Chandigarh

StateCommission

CC/132/2017

Sangeeta - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Ajay Pasricha , Seema Pasricha, Adv.

01 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	73 of 2017
Date of Institution	:	20.01.2017
Date of Decision	:	01.05.2017

 

Maya Rana wife of Sh. Shreebatsa Rana resident of House No.24/C-5, Ground Floor, Vasant Kunj, New Delhi, through Special Power of Attorney holder Yatinder Chand son of Late Sh.Gajender Chand, resident of House No.1075, Sector 2, Panchkula, Haryana.

…… Complainant

V e r s u s

1. Unitech Limited, Real Estate Division (Marketing) Ground Floor, Signature Towers, South City-1, N.H.8, Gurgaon-122001, Haryana, through its Chairman.
2. Unitech Limited, SCO No.189-90-91, Sector 17-C, Chandigarh-160017, through its Chairman
3. Unitech Limited having its Registered Office at 6, Community Centre, Saket, New Delhi -110017, through its Chairman.

…. Opposite parties

Argued by:-      Ms.Pallavi Singh, Advocate for the complainant.

Mrs.Vertika H. Singh, Advocate for the opposite parties.

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

 

Complaint case No.	:	132 of 2017
Date of Institution	:	13.02.2017
Date of Decision	:	01.05.2017

 

Sangeeta wife of Mr.Satbir Singh, presently resident of A-2 Block, Flat No.441, Him Sagar Apartments, CHI-2, Greater Noida, U.P. 201308.

…… Complainant

 

V e r s u s

1. Unitech Limited, Regional Office at SCO 189-191, Sector 17-A, Chandigarh, through its Sr.Manager Marketing.
2. United Limited, Real Estate Division (Marketing) 5^th Floor, Tower A, Signature Tower, South City, NH-8, Gurgaon, through its Managing Director.
3. Unitech Limited, 6 Community Centre, Saket, New Delhi-110017, through its Chief Managing Director.
4. Unitech Commercial Tower-11, 1^st Floor, Sector 45, B Block, Greenwood City, Gurgaon-122001, Haryana, through its Vice President.
5. Alice Developers Private Limited, Basement 6, Community Centre, Saket, New Delhi, through its Manager Director.

…. Opposite parties

Argued by:-      Ms.Seema Pasricha, Advocate for the        complainant.

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 to 4.

Opposite party no.5 exparte.

 

Complaints under Section 17 of the Consumer Protection Act, 1986

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of aforesaid 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, the complainants are original allottees and have sought refund of the amount deposited towards price of the plots, respectively, purchased by them, in the respective project of the opposite parties.  At the time of arguments, on 25.04.2017, it was agreed by Counsel for the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, both the complaints can be disposed of, by passing a consolidated order.

