Chandigarh

StateCommission

CC/468/2017

Muni Devi - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma, Adv.

17 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	468 of 2017
Date of Institution	:	06.06.2017
Date of Decision	:	17-Oct-17

 

Muni Devi wife of Sh.Jaipal Singh, resident of House No.208/1, Village-Farmana Badshahpur, Tehsil Meham, Rohtak, Haryana.

…… Complainant

V e r s u s

1. Unitech Limited, through its Chairman Sh.Ramesh Chandra, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
2. Sh.Ramesh Chandra, Chairman of Unitech Limited, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
3. Unitech Limited through its Director Sh.Sanjay Chandra, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
4. Sh.Sanjay Chandra, Director of Unitech Limited, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
5. Alice Developers Private Limited, through its Director Sanjiv Hingorani, having Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.
6. Sanjiv Hingorani, Director of Alice Developers Private Limited, through its Director Sanjiv Hingorani, having Registered Office at Basement, 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, 3 and 4.

Opposite parties no.2, 5 and 6 exparte.

 

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

Complaint case No.	:	542 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	17-Oct-17

 

1. Hardev Kumar Kansal son of Sh.Ram Karan Dass.
2. Aruna Kansal wife of Hardev Kumar Kansal.

Both residents of House No.1512, PSIEC Housing Society, Sector 51-B, Chandigarh.

…… Complainants

V e r s u s

1. Unitech Limited, Registered Office 6, Community Centre, Saket, New Delhi, through its Managing Director.
2. Unitech Limited (Uniworld City Mohali), Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh, through its M.D.
3. Alice Developers Private Limited, Registered Office at Basement, 6, Community Centre, Saket, New Delhi, through its Managing Director.
4. Ajay Chandra, Managing Director, Unitech, Office 6, Community Centre, Saket, New Delhi
5. Sanjay Chandra, Managing Director, Unitech, Office 6, Community Centre, Saket, New Delhi
6. Sanjeev (Sanjiv) Hingorani, Director Alice Developers Private Limited, Registered Office at Basement, 6, Community Centre, Saket, New Delhi.
7. Satbir Singh Yadav, Director Alice Developers Private Limited, Registered Office at Basement, 6, Community Centre, Saket, New Delhi.

…..Opposite parties

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

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

Opposite parties no.3 to 7 exparte.

 

Complaints under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, PRESIDING MEMBER.

