
View 2284 Cases Against Unitech
Jatinder Pal Singh filed a consumer case on 28 Sep 2017 against Unitech Limited in the StateCommission Consumer Court. The case no is CC/447/2017 and the judgment uploaded on 29 Sep 2017.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 447 of 2017 |
Date of Institution | : | 25.05.2017 |
Date of Decision | : | 28.09.2017 |
…… Complainants.
Versus
....Opposite Parties.
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: MR. DEV RAJ, PRESIDING MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:- Sh. Sanjeev Sharma, Advocate for the complainants.
Mrs. Vertika H.Singh, Advocate for Opposite Parties No.1 & 3.
Opposite Parties No.5 & 6 exparte vide order dated 07.07.2017.
Opposite Parties No.2 & 4 exparte vide order dated 29.08.2017.
PER DEV RAJ, PRESIDING MEMBER.
The facts, in brief, are that the complainants applied for an Independent Floor in the project of the Opposite parties, i.e. Uniworld City, Sector 107, Mohali, Punjab vide application form dated 15.03.2010 (Annexure C-1) and paid a sum of Rs.2,33,123/- to the Opposite Parties vide various cheques. They were allotted Apartment No.0051 on Second Floor in Block A admeasuring 100.06 Sq. Mtrs (1077 sq. ft. approx) in the said Project, for total consideration of Rs.24,42,854/-, which included basic sale price of Rs.23,31,227/-, EDC/IDC of Rs.1,11,627/- besides payment of Rs.60,000/- on account of club charges. Buyer’s Agreement was executed between the parties on 09.04.2010. As per Article 4(a) of the Agreement, the Opposite Parties were to deliver possession of the unit, in question, to the complainants, within a period of 36 months, from the date of signing the same (Agreement) i.e. by 08.04.2013. It was further stated that at the time of execution of the Agreement, when enquired about the requisite permissions/approvals, layout plans, availability of water and electricity connections, the Opposite Parties failed to provide the necessary information and it was verbally assured that all the permissions/approvals were in place and they have got electricity connection/load sanctioned for their project and they would get occupation certificate/completion certificate by the year 2012. It was further stated that the Opposite Parties did not have the possession of the land and they did not have the clear title of the land wherein Block-A was situated. It was further stated that the complainants took loan from HDFC Bank in the sum of Rs.18,40,000/- and a Tripartite Agreement was got signed on 03.06.2010. It was further stated that the complainants are paying an EMI of Rs.12,652/- per month to the said Bank. It was further stated that the complainants had paid a sum of Rs.21,83,004/- to the Opposite Parties, out of which, Rs.6,92,744/- was paid by the complainants and Rs.14,90,260/- by HDFC Bank. It was further stated that more than 90% of the amount towards the price of the unit, in question, has been paid but the Opposite Parties did not start construction/development at Block-A wherein flat in question was allotted to the complainants. It was further stated that the Opposite Parties in December 2016 had accepted that due to unforeseen circumstances, the project had been delayed and also confirmed that project could not be completed in near future. It was stated that despite lapse of more than 7 years from the date of execution of Buyer’s Agreement, the Opposite Parties failed to offer possession till date whereas possession was to be handed over in 2013. It was further stated that despite their requests, neither the Opposite Parties refunded the amount alongwith 18% interest nor agreed to delayed penalty/compensation to the complainants as per binding terms and conditions for the delayed period. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund Rs.21,83,004/- alongwith interest @18% per annum, from the date of deposit, pay Rs.5,00,000/- as compensation on account of mental agony/torture and physical harassment & deficiency in services, malpractices & unfair trade practices besides Rs.55,000/- as litigation/Counsel fee and any other relief, which this Commission deemed fit in the facts and circumstances of the case.
