was pleaded that delay caused, if any, was on the part of issuance of approvals, by the PSPCL and GMADA. It was averred that the opposite parties have applied for partial completion certificate, in respect of the project, in question. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.

10.         The contesting parties, in all the three complaints, led evidence in support of their cases and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
11.         We have heard Counsel for the contesting parties and have gone through the evidence and record of the cases, very carefully.
12.         Before making any reference to the merits of the case, we would like to decide an objection raised by the opposite parties no.1 and 2 that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  It is necessary to mention here that, as per admitted facts, the complainant has ultimately, sought possession of the flat, in question, total cost whereof, is Rs.23,65,899/-; interest @18% compounded quarterly  on the amount deposited, for the period of delay; amount of rent @Rs.70,000/- per month, from 2013 onwards; compensation to the tune of Rs.7 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.1 lac, aggregate value whereof, if added, falls above Rs.20 lacs and below Rs.1 crore. In no way, the relief claimed, exceeds Rs.1 crore. In view of above, objection raised by Counsel for the opposite parties no.1 and 2, stands rejected.
13.         The contention of Counsel for opposite parties no.1 and 2 that this Commission lacks territorial jurisdiction to entertain and decide the complaint, needs to be rejected. It is contended by Counsel for  opposite parties no.1 and 2 that Buyer’s Agreement was signed at New Delhi; demands in respect of making payment towards price of the unit, were also raised by Gurgaon office of the opposite parties, no cause of action has accrued  to the complainant, within the territory of this Commission, as such, it is not open to this Commission, to adjudicate the claim raised by the complainants.

                We are not going to agree with the contention raised. Such an issue was raised earlier also by the opposite parties no.1 and 2, in large number of cases filed against them, before this Commission and in case of Mr.Om Parkash Dua and ors. Vs. Unitech Limited and another, consumer complaint bearing no.205 of 2016, decided on 22.08.2016, the said issue was decided as under:-

 

“Contention of Counsel for opposite party no.1 that this Commission has got no territorial Jurisdiction, to entertain and decide the complaint deserves to be rejected. According to Section 17 of the Act, a consumer complaint could be filed by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants. It is apparent on record that the Marketing Office of opposite party no.1 is situated at SCO No.189-90-91, Sector 17-C, Chandigarh. In the Buyer’s Agreement dated 28.10.2009, description of opposite party no.1 is given as under:-

 

“UNITECH LIMITED, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh and its Registered Office at 6, Community Centre, Saket, New Delhi 110017 (hereinafter referred to as Unitech/Confirming Party) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its executors, administrators, successors and assigns) acting through its authorized signatory”

 

It is clearly mentioned that the Marketing Office of opposite party no.1 is situated at SCO 189-90-91, Sector 17-C, Chandigarh. It has been earlier noticed by this Commission, in the case of Sanjeev Dhir  Vs.  Unitech Limited,  Complaint case No. 177 of 2016, decided on 01.08.2016, that it was the Marketing Office of opposite party no.1 situated at Chandigarh, which was responsible for development and marketing of the project, in question. Taking note of information placed on record, in the above case, it was observed as under:-

 

“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.”

 

Not only as above, payment of Rs.1,36,695/- vide cheque dated 21.07.2012, was received by the Regional Office of opposite party no.1, at Chandigarh. Photocopy of the cheque with receipt given is available at page 36 of the paper book. Facts narrated above, clearly goes to show that a part of action has accrued to the complainants at Chandigarh i.e. within the territory of this Commission, as such, this Commission has got territorial jurisdiction to entertain and decide the complaint.”

               Similar view was reiterated by this Commission in a case titled as Amit Kohli and another Vs. Unitech Limited and Ors., complaint case no.210 of 2016, decided on 01.09.2016 and also in Manmohan Sandhu Vs. Unitech Limited and ors., Complaint Case no.284 of 2016, decided on 07.10.2016 (02 connected cases) and thereafter also, in number of similar cases.

                Not only as above, in the present case also, it is specifically stated that opposite parties no.1 and 2 are the Public Limited Company having their Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. At the same time, it has been candidly admitted by opposite parties no.1 and 2, in their joint written reply that payments were received by them, from the complainant, in respect of the unit, in question. Further, it was also clearly admitted by opposite parties no.1 and 2, in their joint written version that they being service providers, were providing facilities to the purchasers, including the complainant. This admission of opposite parties no.1 and 2, is sufficient to prove that they were actively marketing the project, in question, from their Chandigarh office and have received payment in respect of the unit, in question, from the complainant at that Office. Furthermore, even customer ledger was issued in respect of the complainant (at page 71 of the file) from Chandigarh Office of opposite parties no.1 and 2. In view of fact of Marketing Office of opposite parties no.1 and 2 at Chandigarh and also as per the documents, referred to above, issued from Chandigarh Office of the Company, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  Contention raised by Counsel for  opposite parties no.1 and 2, in this regard, being devoid of merit, is rejected.