                By this order, we propose to dispose of the aforesaid two 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 both the complaints aforesaid, the complainants are the original allottees and have sought refund of the amount deposited with the opposite parties, towards price of their respective units, alongwith interest, compensation etc. At the time of arguments, on 10.10.2017, it was agreed between the contesting parties, that, in view of above, both these 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.468 of 2017, titled as Muni Devi Vs. Unitech Limited and ors. The complainant came across an advertisement, published by the opposite parties regarding  launching of their residential project, under the name and style ‘UNIHOMES, situated in Mega Township, Uniworld City, Sector 107, Mohali, Punjab. It was stated that believing many tall claims raised that the project is approved by the Competent Authorities and it will contain all the best facilities, which are needed to live comfortable life etc., the complainant decided to purchase a  flat therein. It was further stated that, as such, the complainant by way of signing application form dated 14.12.2009, booked a flat, in the said project, on making payment of Rs.2,73,123/-, vide cheque dated 19.12.2009. Accordingly, vide allotment letter dated 14.12.2009 Annexure C-1, the complainant was allotted residential flat, bearing no.0013, Block B, Floor-GF, park facing, measuring 1077 square feet (in short the unit), for total sale consideration of Rs.29,92,854/-, which included Rs.27,31,227/- towards basic price; Rs.1,50,000/- towards PLC and Rs.1,11,627/- towards EDC. The complainant opted for construction linked payment plan, which was attached with the allotment letter. It was further stated that, thereafter, another amount of Rs.3,01,028/- was paid by the complainant towards price of the said unit, vide cheque dated 10.03.2010. It was further stated that despite making substantial amount, referred to above, the opposite parties failed to execute the buyer’s agreement, for a long time. It was further stated that, ultimately, buyer’s agreement was got executed between the parties on 08.10.2010 (infact 08.12.2010).
3.         It was further stated that, as per Clause 4 (a) (i) of the Agreement, after construction, possession of the unit was agreed to be given within 36 months, from the date of signing of the same. It was further stated that before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent upon 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. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the unit shall be paid by the opposite parties, to the complainant. It was further stated that as per the Agreement, end date to hand over possession  of the unit was 07.12.2013.
4.         It was further stated that, as per demands raised by the opposite parties, from time to time, the complainant continued to make payment and in all, she had paid an amount of Rs.28,68,370/-, till 04.02.2013, as is evident from customer ledger Annexure C-5 maintained by them (opposite parties), in respect of the unit, in question. It was further stated that when possession of the unit was not offered and delivered to the complainant by the stipulated date or even thereafter; she visited the site and was shocked to see that there was no development. Basic amenities such as roads, water, drainage system, electricity etc. were not in existence. It was further stated that despite making numerous requests to the opposite parties to complete construction and deliver possession of the unit but even after passage of 7 years, needful was not done. The complainant, in March 2017, asked the opposite parties to refund the amount alongwith interest @18% p.a. It was further stated that, by neither delivering possession of the unit, in question, complete in all respects, nor refunding the amount deposited, the complainant was left in lurch.  
5.         It was further stated that the aforesaid acts of the opposite parties amounted to deficiency in providing service and indulgence into unfair trade practice. By stating as above, the instant complaints have been filed by the complainants with a prayer to issue directions to the opposite parties to refund the amount deposited, alongwith interest, compensation for mental agony and physical harassment, as also litigation expenses.
6.         Notice was served upon the opposite parties.
7.         However, despite deemed service, none put in appearance, on behalf of opposite parties no.2, 5 and 6, as a result whereof, they were proceeded against exparte.
8.         Opposite parties no.1, 3 and 4, filed their joint written version, wherein, an attempt has been made to wash of their hands, by stating that Buyer’s Agreement was signed between opposite party no.5 and the complainant. As per Development Agreement dated 01.12.2008 opposite party no.5 was to construct the units and hand over possession thereof, to the purchasers. As opposite party no.5 has failed to do so, as such, no liability can be imposed upon opposite parties no.1, 3 and 4, which were only to market and sell the project, in question, and also to receive payments from the allottees, on behalf of opposite party no.5. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi and also all the payments were received by Gurgaon Office of the opposite parties. Receipts were also issued by the said office. It was further stated that all demands to make payment were raised by opposite party no.5, which was collected and deposited in a designated account of the developer i.e. opposite party no.5 and the unit, in question, is also situated at Mohali. It was further stated that the complaint filed is beyond limitation. It was further stated that the unit, in question, was purchased for future gain, as such, the complainant being investor, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
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 towards price of the unit, are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. It was further stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was further stated that, in fact, the complainant should have filed a civil suit for recovery of the amount deposited.
10.         It was not disputed that as per condition no. 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 conditions. The said period was extendable and till such time, the sale deed is executed, the builder was to remain owner of the property, in question. It was further stated that it was opposite party no.5, which was to construct the units and deliver possession of the same, as such, no liability can be fastened upon  opposite parties no.1, 3 and 4, as they were only the confirming parties. It was further stated that  opposite parties no.1, 3 and 4 had no liability to make refund of the amount deposited. It was further stated that vide Development Buyer Agreement dated 01.12.2008, opposite party no.5 was assigned development rights, with regard to more than 33.2438 acres of land, in which unit allotted to the complainant is situated. Opposite party no.5 was also authorized to use Unitech Trade Mark and Corporate Logo, for various purposes, such as promotional, marketing, advertisements etc. It was further stated that any letter issued by opposite parties no.1, 3 and 4, to the complainant, was only on behalf of opposite party no.5. It was further stated that in terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seeks refund of the amount deposited, the developer is at liberty to forfeit the earnest amount, out of the deposited amount, as the case may be. It was further stated that delay, if any, in execution of the agreement, was on the part of the complainant only. In-fact, the agreement was executed on 08.12.2010 and not on 08.10.2010, as alleged by the complainant, and, as such, possession of the unit, was to be delivered by 07.12.2013. Delay in delivery of possession of the unit was candidly admitted. It was further stated that, delay, if any, took place, is solely attributable to the PSPCL and GMADA, as it  took a long time for granting sanction to provide electricity in the project.  It was further stated that, now the electricity is provided at the site; all the basic amenities including the construction work of the unit are complete and the opposite parties had already applied for completion certificate vide letter dated 03.02.2016. It was further stated that opposite party no.4 who is Managing Director/Director of the Company/Unitech, has wrongly been impleaded as party to the complaint, in his personal capacity. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
11.         The contesting parties led evidence in support of their cases and raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
12.         The first question, that falls for consideration, is, as to whether, the complainant is a speculator, and that she 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., as alleged by the opposite parties no.1, 3 and 4. It may be stated here that there is nothing, on record to show that the complainant is the property dealer and is indulged in sale and purchase of property, on regular basis. In para no.2 of the complaint, supported by her affidavit, it has been specifically stated by the complainant that the unit, in question was purchased by her, for her residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1, 3 and 4 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, 3 and 4 in their written reply, therefore, being devoid of merit, is rejected.  