2. Opposite Parties No.1 & 3, in their joint written statement, took up certain preliminary objections, to the effect that this Commission has no territorial jurisdiction to adjudicate upon the present case as the Buyer’s Agreement was executed between the parties at New Delhi and moreover, all the demands for payments were raised by the Gurgaon office of Opposite Parties No.1 & 3 on behalf of Alice Developers Pvt. Ltd. and receipts thereof were also issued by Gurgaon office and further the property, in dispute, is located at Mohali; that Buyer’s Agreement dated 09.04.2010 was executed between Opposite Party No.5 and the complainants. Unitech Ltd. was only a confirming party to the said Agreement as was clearly stipulated in the said agreement and further as per the Agreement, the Developer was authorized to use the Unitech Trademark and Unitech Corporate Logo for various purposes such as promotional, marketing, advertisements, brochures, hoarding etc. and, thus, Opposite Parties No.1 & 3 had limited role qua the Buyer’s Agreement dated 09.04.2010 and grievance, if any, regarding delay in construction work of the said flat should have been made against the developer – Opposite Party No.5 and not against Opposite Parties No.1 & 3; that the facts narrated in the complaint do not constitute consumer dispute as defined in Section 2(e) of the Act 1986; the issues raised being of contractual nature arising out of the terms and conditions of the Agreement, could only be adjudicated in civil proceedings; that the complainants, being investors, just want to wriggle out of the transaction and on one pretext or the other are trying to seek refund of the amount paid by them and that the present complaint was not maintainable as no cause of action has arisen in favour of the complainants against Opposite Parties No.1 & 3.
3. On merits, it was stated that Opposite Parties No.1 & 3 had only iterated to the complainants the details of the project as per instructions of Opposite Party No.5. It was further stated that the complainants themselves invested in the said unit as they had found it to be a profitable investment keeping in view the resale value of the property and they never bought it for their own residential use but simply invested for speculation purpose to mint profit after reselling the said unit in open market. It was further stated that no assurance was ever given to the complainants regarding possession of the unit since the possession was to be given by Opposite Party No.5. It was further stated that the cheques were received by the Chandigarh office only as a facilitator on behalf of Opposite Party No.5, which were subsequently deposited in the account of Opposite Party No.5. It was further stated that allotment letter dated 15.03.2010 was issued by the answering Opposite Parties only on behalf of Opposite Party No.5. It was further stated that it was the sole responsibility of Opposite Party No.5 to hand over possession of the unit within the tentative time frame of 36 months and in case of force majeure circumstances beyond the control of developer, the developer was entitled to reasonable extension of time in handing over of possession. It was further stated that the payments were demanded by Opposite Parties No.1 & 3 only on behalf of Opposite Party No.5. It was further stated that Opposite Parties No.1 & 3 have all the required approvals for the project and have also applied for partial completion of the project vide letter dated 03.02.2016 (Annexure OP 1/3). It was further stated that as per Clause 2(e) of the Agreement, it was mutually agreed that in case, at any stage, the allottee seeks cancellation of allotment and/or refund of the deposited amount, the developer may at its discretion forfeit the booking/registration amount or the earnest money as the case may be and apartment allottee shall be left with no right or lien on the said apartment. It was further stated that as per Clause 4(e) of the Agreement, in case of failure to offer the apartment, as agreed, the developer may offer the apartment allottee property or refund of the amount paid in full with interest @10% p.a. from the date of payment made without any further liability to pay any damages, charges or compensation. It was further stated that hence on any account, Opposite Parties No.1 & 3 were not liable for the refund or any kind of compensation to be paid to the complainants. It was admitted that since possession was to be handed over by Opposite Party No.5 by 09.04.2013, hence, there is a delay of 4 years approximately. It was further stated that Opposite Parties No.1 & 3 were neither deficient, in rendering service nor they indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.