14.         To defeat claim of the  complainant, another objection was raised by Counsel for the opposite parties no.1 and 2, that the complainant is a speculator, as he has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, she would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act.

                It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. On the other hand, the complainant, in paragraph no.2 of his complaint has specifically stated that the unit, in question, was purchased by him, for his residential purpose. Furthermore, even, as per the statement of Counsel for the complainant, referred to above, the complainant is still interested in seeking possession of the unit, in question. In the absence of any cogent evidence, in support of the objection raised by the opposite parties no.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the  opposite parties no.1 and 2, being devoid of merit, is rejected.  

15.         Another objection was raised by Counsel for the  opposite parties no.1 and 2 that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of the opposite parties, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the  Agreement dated 09.09.2014, the  opposite parties were liable to deliver physical possession of the built-up flat, within a period of 12 months, from the date of execution of the same (Agreement) i.e. on or before 08.09.2015, alongwith all basic amenities as mentioned in Article 2.a.(iii) of the Agreement. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls fall within the definition of a consumer. In this view of the matter, the objection raised by Counsel for the  opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

16.         It is apparent on record that, in the first instance, Agreement in respect of flat bearing no.0016, Block No.A, Floor  No.1, measuring 1077 square feet, was executed between the parties on 20.10.2009 and admittedly, as per terms and conditions of that agreement, possession of the said unit was to be delivered within a period of 36 months i.e. on or before 19.10.2012. However, later on, the said agreement was substituted by an Agreement dated 09.09.2014, and the complainant was relocated to flat bearing no. no.0007, Block B, Second Floor, measuring 1077 square feet, in the same project, possession whereof, as per Clause 4(a) of that agreement, was to be delivered within 12 months, i.e. on or before, 08.09.2015. No doubt, it was submitted by Counsel for the complainant that the complainant was relocated to flat bearing no. no.0007, Block B, because the land on which original flat allotted to him was under dispute, as a result whereof, he was relocated. However, there is nothing on record to show that, at the time of relocation, the complainant raised any protest to that effect. Be that as it may, since, admittedly, fresh agreement dated 09.09.2014 was signed by the complainant, without any protest, as such, the date of delivery of possession has to be taken as 08.09.2015 i.e. 12 months from 09.09.2014, as agreed to between the parties, vide Clause 4 (a), aforesaid, of the said Agreement.  

                However, the opposite parties even failed to discharge their promise made vide Agreement dated 09.09.2014. Possession of the relocated unit was also not offered and delivered to the complainant by the stipulated date or even till date. More than 80% of amount towards price of the unit stood paid. At the time of arguments, Counsel for the opposite parties has failed to commit about the period within which, possession of the relocated unit can even now be delivered. It was casually said that possession is likely to be delivered within next one year. It was also admitted by her that even as on today, occupation certificate and also partial/completion certificate, are not available with the opposite parties.

                In the written version, opposite parties no.1 and 2,  have tried to shift blame for delay in completing the project, on the Punjab State Power Corporation Limited (PSPCL) and Greater Mohali Area Development Authority (GMADA). It is very strange that not even a single document, has been placed on record, by the opposite parties, to prove their stand of causing delay in delivery of possession, on the part of said Govt. Authorities. If there was alleged delay on the part of the Govt. Authorities aforesaid,  in issuance of approvals/sanctions, opposite parties no.1 and 2 were required to place on record, some cogent and convincing evidence, in the shape of letters/communication exchanged between them and the said Authorities, to that effect, but nothing sort of that is on record.  The opposite parties, therefore, cannot take shelter under Article 8.b. of the Agreement dated 09.09.2014, for extension of period, for delivery of possession of the unit.

                By making a misleading statement, that  possession of the relocated unit, would be delivered within a period of 12 months, from the date of execution of the Agreement dated 09.09.2014 but on the other hand, by not abiding by the commitments made, the opposite parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

                In view of above, the opposite parties are also liable to pay compensation to the complainant, for causing mental agony, physical harassment and deficiency in providing service.