13.         The next 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 arose to her. In the instant case,  it is evident from contents of the Buyer’s Agreement, that it has specifically been stated that the Company i.e. Unitech is a Public Limited, having its Marketing Office at Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh. It has also come on record that on asking of the complainant, at one point of time, account statement/customer ledger Annexure C-5 pertaining to her unit was issued by Marketing Office of the Company, at Chandigarh, at it bears the address of Chandigarh Office of the opposite parties. Furthermore, it is also evident, that an amount in the sum of Rs.3,01,028/- was also received by Regional Office of the parties no.1, 3 and 4 at Chandigarh, as the same bore their address as Regional Office, SCO 189-191, Sector 17-C, Chandigarh-160017. Not only this, it has been candidly admitted by opposite parties no.1, 3 and 4, in their joint written reply that they had received payment towards price of the said unit, from the complainant and have also issued various letters, in respect of the unit, in question, to her. If that is so, it can safely be said that the Marketing Office of the Company at Chandigarh, was actively playing a significant role, in respect of the transaction in question, meaning thereby that it was actually carrying on business for gains, from Chandigarh. Under these circumstances, it can very well be said that this Commission, at Chandigarh, has territorial jurisdiction, to entertain and decide this complaint, in view of Section 17 (2) (a) (b) and (c) of the Act.

                Not only as above, since it has been proved on record that Marketing office of the Company is located at Chandigarh and the fact that the details of the project were given to the complainant, from that office only, meaning thereby that the project was marketed from Chandigarh;  in that case also, this Commission has territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839, in which it was held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint and also in view of Section 2 (1) (a) and (b) of the Act. Not only as above, similar findings were given by the National Commission, in a case titled as Parsvnath Developers and anr. Vs. Som Nath Sharma and 2 ors., First Appeal No.1613 of 2016, decided on 21.03.2017. Relevant contents of the said order read thus:-

“Regarding the question of territorial jurisdiction, the some part of cause of action accrues in Delhi as the agreement was signed at New Delhi.  The  payment  was received at Panchkula in the office of OPs 1 to 3.  Similar issue was decided by this Commission in the case of Ravinder Kumar Bajaj vs. Parsvnath Developers Pvt. Ltd. & Ors., first appeal No. 515 of 2016 decided on 23.08.2016 qua same very builder.  It was held that “officers of opposite parties no. 1 to 3 sitting in Branch Office at Chandigarh were actively participating in marketing and propagating the project, in question.  They were dealing with the complainants throughout, by receiving their letters qua progress at the spot and also accepted payment made through cheques.  In view of above, objection raised in this regard, stands rejected.”

 

                In view of above, objection taken by parties no.1, 3 and 4, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

14.         An objection was also raised by opposite parties no.1, 3 and 4 that the dispute being related to contractual nature, 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 condition no.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 07.12.2013 alongwith all basic amenities as mentioned in Article 2.a.(iii) of the Agreement. By not doing so, the opposite parties have breached the terms and conditions of the said agreement, leading to deficiency in providing service and adoption of unfair trade practice. 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 her, as she falls, within the definition of consumer. In this view of the matter, objection taken by opposite parties no.1, 3 and 4, in this regard, being devoid of merit, must fail, and the same stands rejected.

                The above objection taken by opposite parties no.1, 3 and 4 is also bereft of merit, in view of latest judgment passed by the Hon’ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd  March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

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 as on today. The complainant has 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, vide Agreement dated 08.12.2010. Constructed unit was sold in favour of the complainant, for an amount of Rs.29,92,854/-, which includes basic sale price, external development charges, preferential location charges etc. In all, the complainant has paid an amount of Rs.28,68,370/-, towards price of the said unit. As per condition no. 4.a.(i) of the Agreement, possession of the fully constructed unit, in a developed project, 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 07.12.2013. As stated above, before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent upon 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. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the flat shall be paid by the opposite parties, to the complainant. The due date of offer of possession of the unit i.e. 07.12.2013 already stood expired.

                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.1, 3 and 4 failed to give any positive date/time, as to when, possession of the constructed unit will be given. It was verbally said that construction of the unit, is ready to be delivered but completion certificate is awaited. 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. As stated above, even at the time of arguments, no commitment was made to deliver possession of the unit, in near future.

                Even otherwise, not even a single convincing document has been placed on record, by opposite parties no.1, 3 and 4 to prove that the unit, in question, is habitable or that the development at the project is complete in all respects. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by opposite parties no.1, 3 and 4, in respect of the flat, in question, to prove that the construction is complete and they are actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development and construction activities, had been undertaken and completed at the site or not, but they failed to do so. At the same time, opposite parties no.1, 3 and 4  were also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove their case, but they miserably failed to do that also. Mere placing on record an application dated 03.02.2016, allegedly sent to the Competent Authorities, seeking completion certificate in respect of the project, in question, is of no help to the opposite parties.

