Chandigarh

StateCommission

CC/878/2016

Lovenish Aggarwal - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma, Adv.

27 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	878 of 2016
Date of Institution	:	02.12.2016
Date of Decision	:	27.02.2017

 

Lovenish Aggarwal son of Sh.Surya Kant Aggarwal, House No.79, Ranjit Avenue, Bela Chowk, Ropar-140002, Punjab.

…… Complainant

V e r s u s

1. Unitech Limited, through its Branch Head/Manager, having its Marketing Office at  SCO No.189-90-91, Sector 17-C, Chandigarh.
2. Unitech Limited, through its Chairman/Managing Director, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
3. Alice Developers Private Limited, through its Director, having Registered Office at 6, Community Centre, 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.

 

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Complaint case No.	:	880 of 2016
Date of Institution	:	02.12.2016
Date of Decision	:	27.02.2017

 

1. Kartik Aggarwal son of Sh.S.K. Aggarwal, resident of Upper Flat No.13/1, Middle Bazar, Shimla-171001.
2. S.K. Aggarwal son of Sh.Raghubir Dass Aggarwal, resident of Upper Flat No.13/1, Middle Bazar, Shimla-171001.

…… Complainants

V e r s u s

1. Unitech Limited, through its Branch Head/Manager, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
2. Unitech Limited, through its Chairman/Managing Director, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
3. Alice Developers Private Limited, through its Director, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.

 …..Opposite parties

Argued by:-      Sh.Sanjeev Sharma, Advocate for the        complainants.

Mrs.Vertika H.Singh, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

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Complaint case No.	:	881 of 2016
Date of Institution	:	02.12.2016
Date of Decision	:	27.02.2017

 

1. Harvender Arora son of Sh.Harbhajan Singh Juneja, resident of 401-Basant, Doordarshan EMP CHS, Opposite Lakshdham School, Gokuldham, Goregaon East, Mumbai-400063.
2. Anshu Arora wife of Harvender Arora, resident of 401-Basant, Doordarshan EMP CHS, Opposite Lakshdham School, Gokuldham, Goregaon East, Mumbai-400063.

…… Complainants

V e r s u s

1. Unitech Limited, through its Chairman/Managing Director, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
2. Unitech Limited, through its Branch Head/Manager, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Director, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.

 …..Opposite parties

Argued by:-      Sh.Sanjeev Sharma, Advocate for the        complainants.

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 the 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. In all the three complaints, the complainants are the first allottees and refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s). It is necessary to mention here that despite deemed service, none put in appearance on behalf of opposite party no.3, in all the three complaints, as a result whereof, it was proceeded against exparte, by this Commission, vide order dated 19.01.2017, respectively. At the time of arguments, on 15.02.2017, it was agreed between the contesting parties, that, in view of above, these three complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.878 of 2016 titled as Lovenish Aggarwal Vs. Unitech Limited and others. It is case of the complainant that attracted by rosy pictures shown by the opposite parties of their project, on 01.12.2010, he opted to purchase a flat, in a project launched by them, under the name and style ‘Gardens’, Uniworld City, Sector 97, Mohali, Punjab, for his personal use. An amount of Rs.3 lacs was paid by him, as booking amount. Vide allotment letter dated 01.12.2010 Annexure C-2, he was allotted residential apartment, bearing no.0102, Block A1, Floor-01, having super area of 1050 square feet (in short the unit), in the said project, for an amount of Rs.28,69,500/-, which included basic sale price, preferential location charges, car parking charges etc. Buyer’s Agreement Annexure C-3 (in short the Agreement) was executed between the parties on 15.02.2011. The amount was to be paid as per construction linked plan. (available at page 20 of the paper book) After construction, possession of the unit was agreed to be given within 36 months, from the date of signing of the above said Buyer’s Agreement. Relevant Article 4.a.(i) of the Agreement reads thus:-

“4.a. Delivery of Possession:

(i) That Subject to the Apartment Allottee(s) complying with various terms and conditions of this agreement and other requirements as indicated by the Developer, the possession of the Apartment is proposed to be offered to the Apartment Allottee(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Apartment Allottees(s) under this Agreement have been paid within the stipulated period. It is, however, understood between the Parties that various Apartments  shall be ready and shall be completed in phases and handed over to the Apartment Allottees(s) of the completed Tower/Block accordingly.”