2.         Connected consumer bearing no.132 of 2017, was earlier filed before the District Forum-II, U.T., Chandigarh, however, later on the same was withdrawn for want of pecuniary jurisdiction, vide order dated 14.12.2016, for filing it before this Commission. 
3.         To dictate order, facts are being taken from consumer complaint bearing no.73 of 2017 titled as Maya Rana Vs. Unitech Limited and others. It is case of the complainant that on 19.02.2008, she moved an application with the opposite parties, for purchase of a plot, on making payment of booking amount, in their project named Uniworld City, Sector 107, Mohali, Punjab.  She was allotted plot no.0110, Block B (Boulevard), measuring 358.80 square yards, in the said project. Total sale consideration of the plot, in question, was fixed at Rs.51,12,900/-, inclusive of external development charges, preferential location charges etc. Before issuance of allotment letter, the complainant had already paid an amount of Rs.9,88,350/-. Buyer’s Agreement Annexure C-2 (in short the Agreement) was executed between the parties on 02.03.2009. The amount was to be paid as per payment plan Annexure A, forming part of the Agreement. As per Clause 4.a. (i)  of the Agreement, after completion of basic amenities, possession of the developed plot was agreed to be given within 36 months, from the date of signing of the above said Buyer’s Agreement i.e. on or before 01.03.2012. It is contended by the complainant that she continued to make payment, as demanded and by the time this complaint was filed, she had already deposited an amount of Rs.49,69,639/- towards price of the said plot. Balance amount of Rs.1,43,261/- was to be paid at the time of handing over possession of the developed plot.
4.         It was mentioned in Clause 4.e. of the Agreement that if after expire of 36 months, possession is not handed over, the opposite parties will refund the entire amount deposited, alongwith interest @10% p.a. However, when possession of the plot was not offered, the complainant contacted opposite party no.2. She was intimated that possession will be handed over in near future.
5.         Lot of correspondence took place between the parties. However, confirmed date to handover possession of the developed plot was not given by the opposite parties to the complainant. Many queries were raised through emails, however, most of them were not even replied. When neither possession of the developed plot was offered nor amount paid was refunded, the complainant sent legal notice dated 25.10.2016 Annexure C-5, seeking refund of amount paid, with interest.
6.         To strengthen her case, that there was no development at the site; basic amenities such as roads, electricity, water etc. are not in existence at the site,  photographs of the site have been placed on record, which were clicked in the presence of an executive of the opposite parties. It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency in providing service and adoption of unfair trade practice.
7.         By stating as above, the complaints aforesaid, were filed by the complainants, with a prayer to issue directions to the opposite parties to refund the amount paid, with interest, compensation for mental agony and physical harassment; litigation expenses etc.
8.         Upon notice, the opposite parties filed their written statement, wherein, many preliminary objections were taken like offer of possession of the plot had already been made to the complainant vide letter dated 25.10.2016, as such, now the consumer complaint is not maintainable. 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, as such, no cause of action accrued to the complainant, to file this complaint before this Commission. It was averred that just because the opposite parties are having its Branch Office at Chandigarh, will not confer jurisdiction upon this Commission, to adjudicate the present complaint. In para no.2 of their reply, on merits, it was candidly admitted by the opposite parties, that they iterated the details of project, in question, to the complainant. Pecuniary jurisdiction of this Commission was also challenged. It was pleaded that the complaint filed is beyond limitation. It is asserted that the plot, 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 (in short the Act). She is a resident of Delhi.
9.         On merits, it is admitted that the complainant had purchased a plot, in the project of the opposite parties, in the manner, referred to above. Fact qua price of the plot, as mentioned in the complaint is also not disputed. It is stated that consumer complaint was not maintainable, and only a Civil Court, could adjudicate the dispute, in question, the transaction being contractual in nature. It was not seriously disputed that as per Article 4.a.(i) of the Agreement, the opposite parties were to hand over possession of the plot, in question, to the  complainant, within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It was averred that the said period was tentative. It is clarified that the opposite parties, could not hand over possession of the plot to the complainant, by the stipulated date, as there was global meltdown/recession of the economy worldwide, resulting into cash crunch throughout and also due to objections raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, as such, electricity could not be made available at the site, by the opposite parties. However, electricity will be provided to the project, shortly. It was averred that as such, it could very well be said that the opposite parties faced force majeure circumstances, as a result whereof delay aforesaid took place. At present the opposite parties are providing electricity through DG sets, from their own pocket. It is stated that possession of the plot has already been offered to the complainant on 25.10.2016, after providing all the basic amenities, but she failed to take the same. 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 opposite parties are at liberty to forfeit the booking/earnest amount, out of the deposited amount, as the case may be. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
10.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
11.         The parties led evidence in support of their cases. 
12.         The contesting parties, raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
13.         Before making any reference to the merits of the case, we would like to decide an objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It is necessary to mention here that the complainant has sought refund of an amount of Rs.49,69,639/- alongwith interest @15% p.a. compounded quarterly, from the respective dates of deposits, till realization; compensation to the tune of Rs.10 lacs, for mental agony and physical harassment; and cost of litigation to the tune of Rs.1 lac. At the time of arguments, it is argued by Counsel for the opposite parties that if the entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and in that event, it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016,

                We are not going to agree with the submission raised. This Commission, in the case of Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. and another, Consumer Case no. 484 of 2016 decided on 15.12.2016, by relying upon the ratio of judgment titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC), held that when determining pecuniary jurisdiction, in a complaint, component of interest claimed, is not to be added in the relief sought. In that case, it was recorded as under:- 

“In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/ Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

 

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

 

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

 

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

 

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

 

In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

       

                Thus, in the present case also, if interest is not added to the entire claim raised, it will remain below Rs.1 crore. In view of above, objection raised by Counsel for the opposite parties stands rejected.