4. It may be stated here that notice in this complaint was issued on 29.05.2017, on which date, Sh. Savinder Singh Gill, Advocate appeared and stated that he had been asked by Mrs. Vertika H. Singh, Advocate, to accept notice on behalf of Opposite Parties No.1 to 4. Accordingly, he accepted notice on behalf of Mrs. Vertika H. Singh, Advocate for Opposite Parties No.1 to 4 and undertook to file Vakalatnama on the next date of hearing i.e. 07.07.2017. Notice to Opposite Parties No.5 & 6 was also issued for the date fixed. On 07.07.2017, since none appeared on behalf of Opposite Parties No.5 & 6, in terms of Regulation 10(2) of Consumer Protection Regulations 2005, they were deemed to have been served and were proceeded against exparte. On the next date of hearing 01.08.2017, Sh. Ramnik Gupta, Advocate appeared as proxy for Mrs. Vertika H. Singh, Advocate on behalf of Opposite Parties No.1 to 4. However, on the next date of hearing i.e. 29.08.2017, Mrs. Vertika H. Singh, Advocate placed on record Vakalatnama, written statement and evidence/affidavit only on behalf of Opposite Parties No.1 & 3 and stated that she had no instructions qua Opposite Parties No.2 & 4. She further stated that Opposite Party No.4 was in the know of pending proceedings of this complaint and she had communicated Opposite Party No.2 about the date fixed. Holding that they were deliberately avoiding to put in appearance, Opposite Parties No.2 & 4 were proceeded against exparte vide order dated 29.08.2017.
5. The complainants and Opposite Parties No.1 & 3 led evidence in support of their cases, by way of filing their respective affidavits, alongwith which, number of documents were attached.
6. We have heard the Counsel for the complainants and the Counsel for Opposite Parties No.1 & 3 and have gone through the record carefully.
7. The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arises. In the instant case, it is evident, on record that payments by way of cheques (Annexure C-4 colly.) (at pages 57 to 65 of the file) were received by the Regional Office of Opposite Parties No.1 & 3, at Chandigarh i.e. “Unitech Ltd., Regional Office, SCO 189-191, Sector 17-C, Chandigarh-160017”. Not only this, Opposite Parties No.1 & 3, in Para 3 of their written statement, on merits, admitted that the cheques were received by the Chandigarh office on behalf of Opposite Party No.5, which were subsequently deposited in the account of Opposite Party No.5. Since, as per the documents, referred to above, and as admitted, a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by Opposite Parties No.1 & 3, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
8. The next objection raised by Opposite Parties No.1 & 3 was that since Buyer’s Agreement dated 09.04.2010 was executed between Opposite Party No.5 and the complainants and Unitech Ltd. being only a confirming party to the said Agreement had limited role, and grievance, if any, regarding delay in construction work of the said flat should have been made against the developer – Opposite Party No.5 and thus, the present complaint is not maintainable. It may be stated here that it is admitted case of Opposite Parties No.1 & 3 that they marketed the project, in question and had also received the payments from the complainants. Not only this, once Opposite Parties No.1 & 3 authorised the Developer (Opposite Party No.5) to use their (Unitech) Trademark and Corporate Logo for various purposes such as promotional, marketing, advertisements, brochures, hoarding etc., they cannot be allowed to shift onus of their liability on Opposite Party No.5. The plea, therefore, being devoid of any force stands rejected.
9. The next objection raised by Opposite Parties No.1 & 3 was that the present complaint does not constitute consumer dispute as defined in Section 2(e) of the Act 1986 and thus, the issues raised being of contractual nature arising out of the terms and conditions of the Agreement, could only be adjudicated in civil proceedings. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit, in the manner, referred to in Buyer’s Agreement. As per Article 4.a.(i) of the Buyer’s Agreement dated 09.04.2010, the Opposite Parties were to offer possession of the floor, in question, within a period of 36 months of signing of the same (Agreement) i.e. latest by 08.04.2013, 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 complainants have 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 them, as they fall within the definition of consumer. In this view of the matter, the objection of Opposite Parties No.1 & 3, in this regard, being devoid of merit, must fail, and the same stands rejected.
10. To defeat claim of the complainants, another objection raised by Opposite Parties No.1 & 3, was that the complainants are speculators, as they 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, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here that there is nothing, on the record to show, that the complainants are property dealer(s), and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 3, 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. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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, Revision Petition No. 3861 of 2014, decided on 26.08.2015. 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 complainants, by way of investment, with a view to earn profit, in future. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 & 3, in their written reply, therefore, being devoid of merit, is rejected.