3.         Before delivery of possession, as per Article 4.b., it was incumbent for the opposite parties, to give notice to the complainant. In case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances, it was further provided in Article 4.c.ii in the Agreement that penalty @Rs.5/- per square feet, per month of the super area, for the period of delay in delivery of possession of the unit shall be paid by the opposite parties, to the complainant.
4.         As per the Agreement, end date to hand over possession  of the unit was 14.02.2014.  It is contended by the complainant that by the time, this complaint was filed, he had already deposited an amount of Rs.28,17,982/- towards price of the said unit.
5.         It is case of the complainant that as and when project site was visited, pace of construction was found to be very slow. The approach/connectivity roads were not in existence. Water, drainage system, electricity etc. were not available at the site. The complainant asked the opposite parties qua delivery of possession of the unit, he was assured that it will be delivered in time. The complainant had purchased the said unit for residential purpose, as such, he continued to wait for offer of possession. It further transpired that development and construction work at the site has been stopped and delivery of possession was not in sight, in near future. To make payment towards price of the unit, the complainant had raised loan of Rs.20 lacs, from LIC Housing Finance Limited, Chandigarh. He was regular in making payment of Equated Monthly Installments (EMIs). It was stated that Tripartite Agreement was executed between the parties at Chandigarh.
6.         By stating as above, the instant complaint, alongwith connected complaints, having almost identical facts, have been filed by the complainant(s), with a prayer to issue directions to the opposite parties to refund the amount paid, with interest, compensation for mental agony and physical harassment and litigation expenses.
7.         Notice in this complaint was issued on 06.12.2016, for 21.12.2016, on which date, Mrs.Vertika H.Singh, Advocate, put in appearance on behalf of opposite parties no.1 and 2 and sought time to file reply and evidence. On the said date, service qua notice sent to opposite party no.3, through registered cover was not received back. To await service of opposite party no.3 and also for filing reply and evidence on behalf of opposite parties no.1 and, 2, the case was adjourned to 19.01.2017, on which date, none put in appearance on behalf of opposite party no.3, as a result whereof, it was proceeded against exparte, by this Commission, in all the three complaints, respectively, by invoking the provisions of Regulation 10 (2) of the Consumer Protection Act, 1986 (in short the Act).
8.          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 Buyer’s Agreement was signed between them, opposite party no.3 and the complainant, and as per Developers 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 Agreement and Tripartite Agreements were signed at New Delhi and also all the payments were received by Delhi/Gurgaon Office of the opposite parties. Pecuniary jurisdiction of this Commission was also challenged. It was asserted that the unit, in question, was purchased for future gain, as such, 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 pleaded that the complaint is barred by limitation.  
9.         On merits, it was admitted that the complainant had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainant are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not controverted. Execution of Buyer’s Agreement is admitted. It was stated that Chandigarh Office of the opposite parties no.1 and 2 was providing various facilities to the purchasers, including the complainant, on behalf of opposite party no.3. It was also admitted that opposite parties no.1 and 2 marketed the project, in question, from their Marketing Office at Chandigarh and also collected money from the complainant. 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 developed unit, was to be delivered to the complainant within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure condition. It was averred that delay in construction of flats occurred on account of force majeure circumstances. 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. It was averred that, even otherwise, delay, if any, was on the part of the PSPCL/GMADA authorities, in not sanctioning approval for providing electricity to the project.  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 can be fastened upon opposite parties no.1 and 2, as they were only the confirming parties. It was also stated that  opposite parties no.1 and 2 have no liability to make refund of the amount deposited. It was stated that requisite permissions/approvals in respect of the said project had been obtained by the opposite parties and basic amenities as promised are in existence at the project. The opposite parties have even applied for partial completion certificate, vide letter dated 03.02.2016, to the Competent Authorities. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
10.         The contesting parties, 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.         Before going into merits of the case, we would like to decide preliminary objection taken by  opposite parties no.1 and 2, qua lack of territorial jurisdiction of this Commission to entertain and decide this complaint. It is contended by Counsel for  opposite parties no.1 and 2 that Buyer’s Agreement was signed at New Delhi; payments were also received 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 complainant.

