Punjab

StateCommission

CC/138/2017

Banita Kumari Mahajan - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

R.S.Jhand

25 Jan 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No. 138 of 2017

 

                                                          Date of Institution   :  09.03.2017             

                                                         Order Reserved on : 22.01.2018

                                                          Date of Decision     : 25.01.2018

 

1.      Banita Kumari Mahajan wife of Narinder Kumar Mahajan,

 

2.      Mohit Mahajan son of Narinder Kumar Mahajan,

                                                                           

          Resident of House No. 231, Phase-9 Mohali

 

                                                                                      ….Complainants

                             Versus

 

1.      Unitech Limited, Regd. Office 6, Community Center, Saket,     New Delhi through its Managing Director.

 

2.      Unitech Limited (Uniworld City Mohali), Marketing office at       SCO 189-190-91, Sector 17, Chandigarh through its         authorized officer.

 

3.      Alice Developer's Pvt. Ltd, registered office at Basement 6,     Community Centre, Saket, New Delhi through its Managing          Director

 

                                                                      Opposite parties

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainants                 :  Sh. R.S Jhand, Advocate

          For opposite parties no.1&2       :  Smt. Vertika H.Singh, Advocate

          For opposite party no.3             :  Ex-parte

            …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs no.1 and 2 launched project in the name of Uniworld City in Mohali for providing built-up flats, floors and plots by developing the area with all basic amenities and other facilities, as represented in the brochure issued by them. Taken in by the advertisement of the brochure, the complainants went in for purchasing residential apartment/flat in Uniworld City Sector 97, vide customer code GFM0108, to be built on ground floor of plot no. 0094, Block D measuring 1796 sq. ft along with car parking, EDC, greenery etc for a total consideration of Rs.61,85,995/- excluding service tax, club membership from OPs. Allotment letter was issued to them by OPs on 30.04.2011 and thereafter buyer's agreement was executed between them on 21.06.2011. OPs promised to provide all latest facilities to be provided in the Mega Housing Project along with direct approach roads/connecting roads. It was also promised that the availability of basic needs like hospital, schools, markets etc within the project itself would be provided therein. The basic facilities of roads, streetlights, electricity, sewerage connectivity and other facilities would be provided by the OPs, as well in the project. The facilities, as referred to above, were represented to be provided within 12 months from the date of agreement by OPs. The complainants paid all the installments to OPs till date, as demanded by them along with taxes. The complainants have paid an amount of Rs.60,96,664/- to OPs. But till date, the possession has not been offered even after lapse of about more than four years by OPs to them. The complainants visited the OPs at their office several times to ascertain the stage of the construction, development and possession, but OPs have not given satisfactory reply to them. The construction and development of the project has been stopped without any reason by OPs, since several months. Despite receipt of 90% of sale consideration amount by OPs, the latter have not completed the project and not delivered the possession within agreed time thereof of the flat to the complainants. The complainants alleged deficiency in service and unfair trade practice on the part of OPs. Therefore, they filed complaint praying that OPs be directed to refund the deposited amounts of Rs.60,96,664/- with interest @ 10% p.a from the date of deposits till actual payment and further prayed for Rs.2 lac as compensation for deficiency in service or unfair trade practice and Rs.50,000/- as costs of litigation.

2.                Upon notice, OPs no.1 and 2 filed their separate written reply and contested the  complaint of the complainant vehemently. Preliminary objections were raised that this Commission has no territorial jurisdiction to try the complaint. Buyer's agreement dated 21.06.2011 was executed between the parties at New Delhi. Demand for payment has been raised from Gurgaon office of the OPs, which has not been impleaded, as party in the present case and receipts of payments has been issued by Gurgaon office only The complainants made payments to OPs through cheque payable at New Delhi only. The complainants purchased apartment/flat for re-sale purposes and are not consumers. The complainants have filed complaint on false and frivolous averments. The complainants have no cause of action to file the complaint.  As per Article 11 of the buyer's agreement, in case allottee fails to observe any of the stipulations contained in the agreement, then in that eventuality, it would amount to breach of agreement on the part of the allottee and developer would be entitled to forfeit the earnest money along with the interest paid on delayed payments till the time of such breach. On merits, it was averred that complainant are merely investors, who had invested money in the above said flat for investment purposes only. As per clause (4)(i) the possession of the flat was to be delivered within 12 months of signing of agreement, but the said period of 12 months was a tentative time period only, which was subject to force majeure circumstances. It was further averred that due to recession in the market, OPs have been facing extreme financial hardship. The OPs faced problem with regard to providing electricity in the said area, as PSPCL has been raising objections on one pretext or the other. The OPs were to provide electricity substation of 66 KV in the area. Due to various formalities and objections raised by PSPCL, the electricity could not be availed by OPs due to which, rest of the development work and amenities have also been delayed. As per clause 4(c) the OPs have made themselves liable to pay charges @ Rs.5/- per sq. ft per month of the saleable area of the floor for the period of delay in offering the possession. As per Clause 4 (c) the charges for delayed possession shall be adjusted at the time of issuing of final notice of possession by the developer. The complainants never enquired into the status of the construction work from answering OPs. The complainants are bound by the terms and conditions of the buyer's agreement executed between the parties. It was further averred that they have neither adopted any unfair trade practice nor caused any harassment or monetary loss to complainants. OPs no.1 and 2 prayed for dismissal of the complaint.

3.                OP no. 3 was set exparte in the complaint, vide order dated 05.09.2017.

4.                The complainant tendered in evidence affidavit of Banita Kumari Mahajan/Complainant no.1 Ex.C-A along with copies of documents Ex.C-1 to Ex.C-5 and closed the evidence. As against it; OPs tendered in evidence affidavit of Sh. Lalit Gupta authorized representative of OPs Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-3 and closed the evidence.