14.         To defeat claim of the complainant, an objection was also raised by opposite parties that the complainant is an investor, as she has purchased the plot, 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. She is a resident of Delhi.  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. The complainant in her complaint has specifically stated that the said plot was purchased by her, so that she alongwith her family could shift there. As such, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, 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 the opposite parties in their written reply, therefore, being devoid of merit, is rejected.  

15.         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 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-7 pertaining to her plot was issued by Marketing Office of the Company, at Chandigarh. Furthermore, it is also evident, that at one point of time, when the complainant wanted to know about date of handing over possession of her plot, vide letter dated 25.10.2016 (at page 57), she was asked to contact Chandigarh Office for submitting some documents. Relevant contents of the said letter read thus:-

“You are also meanwhile requested to personally submit following documents to our Chandigarh office situated at S.C.O. 189-190-191, 1^st Floor, Sector 17-C, Chandigarh-160017 to enable them to prepare documents for handing over of possession and other formalities”

 

16.         It is specific case of the complainant that she after receipt of above said letter, contacted an executive of the opposite parties at the above given address; took him along to the site and showed that there was no development there. In the presence of above said executive, photographs were also clicked, justifying her stand. 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 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 was 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, the objection taken by the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

17.         It was not disputed that as per condition no. 4.a.(i) of the Agreement, possession of the fully developed plot, 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. Relevant clause reads thus:-

“(i) That the possession of Plot shall be delivered by the Developers to the Allottee(s) within 36 months hereof subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the intending Allottee(s)  as provided herein have been paid to the Developers. It is, however, understood between the Parties that various Plots comprised in the Township shall be ready in phases and handed over accordingly.”

 

18.         Counsel for the opposite parties has vehemently contended that though delayed but possession of the developed plot was offered to the complainant on 25.10.2016, however, despite that she has failed to take possession of the plot and on account of that, no relief can be granted to her.

                Now we will have to see, as to whether, possession so offered to the complainant was a genuine one or paper possession. It may be stated here that it is well settled law that before handing over possession of a plot, it is required of the builder to complete the development work; obtain partial/completion certificate. At the same time, it is an admitted fact that electricity supply is not yet available at the site. Burden to prove that the project had 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. It is very strange that not even an iota of evidence has been placed, on record, by the opposite parties, to prove that when offer was made to the complainant, in respect of the plot, in question, development work was complete and that all the basic amenities were in existence. On the other hand, in case, all the development activities, had been undertaken, and completed at the site, by the said date, 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 activities, had been undertaken and completed at the site or not, but they failed to do so. Mere moving of letter dated 03.02.2016 to the Competent Authorities, for issuance of partial completion certificate, is of no help to the opposite parties. It is also not clarified, why despite moving application in the month of February 2016, partial completion certificate has not yet been issued to the opposite parties. If it is so, an adverse inference could definitely be drawn that on account of some deficiency on the part of the opposite parties, the said application is pending consideration, before the Competent Authorities.

                Besides as above, when we read contents of the reply (on merits), as per version of the opposite parties, it became apparently clear that on account of global meltdown worldwide, it was not possible for the opposite parties to complete the project in time. Admission made by the opposite parties, themselves makes it clear that they had not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question and also delay further took place on account of global meltdown, which allegedly affected them (opposite parties).

                In the first instance, it is noted that if the opposite parties failed to obtain requisite permission(s) from the PSPCL and various objections were raised by the said Department, it cannot be held that they encountered force majeure circumstances. Had the papers been submitted by the opposite parties, after completing all the formalities, as required, and had Bank Guarantees been paid, in time, there would not have been any reason for the said Department to raise any objection, in that regard. Shortcomings/faults on the part of the builder(s) cannot be termed as force majeure circumstances.