                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, decided on 22.08.2016, the said issue was decided as under:-

“Contention of Counsel for opposite party no.1 qua lack of territorial jurisdiction of this Commission to entertain and decide the complaint needs rejection. In the Buyer’s Agreement, it was specifically stated that the Marketing Office of opposite party no.1 is situated at SCO 189-90-91, Sector 17-C, Chandigarh. A similar plea raised by the opposite parties qua lack of territorial jurisdiction of this Commission to entertain and decide the complaint failed against them, was earlier rejected by this Commission, vide judgment titled as Mr.Om Parkash Dua and ors. Vs. Unitech Limited and another, decided on 22.08.2016. In that case, it was noted that the Marketing Office of opposite parties no.1 and 2 is situated in Chandigarh and the said office was responsible for development and marketing of the project, in question, as such this Commission has got territorial jurisdiction to entertain the complaint. In that case, it was observed by this Commission 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 the project, in question, was marketed by them and also that the payments were received by them, from the complainant, in respect of the unit, in question, at Chandigarh. Further, it was also clearly admitted by opposite parties no.1 and 2, in their joint written version that they were providing facilities to the purchasers, including the complainant, from their Chandigarh Office. 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. Besides as above, it is also evident from Annexure C-9 (colly.), copies of customer ledger (Marketing) pertaining to the account of the complainant, that the same were issued by opposite party no.1 at Chandigarh.  Furthermore, it is also evident that substantial amount towards the said unit was received by opposite parties no.1 and 2 at their Regional Office at SCO 189-191, Sector 17-C, Chandigarh-160017, as is evident from the documents at pages 62 to 65 and 69. Even the first page of the Apartment Buyer’s Agreement and the Tripartite Agreement has been stamped at Chandigarh. In view of fact of Marketing Office of the opposite parties no.1 and 2 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.  Contention raised by Counsel for  opposite parties no.1 and 2, in this regard, being devoid of merit, is rejected.

12.         To defeat claim of the  complainant, another objection was raised by Counsel for  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, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) 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, it has been specifically averred by the complainant, in para no.2 of his complaint, supported by his affidavit, that he has purchased the said unit for his personal use. In the absence of any cogent evidence, in support of the objection raised by  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. Not only as above, recently under similar circumstances, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 2, in their written reply, therefore, being devoid of merit, is rejected.  

13.         Another objection was raised by Counsel for opposite parties no.1 and 2, that the dispute being related to contractual matter, 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, physical possession of the unit, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 14.02.2014 alongwith all basic amenities as mentioned in Article 2.a.(ii) 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 within the definition of a consumer. In this view of the matter, the objection of opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

14.         Another objection taken by opposite parties no.1 and 2, with regard to pecuniary jurisdiction of this Commission, also deserves rejection. It may be stated here, that the complainant has sought refund of amount of Rs.28,17,982/- alongwith interest @18% p.a., from respective dates of deposits; compensation to the tune of Rs.3 lacs, for mental agony and physical harassment; compensation towards delayed interest; to pay amount of installments to the bank concerned, and cost of litigation to the tune of Rs.35,000/-, aggregate value whereof fell above Rs.20 lacs and below Rs.1 crore. In no way, the aggregate value of the relief claimed, fell beyond Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by opposite parties no.1 and 2, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
15.         It is not in dispute that the opposite parties have failed to deliver possession of the unit, in question, within the stipulated period or even till date. The complainants in all the complaints have sought refund of the amount paid, alongwith interest and compensation etc. It is to be analyzed as to whether, in view of facts noted above; pleadings on record and arguments raised, it is open to the complainant, to claim above said relief or not.

                It is not in dispute that the complainant purchased the unit, in question, for which Buyer’s Agreement was signed between the parties on 15.02.2011. Constructed unit was sold in favour of the complainant, for an amount of Rs.28,69,500/-, which includes basic sale price, preferential location charges, car parking charges etc. In all, the complainant paid an amount of Rs.28,17,982/-. As per condition no. 4.a.(i) of the Agreement, possession of the built-up unit was to be delivered to the complainant, within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions i.e. on or before 14.02.2014. As stated above, before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent for the opposite parties, to give notice to the complainant, in case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances. It was further provided in condition no.4.c.(ii) in the Agreement that penalty @Rs.5/- per square feet, per month of the super area, for the period of delay in delivery of possession of the flat shall be paid by the opposite parties, to the complainant. The date of offer of possession of the unit i.e. 14.02.2014 already stood expired. Now it is February 2017.