11. The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainants. According to Article 4.a.(i) of the Agreement (Annexure C-3), in the first instance, the Opposite Parties, were to hand over possession of the unit, in question, to the complainants, within a period of 36 months, from the date of execution of the same (Agreement) i.e. by 08.04.2013. Admittedly, possession of the unit, was not delivered to the complainants, by 08.04.2013 or even till date. In their written statement, Opposite Parties No.1 & 3, tried to escape their liability by stating that it was the sole responsibility of Opposite Party No.5 to develop the site and hand over physical possession of the unit, in question, to the complainants and, therefore, no deficiency in rendering service is attributable to them. It may be stated here that as per their own admission, Opposite Parties No.1 & 3 received the entire amount towards the sale consideration of the unit, in question, from the complainants. This plea of Opposite Parties No.1 & 3 when they received all payments is of no significance and they cannot be absolved of their responsibility for not honouring their commitment to hand over the possession of the unit, in question. Since the entire amount was paid to them by the complainants, they cannot shift entire liability on Opposite Party No.5. The commitment date to hand over the possession was up-to 08.04.2013. There is, thus, inordinate delay of 4 years 5 months in offering possession. Even partial completion certificate has not been obtained by the Opposite Parties, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the unit. Admittedly, the Opposite Parties had already received around 95% of the sale consideration of the unit, in question, from the complainants. Further the Opposite Parties cannot take shelter under Clause 8.b. of the Agreement, for extension of period, for delivery of possession of the unit as no such plea of force majeure has been raised in the written statement nor any cogent and convincing evidence has been placed on record to establish the same, which prevented Opposite Parties No.1 & 3 to offer/deliver possession of the unit, in question, to the complainants within the stipulated period. By making a misleading statement, that the possession of unit, in question, would be, in the first instance, offered/delivered within a period of 36 months, from the date of execution of the Agreement (Annexure C-3) 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. It may be stated here that this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, while relying upon the judgments rendered by the Hon’ble National Commission, held as under:-
“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-
“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.
The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.
It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. In the instant case, there is already delay of more than 4 years in not offering possession and possession of the allotted unit, has not been offered/delivered till date, which amounted to deficiency, in rendering service, and also indulgence into unfair trade practice on the part of Opposite Parties.
12. The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.21,83,004/-, deposited by them. It is an admitted fact that the Opposite Parties are unable to deliver possession of the unit, in question, and no firm date of delivery of possession of the unit, has been given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the Opposite Parties failed to prove, by placing on record, any cogent and convincing material, that they encountered any force majeure circumstances, as a result whereof, possession of the unit, in question, was delayed. The Opposite Parties, therefore, have no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are, thus, entitled to get refund of amount deposited by them.
13. As far as the plea taken by Opposite Parties No.1 & 3 regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the Opposite Parties, that they were ready with possession of the constructed unit, to be delivered to the complainants, by the stipulated date i.e. 08.04.2013, but it were they (complainants) who wanted to rescind the contract, on account of some inevitable circumstances/financial constraints or for any personal reason, and are 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 complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Parties No.1 & 3, in this regard, has no legs to stand and is accordingly rejected.
14. In view of above, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them. Grant of compensation in the sum of Rs.1 lac will serve the ends of justice.
15. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.21,83,004/-, i.e. about 95% of the sale consideration, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded quarterly @18%) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.21,83,004/- alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the Opposite Parties, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.
16. No other point, was urged, by Counsel for the parties.
17. For the reasons recorded above, this complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally held liable and directed as under:-
Housing Development Finance Corporation Limited shall have the first charge, on the amount to be refunded, to the complainants, by the Opposite Parties, to the extent, the amount is due to it, against the complainants as it had advanced loan in their favour for part payment of the price of flat, in question, under the Tripartite Agreement.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.
Pronounced.
28.09.2017
(DEV RAJ)
PRESIDING MEMBER
(PADMA PANDEY)
MEMBER
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(Complaint Case No.447 of 2017)
Argued by:-
Sh. Sanjeev Sharma, Advocate for the complainants.
Mrs. Vertika H.Singh, Advocate for Opposite Parties No.1 & 3.
Opposite Parties No.5 & 6 exparte vide order dated 07.07.2017.
Opposite Parties No.2 & 4 exparte vide order dated 29.08.2017.
Dated the 28th day of September, 2017
ORDER
Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted, with costs.
(DEV RAJ) PRESIDING MEMBER | (PADMA PANDEY) MEMBER |
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