5.                We have heard learned counsel for the parties and have also examined the record of the case. OP no.3/ Alice Developers Pvt. Ltd has been set exparte in this case. The matter can be clinched on the basis of evidence adduced on record by the parties in this case. OPs no.1 and 2 held out brochure Ex.C-1 to attract the customers for purchasing the apartment/flat in the project. OPs no.1 and 2 represented to general public by means of brochure by giving the attractive picture of the area with the promised facilities to be provided therein for this residential project. It was given out in the brochure that club facility will be provided in the area to be developed in this case. It was also represented in the brochure that the specifications, as per international standards would be provided. The other facilities would be provided by OPs in the brochure, which have been enumerated from point (1) to (18) in it.  Allotment letter was issued to complainants by OPs no.1 and 2 on 30.04.2011, vide Ex.C-2. It is clear from perusal of Ex.C-2 that total sale consideration of this apartment/flat was Rs.61,85,995/-. The total amount of                   Rs. 61,85,995/- was to be payable by complainant to OPs no.1 and 2 and amount of Rs.574762/- to paid on 30.04.2011 at the time of registration and amount of Rs.5323851/- to be paid within 45 days of registration on 14.06.2011 and amount of Rs.287382/- was to be paid at the time of final notice of possession. Buyer's agreement Ex.C-3 was executed between the parties on 21.06.2011. Time is essence of the contract, as per clause 2(b) of buyer's agreement, as made by the parties specifically. Clause 4(a) of buyers agreement lays down that the possession was proposed to be delivered by the developer to purchaser within 12 months of signing of buyer's agreement dated 21.06.2011, subject to force majeure circumstances if any. As per clause 4(b) the purchaser(s)/complainant shall clear all his dues along with stamp duty amount and other charges within 30 days from the date of issuance of final notice of possession by OPs. Clause 4(a) makes it clear that OPs were under solemn obligation to deliver the possession after due development of the project to complainants within 12 months from the date of signing of buyers agreement. The date of delivery of possession was 21.06.2012. Ex.C-4 is statements of account Ex.C-4 on the record. The amount of Rs. 6211928/- has been credited to the account of the OPs no.1 and 2 from the account of the complainants. This document Ex.C-4 being statement of account has clearly proved that OPs no.1 and 2 have received almost entire sale consideration from the complainants by 29.12.2001 as recorded in it. The complainants paid money, as sale consideration to OPs no.1 and 2 within 12 months period, as agreed upon for delivery of possession, as per buyers agreement. Legal notice is Ex.C-5 was sent by complainants to OPs on 13.02.2017 supported by postal receipts. The contention of counsel for complainants is that OPs have neither raised any construction nor developed the project nor delivered the possession of the flat to the complainants despite receipt of all sale consideration amounts by them from complainants.

6.                The version of OPs no.1 and 2, as unfolded on the record is that OP no.3 is developer in this case and OPs no.1 and 2 has limited role for sale of developed apartment/flat by OP no.3. The reliance was placed on record in clause 8(b) of buyer's agreement that developer shall be entitled to a reasonable extension of time in case of force majeure circumstances. It was submitted that due to global recession in the real estate, the developer is entitled to some reasonable time. Reliance was also placed in clause 4(c) regarding payment of compensation by OPs no.1 and 2 to complainants. Affidavit of          Lalit Gupta authorized representative of OPs Ex.OP-A on the record. Ex.OP-2 is letter written by Chief Engineer Commercial of PSPCL Patiala to Secretary Housing & Urban Development, Government of Punjab that electric connection shall be released to colony after obtaining NOC from Punjab Pollution Control Board as per statutory requirement and so on. Ex.OP-2 is document of Chief Engineer as well as PSPCL to OPs no.1 and 2 that electricity connection can be issued on compliance of the conditions only. From perusal of record, we find that OPs no.1 and 2 have failed to maintain the electricity connection, which is basic essentiality for the residents of the  area. There is no evidence led in record by OPs that they have completed the construction within scheduled time. There is no evidence by OPs that they have obtained completion certificate, as mandated by Section 14 of PAPRA Act, 1995. The mere correspondence for electricity connection by OPs with PSPCL Ltd is no ground to hold that OPs have performed their part of the contract in this case. The complainants stated in evidence that OPs have not delivered the possession, meaning thereby, they have not developed the project despite receipt of entire sale consideration amounts from the complainants. They have received the money from the complainants within agreed time, but failed to hand over the possession thereof to them by developing the project. This is clear deficiency in service and gross unfair trade practice on the part of OPs in this case. The complainants seeks refund of the  deposited amounts due to deficient act of OPs in not developing the project despite receipt of the sale consideration amount and not handing over the possession thereof in the agreed time. We find that OPs no.1 and 2 are deficient in service because OPs no.1 and 2 received sale consideration from the complainants and hence OPs were under obligation to develop the project accordingly. This is a case of deficient service besides being of unfair trade practice on the part of OPs no.1 and 2. This finding of fact is recorded by us accordingly.

7.                As a result of above discussion, we accept the complaint of the complainants and direct OPs no.1 and 2 refund the entire deposited amount of Rs.60,96,664/- to the complainants along with interest @ 10% p.a from the date of their deposits till actual payment, as specifically prayed for in the complaint by complainants. We also award compensation of Rs.1,50,000/- for mental harassment and Rs.30,000/- as costs of litigation. The compliance of this order to be made within 45 days from the date of receipt of certified copy of this order.

8.                Arguments in this complaint were heard on 22.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

9.                The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

January 25 ,  2018                                                         

(ravi)