                Contention of Counsel for the complainant that construction at the spot is not complete needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainant. It is not a case of the opposite parties that possession of the unit was ready to be delivered by the stipulated date, but the complainant has refused to come forward to accept the same (possession). Rather, at the time of arguments, Counsel for opposite parties no.1and 2 failed to give any positive date/time, as to when, possession of the constructed unit will be given. It appears that delivery of possession is not in sight in the near future. Qua this very project, in a large number of cases, it has been found as a matter of fact that construction has come to stand still. In a case titled as Vinay Thukral and another Vs. Unitech Limited and another, Consumer Case No.451 of 2016 decided on 07.11.2016 (alongwith 04 connected cases), while interpreting above said Clause, qua delivery of possession, it was observed as under:-

“It is not in dispute that the opposite parties have failed to deliver possession  of the flat, in question, within the stipulated period. As per facts on record, Buyer’s Agreement was signed between the parties on 27.02.2012. Constructed unit was sold in favour of the complainants, for an amount of Rs.33.51 lacs. As per Article 4.a.(i) of the Agreement, possession of the fully developed unit was to be delivered to the complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. As per payment plan, amount was to be paid in ten installments. An amount of Rs.32,02,399/- was paid by the complainants, in nine installments. Tenth installment was to be paid, at the time of handing over possession of the unit, in question. That date already stood expired.

Contention of Counsel for the complainants that construction at the spot is not complete needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainants. It is not a case of the opposite parties that possession of the unit was ready to be delivered, but the complainants have refused to come forward to accept the same (possession). Rather, in the written statement, it is admitted by opposite party no.1 that there is a delay in completing construction of the units. At the time of arguments, Counsel for opposite party no.1 vehemently contended that possession of the unit will be offered to the complainants, in near future.  However, he has failed to substantiate his plea raised. Similar contention was taken by opposite parties no.1 and 2, in Amit Kohli and another`s case (supra). However, it was rejected by this Commission noting that completion of the project will take a long time.

Not only this, in the present case, there is nothing on record to show that the opposite parties have even applied for getting occupation and completion/partial completion certificates, in respect of the project, in question. In this view of the matter, it is held that the opposite parties by making false promises to the purchasers including the complainants that possession of the units will be delivered within 36 months from the date of execution of the Agreement, but by not abiding the same, were not only deficient in rendering service but were also guilty of adopting unfair trade practice.”

 

16.         Besides as above, in the present case, there is nothing on record, which may deter this Commission to give contrary findings. Mere placing on record an application dated 03.02.2016, sent to the Chief Administrator, GMADA, Punjab, requesting it to issue partial completion certificate, is of no help to the opposite parties. Even this much has not been made clear, as to whether, the said application has been considered or not. Furthermore, a bald statement, in the absence of any cogent and convincing evidence, to the effect that the opposite parties are in possession of all the necessary approvals, cannot be accepted. At the same time, further bald averment taken by opposite parties no.1 and 2, to the effect that delay in offering possession of the unit, occurred on account of non-grant of approval(s) by the PSPCL/GMADA, has no legs to stand. As stated above, even at the time of arguments, no commitment was made to deliver possession of the unit, in near future. Under these circumstances, it can be said that there is a material violation on the part of the opposite parties. At the same time, it is also a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

17.         Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding 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.

18.         Further, in another case titled as 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, under similar circumstances, 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”.

 

                In the present cases, as stated above, possession of the unit(s), has not even been offered, what to speak of delay in offering thereof. Under these circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit by the stipulated date or by the time, this complaint was filed, the complainant is thus, entitled to get refund of amount deposited by him, alongwith interest. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

19.         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 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, to refund the amount paid by him (complainant). The objection raised by Counsel for  opposite parties no.1 and 2, to the effect that they being only confirming parties are not liable to refund the amount paid by the complainant, being devoid of merit, stands rejected.
20.         As far as the plea taken by opposite parties no.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties) 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 himself is rescinding the contract, as such, he is 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 and 2, in this regard, has no legs to stand and is accordingly rejected.
21.         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 unit, in question, could not be made till date, for want of construction and basic amenities, and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is a continuing cause of action, in his favour, 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  opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.
22.         No other point, was urged, by the contesting parties, in all the three complaints.
23.         For the reasons recorded above, all the three complaints are partly accepted, with costs, in the following manner:-

 

Consumer complaint no.878 of 2016. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

1.       To refund the amount of Rs.28,17,982/- to  the  complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.35,000/-  (as prayed) to the  complainant.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

Consumer complaint no.880 of 2016. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

1.       To refund the amount of Rs.37,90,267/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

Consumer complaint no.881 of 2016. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

1.       To refund the amount of Rs.38,35,244/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4.       The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

24.         However, it is made clear that, if the complainants, in above cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
25.         Certified copy of this order be placed on the connected complaint files, referred to above.
26.         Certified Copies of this order be sent to the parties, free of charge.
27.         The file be consigned to Record Room, after completion.

Pronounced.

27.02.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.