                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 said by the Hon’ble 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.”

16.         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.

 

17.         Furthemore, 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 Hon’ble 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”.

 

                However, in the present case, as stated above, possession of the unit, 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 actually deposited by her. 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 her, as also escalation in prices.

                No doubt, a plea was also taken by opposite parties no.1, 3 and 4, that delay aforesaid, is attributable to the PSPCL and GMADA, as they took a long time to grant approval for supply of electricity to the project. It may be stated here that mere bald plea taken by opposite parties no.1, 3 and 4 has no legs to stand. To substantiate their stand, the opposite parties were required to place on record cogent and convincing evidence on record, to convince this Commission that despite the fact that every step was taken at their end, but the said Authorities delayed the matter, unnecessarily leading to delay in completing the project. Had this been actually the case of the opposite parties, they would have definitely taken up the matter with the Competent Authorities, by sending letters followed by reminders, to grant approval with regard to provision of electricity to the project.  However, no such, documents are on record. As such, it can very well be said that such a plea has been taken by opposite parties no.1, 3 and 4, just with a view to evade their liability. Under these circumstances, no help, therefore, can be drawn by opposite parties no.1, 3 and 4, from Clause 8 (b) of the Agreement, relating to force majeure circumstances, as far as the present case is concerned. The complainant is certainly entitled to get refund of the amount deposited by her, towards price of the said unit, as held above.

18.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant. It is not in dispute that an amount of Rs.28,68,370/- was paid by the complainant, 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% per annum) 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 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by her, alongwith interest @15% compounded quarterly, (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. 

                However, since in the connected complaint case bearing no.542 of 2017, the complainants have sought refund of amount deposited, alongwith simple interest @15% per annum, as such, this Commission is bound to grant them interest, at such a rate, on the amount to be refunded by the opposite parties, alongwith compensation and litigation expenses. 

19.         As far as the plea taken by opposite parties no.1, 3 and 4 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 she (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 herself  is rescinding the contract, as such, she is entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by opposite parties no.1, 3 and 4, in this regard, has no legs to stand and is accordingly rejected.
20.         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 completion of construction, and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is continuing cause of action, in her 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, 3 and 4, in this regard, being devoid of merit, must fail, and the same stands rejected.
21.         As far as the liability of opposite parties no.1, 3 and 4 is concerned, it may be stated here that once it has been proved on record that the Company i.e. Unitech was a necessary party to the Agreement; it also marketed the project, in question; and had also received substantial amount, from the complainant, towards the said unit, as such, they (opposite parties no.1, 3 and 4) are equally liable alongwith opposite party no.5/Alice Developers Private Limited, to refund the amount paid by her (complainant). The objection raised by  opposite parties no.1, 3 and 4 to the effect that they being facilitator or confirming parties, are not liable to refund the amount paid by the complainant, alongwith opposite parties no.5 and 6, being devoid of merit, stands rejected.
22.         An objection was also taken by Counsel for opposite parties no.1, 3 and 4 that opposite party no.4 being Managing Director/Director was wrongly impleaded as a necessary party, in his personal capacity. We do not agree with the objection raised.  A similar question fell for determination before the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017, wherein, it was held as under:-

“From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company.  Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company.  By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint.  It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties.  The impugned order passed by the State Commission is, therefore, upheld and the appeal is ordered to be dismissed with no order as to costs.”

 

                In view of above, objection raised by Counsel for opposite parties no.1, 3 and 4 stands rejected.

23.         No other point, was urged, by the contesting parties, in both the cases.
24.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-

 

Consumer complaint no.468 of 2017. Opposite parties no.1 to 6 are jointly and severally directed as under:-

1.       To refund the amount of Rs.28,68,370/-, alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, 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.33,000/- 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 further carry penal interest @18% compounded quarterly, instead of 15%, from the date of filing of this complaint 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.542 of 2017. Opposite parties no.1 to 7 are jointly and severally directed as under:-

1.       To refund the amount of Rs.29,06,719/- to  the  complainants, alongwith simple interest @15% p.a.,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.1 lac, 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.33,000/- 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 further carry penal interest @18% p.a. simple, instead of 15%, from the date of filing of this complaint and interest @15% % p.a. simple, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

25.         However, it is made clear that, if the complainant(s), 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).
26.         Certified copy of this order be placed on the connected complaint file, referred to above.
27.         Certified Copies of this order be sent to the parties, free of charge.
28.         The file be consigned to Record Room, after completion.

Pronounced.

17-Oct-17

Sd/-

(DEV RAJ)

PRESIDING MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.