                Coming to the plea taken regarding global meltdown, it may be stated here that, when the opposite parties, had already received almost the entire sale consideration (i.e. more than 95%), in the manner referred to above, in respect of the plot, in question, from the allottee(s) including the complainant, then it does not lie in their mouth to say, that they faced extreme financial hardship, due to recession in the market/global meltdown worldwide, as far as the project, in question, is concerned. It is not that the opposite parties were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the plots were to be sold to the allottees, on future payment basis. Had this been the case of the opposite parties, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission. Admittedly, more than 95% of sale consideration of the plot, in question, had already been received by the opposite parties, in the manner, referred to above, but actual physical possession of the same, was not delivered to the complainant, by the stipulated date and the offer so made on 25.10.2016, was only a paper possession, and that too, after a long delay. 

                Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the development works at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the development of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lock-out or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite parties or the contractors engaged by them, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the  complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

                The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case.

                Be that as it may, possession of the developed plot, was required to be offered on or before 01.03.2012. As held above, possession was offered only on 25.10.2016 and that too was a paper possession. Even if, for the sake of arguments, the said offer is assumed to be genuine offer (in the present case paper possession), at that stage, on expiry of the agreed period (01.03.2012), the complainant cannot be forced to take possession and at the same time, she is at liberty to seek refund of the amount received by the opposite parties, in the manner, referred to above, alongwith interest, compensation etc., as there was a material violation on the part of the opposite parties. It is 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, 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.”

 

19.         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.”

 

20.         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”.

 

                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 plot by the stipulated date and also the possession so allegedly offered vide letter dated 25.10.2016, has been held to be paper possession, as such,  the complainant is entitled to get refund of amount paid 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.

21.         At the same time, it is also held that since a specific period of 36 months for handing over possession of the plot was promised by the opposite parties, vide Clause 4 .a. (i) of the said Agreement, as such, the argument raised by Counsel for the opposite parties, at the time of arguments, that the period of delivery of possession was tentative, as such, time is not to be considered as essence of the contract, has no legs to stand. Even otherwise, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/Allotment Letter, is an unfair trade practice, on the part of the Builder, as has been held by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. In view of above, the plea taken up by Counsel for the opposite parties, in this regard also stands rejected.
22.         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 admittedly offer of possession of the plot, in question, was not made to the complainant, by the stipulated date i.e. 01.03.2012, but on the other hand, was ultimately made on 25.10.2016, which has been challenged by the complainant, by way of filing the present complaint and has been proved to be a paper possession.  Thus, if a period of two years is counted from 25.10.2016, the present complaint could very well be said to be filed within limitation.
23.         An objection was also raised by the opposite parties 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 plot, in the manner, referred to above. According to condition no.4.a.(i) of the Agreement, physical possession of the developed plot, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement, which they failed to do so and on the other hand, have issued a paper possession, which is being challenged by way of filing this complaint, by the complainant. 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, the objection of the opposite parties in this regard, being devoid of merit, must fail, and the same stands rejected.

24.         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.49,69,639/- was received by the opposite parties, in the manner, referred to above, without providing her anything, in lieu thereof, except a paper possession. 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 complainants, in both the complaints, are certainly entitled to get refund of the amount deposited by them, in the manner explained above, 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).
25.         As far as the plea taken by the opposite parties, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties) case, that they were ready with possession of the developed plot, to be delivered to the complainant, by the stipulated date but the complainant wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainant is rescinding the contract, as such, 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 the opposite parties, in this regard, has no legs to stand and is accordingly rejected.
26.         Once, it has been held above that the complainant is entitled to refund of the amount deposited, alongwith interest and compensation, as such, the plea taken by the opposite parties, that they are ready to pay compensation for the period of delay, cannot be taken into consideration. Had the complainant sought possession of the plot, in question, only in those circumstances, it could have been held that the complainant is entitled to get compensation, for the period of delay, in delivery of possession of the plot, in question and that too, as per prevailing law. The plea taken by the opposite parties, in this regard, is rejected. 
27.         As far as connected consumer complaint 132 of 2017 titled as Sangeeta Vs Unitech Limited and others is concerned, it may be stated here that in that case, besides Unitech Limited (opposite parties no.1 to 4) being a party to the complaint, the complainant has also sued Alice Developers Private Limited, as a necessary party (opposite party no.5) to the complaint. However, since despite deemed service, none put in appearance, on behalf of  Alice Developers Private Limited,  as such, it was proceeded against exparte, by this Commission on 29.03.2017. Therefore,  while taking advantage of non-appearance of Alice Developers Private Limited/opposite party no.5 in the complaint, opposite parties no.1 to 4 (Unitech Limited), in their joint written version, pleaded that they being only the confirming parties, cannot be held responsible for any deficiency in providing service, on account of non-delivery of possession of the  plot by opposite party no.5 to the complainant. It was further pleaded that it was only opposite party no.5, which was responsible to develop the project and deliver possession of the plot, in question, to the complainant. Rest of the objections taken in consumer complaint 132 of 2017 were almost similar, to what were taken in consumer complaint bearing no.73 of 2017, and have been dealt with by this Commission, in preceding part of this order.