17.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the relocated unit, in question, could not be made till date for want of construction and development work, as such, there is continuing cause of action, in favour of the complainant, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for  the opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.
18.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to delivery of possession of the relocated flat bearing no.0007, Block B, Second Floor, measuring 1077 square feet. As stated above, possession of the unit, in question, was to be delivered on or before 08.09.2015  i.e. within 12 months, from the date of execution of the Agreement dated 09.09.2014. However, as stated above, it is an admitted fact that possession of the unit, in question, has not been offered, by the date of filing the instant complaint, or even till date, for want of construction, development and basic amenities at the site. The complainant had made payment of substantial amount equal to about 80% of the total price of the unit. The complainant is certainly entitled to delivery of physical possession of the relocated unit bearing no.0007, Block B, Second Floor, measuring 1077 square feet, in the said project.
19.         What relief can be granted to a consumer, in case of delay in offering possession of residential unit purchased, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

 

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                  Not only this, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Taking note of above said proposition of law, in the present case also, ends of justice would meet, if interest is granted for delayed period, to the complainant whereof 08.09.2015 (committed date), till possession is actually delivered to him.

20.         As far as the liability of  opposite parties no.1 and 2, is concerned, it may be stated here that once it has been proved on record that  opposite parties no.1 and 2 were necessary parties to the Agreement; they also admittedly being service providers marketed the project, in question; and had also received payments from the complainant, towards the said unit, as such, they are equally liable alongwith opposite party no.3, as far as the outcome of this complaint is concerned.

                Furthermore, the National Commission, in a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016, has held that even the marketing agency, who sells out a project, if found deficient, at any stage and the project is not completed, as per commitment made, has to face the consequences of duping the gullible buyers, of their hard-earned money. As such, the objection raised by Counsel for opposite parties no.1 and 2, to the effect that they being only confirming parties are not liable for anything, being devoid of merit, stands rejected.

21.         Now coming to the plea taken by opposite parties no.1 and 2, regarding forfeiture of earnest money, it may be stated here that the same stands infructuous, in view of the statement given by Counsel for the complainant, confining the prayer, only qua grant of possession of the unit, in question, with consequential benefits. Even otherwise, it is not the case of the opposite parties that they were ready with possession of the unit, to be delivered to the complainant, by the stipulated date but it was the complainant, who did not come forward and is lingering on the matter, on one pretext or the other. In this view of the matter, the plea taken by opposite parties no.1 and 2, in this regard, has no legs to stand and is accordingly rejected.
22.         No other point, was urged, by Counsel for the contesting parties, in all the three complaints.
23.         For the reasons recorded above, all the three complaints, are partly accepted, with costs. Opposite parties no.1 to 3, through Sh.Ramesh Chandra, Chairman, Sh.Ajay Chandra, Managing Director of Unitech Limited and Sh.Sanjeev Hingorani, Director of Alice Developers Pvt. Limited, are jointly and severally, directed, as under:-

In Consumer Complaint bearing No.308 of 2017:-

1. To hand over physical possession of the unit, in question, to the complainant, within a period of 6 (six) months, from the date of receipt of certified copy of this order, complete in all respects,  after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from him (complainant).
2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by him to the Registering Authorities.
3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 08.09.2015 (promised date) to 31.07.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, w.e.f. 01.08.2017, onwards (per month), till delivery of possession, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1 lac, on account of mental agony, physical harassment, caused to the complainant and deficiency in providing service, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
6. To pay cost of litigation, to the tune of Rs.22,000/-  to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

In Consumer Complaint bearing No.309 of 2017:-

1. To hand over physical possession of the respective unit, to the complainant, within a period of 6 (six) months, from the date of receipt of certified copy of this order, complete in all respects,  after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from him (complainant).
2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by him to the Registering Authorities.
3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 25.07.2013 (promised date) to 31.07.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, w.e.f. 01.08.2017, onwards (per month), till delivery of possession, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1 lac, on account of mental agony, physical harassment, caused to the complainant and deficiency in providing service, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
6. To pay cost of litigation, to the tune of Rs.22,000/-  to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

In Consumer Complaint bearing No.310 of 2017:-

1. To hand over physical possession of the unit, in question, to the complainants, within a period of 6 (six) months, from the date of receipt of certified copy of this order, complete in all respects,  after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from them (complainants).
2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainants, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 22.10.2012 (promised date) to 31.07.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, w.e.f. 01.08.2017, onwards (per month), till delivery of possession, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1 lac, on account of mental agony, physical harassment, caused to the complainants and deficiency in providing service, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
6. To pay cost of litigation, to the tune of Rs.22,000/-  to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

24.         Certified Copies of this order be placed in connected files.
25.         Certified Copies of this order be sent to the parties, free of charge.
26.         The file be consigned to Record Room, after completion.

Pronounced.

16-Aug-17 _

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 Rg.