                It may be stated here that we have gone through the record of consumer complaint 132 of 2017, very minutely, and found that out of the deposited amount of Rs.4,69,827/-, an amount of Rs.2,23,777/- was received by Regional Office of Unitech Limited, at Chandigarh, vide cheque dated 26.10.2009, Annexure C-2. Besides as above, in this case also, opposite parties no.1 to 4, have claimed to be a Public Limited Company, having its Marketing Office at Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh. In para no.6 of the written reply (preliminary objections), it has very candidly stated by opposite parties no.l to 4, that they had discharged their services to the complainant, throughout. Since, in the present case, it has been proved that opposite parties no.1 to 4 were necessary parties to the Agreement; they also admittedly marketed the project, in question; and had also received payment from the complainant, towards the said plot, as such, they are equally liable alongwith opposite party no.5, to refund the amount paid by her (complainant). The objection raised by Counsel for opposite parties no.1 to 4, in consumer complaint 132 of 2017 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.

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

 

In consumer complaint bearing no.73 of 2017 titled as Maya Rana Vs. Unitech Limited and others, the opposite parties, jointly and severally are directed as under:-

1. To refund the amount of Rs.49,69,639/- 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.50,000/- to the  complainant.

In consumer complaint 132 of 2017 titled as Sangeeta Vs. Unitech Limited and others, opposite parties Nos.1 to 5, jointly and severally, are directed as under:-

1. To refund the amount of Rs.4,69,827/- to  the  complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.50,000/- 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.15,000/- to the  complainant.

30.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in both the complaints, 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 the respective complaints, till realization.
31.         However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said plot, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants), respectively.
32.         Certified copy of this order, be placed on connected complaint file, referred to above.
33.         Certified copies of this order be sent to the parties, free of charge.
34.         The file be consigned to Record Room, after completion.

Pronounced.

01.05.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

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 (PADMA PANDEY)

MEMBER

 Rg.

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	132 of 2017
Date of Institution	:	13.02.2017
Date of Decision	:	01.05.2017

 

Sangeeta wife of Mr.Satbir Singh, presently resident of A-2 Block, Flat No.441, Him Sagar Apartments, CHI-2, Greater Noida, U.P. 201308.

…… Complainant

 

V e r s u s

1. Unitech Limited, Regional Office at SCO 189-191, Sector 17-A, Chandigarh, through its Sr.Manager Marketing.
2. United Limited, Real Estate Division (Marketing) 5^th Floor, Tower A, Signature Tower, South City, NH-8, Gurgaon, through its Managing Director.
3. Unitech Limited, 6 Community Centre, Saket, New Delhi-110017, through its Chief Managing Director.
4. Unitech Commercial Tower-11, 1^st Floor, Sector 45, B Block, Greenwood City, Gurgaon-122001, Haryana, through its Vice President.
5. Alice Developers Private Limited, Basement 6, Community Centre, Saket, New Delhi, through its Manager Director.

…. Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Ms.Seema Pasricha, Advocate for the        complainant.

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 to 4.

Opposite party no.5 exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.73 of 2017 titled as Maya Rana Vs. Unitech Limited and others, this complaint has been partly accepted with costs.

2.         Certified copy of the order passed in consumer complaint bearing No. 73 of 2017, shall also be placed on this file.
3.         Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 73 of 2017, be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

 

 

Sd/-                 Sd/-                                                         Sd/-

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.