Punjab

StateCommission

CC/137/2017

Tajinder Pal Singh - 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. 137 of 2017

 

                                                          Date of Institution   :  07.03.2017               

                                                            Order Reserved on : 22.01.2018

                                                          Date of Decision     : 25.01.2018

 

1.      Tajinder Pal Singh son of Sh. Manjit Singh,

 

2.      Jatinder Bir Singh son of Sh. Manjit Singh,

                                                                           

          Both residents of House No. 1446 (Second Floor), Phase-10,          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

 

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 after developing the area, with all basic amenities and other facilities, as represented in the brochure issued by them. Impressed by the advertisement of the brochure, the complainants went in for purchasing residential floor in Uniworld City Sector 107 in Unihomes, vide customer code UHM0001, to be built on plot no. 43-A Ist Floor, Block A measuring 1077 sq. ft, for a total sale consideration of Rs.22,41,304/- excluding service tax, club membership from OPs. Allotment letter was issued to them by OPs on 11.08.2009 and thereafter buyer's agreement was executed on 10.11.2009 between them. 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. The basic facilities of roads, streetlights, electricity, sewerage connectivity and other facilities would be provided by the OPs, as promised. The facilities, as referred to above were represented to be provided within three years from the date of agreement by OPs. The complainant opted for construction linked payment plan for purchase of the said floor with OPs. The complainants have paid amounts of Rs.19,94,541/- to OPs for purchase of said floor. The possession has not been offered by OPs even after lapse of more than four years therefrom, which was agreed to be delivered within 36 months from the execution of buyer's agreement. 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, OPs have not completed the project and not delivered the possession within agreed time thereof of the floor 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.19,94,541/- with interest @ 15% p.a from the date of deposits till actual payment, further prayed for Rs.5 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 10.11.2009 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 have been issued by Gurgaon office. The complainant made payments through cheque payable at New Delhi only. The complainants purchased apartment/flat for resale purposes and are not consumers of OPs. The complainants have filed complaint on false and frivolous averments. The complainants have no cause of action to file the complaint. The liability to construct the said apartment/flat and develop the area was of Alice Developers Pvt. Ltd/OP no.3. OP no. 3 was the developer and OPs no.1 and 2 had a limited role in the said project. The buyer's agreement has been executed between the parties on 10.11.2009 and Alice Developers Pvt. Ltd was also party to it. OP no.3 is the developer and OPs no.1 and 2 are confirming parties. OPs no.1 and 2 have limited role in the said project, as a confirming parties. Alice Developers Pvt. Ltd/OP no.3 were authorized to market, sell either itself or through its channel partners, the built up, developed area on its behalf. As per Clause 1(a) of the buyers agreement clearly stipulating that OP no.3 agreed to sell the apartment/flat to the allottee. As per Clause 2(a) of buyers agreement which stipulated that in pursuance to the allotment of the said apartment/flat to the allottee, the apartment allottee had agreed to pay to the developer a sum of Rs.22,41,304/- towards consideration of the  said apartment/flat. As per clause 4(a), the liability to handover the possession within the tentative time frame of 36 months from signing of the buyers agreement was of Alice Developers Pvt. Ltd/OP no.3. The complaint was contested even on merits by OPs no.1 and 2. It was averred that the roads connecting from Chandigarh to Mohali were to be provided by GMADA. Any deficiency in service or unfair trade practice was denied by OPs no.1 and 2 and they 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 Tejinder Pal Singh/Complainant no.1 Ex.C-A along with copies of documents Ex.C-1 to Ex.C-6 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-1/1 to Ex.OP-1/2 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 adjudicated with the aid of evidence on the record in this case. The brochure was published by OPs no.1 and 2, which is Ex.C-1 on the record holding  out the facilities to be provided therein in the project. The bare perusal of the brochure Ex.C-1 has established that a picturesque scenery has been shown for attracting the customers in this project by OPs.  It was represented by OPs no.1 and 2 in the brochure to provide gated community, round the  clock security, school, medical facility, convenience shopping, ATM/Bank, landscaped greens, open kids play areas, parking space, community centre, water treatment plant and sewage treatment plant. The complainant attracted by this project published by OPs no.1 and 2 purchased the apartment/flat with OPs no.1 and 2. We have to examine this point, as to whether OPs no.1 and 2 have been able to provide the  above facilities, as held out in the brochure by them to complainants or not. The complainant Tejinder Singh tendered his affidavit Ex.C-A on the record to support his averments. Allotment letter dated 11.08.2009 issued by OPs no.1 and 2 is Ex.C-2. The total sale consideration of the  apartment/flat has been shown as Rs.22,41,304/- and payment is of construction linked plan opted by the complainants. It is construction-linked plan and complainants were to release the payment to OPs no.1 and 2, as per stage of the construction only. On final notice of possession by OPs no.1 and 2, the complainants were to pay Rs.106493/- to OPs. Buyers agreement dated 10.11.2009 was executed between the complainants and OPs in this regard. As per clause 4(a) of buyer's agreement Ex.C-3, the possession was scheduled to be delivered within stipulated period of 36 months from the date of signing of this agreement, subject to force majeure circumstances by OPs. The purchasers have to clear all dues with stamp duty amount and other charges before delivery of possession to him. Ex.C-4 is statement of account of complainants showing that the amount of Rs.19,95,917/- has been credited to the account of OPs no.1 and 2 on behalf of the complainants. This document has proved it on the file that OPs no.1 and 2 has received the balance amount of Rs. 19,95,917/- from complainants and closing balance is of Rs.1376/-. The complainant served legal notice upon OPs, vide Ex.C-5 dated 01.02.2017 to the effect that they have not completed their project despite receipt of substantial amounts of money from them. This evidence has been adduced by the complainants to establish their case on the record.

6.                To counter this evidence, OPs tendered in evidence affidavit of Sh. Lalit Gupta Authorized  Representative /OPs no.1 and 2 Ex.OP-1/A on the record. He admitted this fact that buyer's agreement has been executed between the parties on 10.11.2009 at New Delhi. He stated that this Commission has no territorial jurisdiction to try the matter. He stated that Alice Developers Pvt. Ltd/OP no.3 is the developer and OPs no.1 and 2 is the confirming party has been selling the flat. The apartment/flat developed by OP no.3 only. He stated that, as per Clause 4 (a) of the buyer's agreement, the liability to handover the possession within the tentative time frame of 36 months of the signing of the buyers agreement was of OP no.3. Ex.OP-1/2 is trademark licence agreement between OPs no.1 and 2 and OP no.3 on the record. This is only evidence led on record by OPs.

7.                From careful appraisal of entire evidence on the record, we find that the apartment/flat to be delivered to complainants is located at Mohali and as such, this Forum has territorial jurisdiction to try the complaint. A Forum where cause of action either wholly or in part has arisen has jurisdiction to try the case. Since the subject matter in dispute is situated at Mohali within the jurisdiction of this Forum, hence it has jurisdiction to try the complaint. Consequently, contention of counsel for OPs is repelled by us on the point that this Forum has no jurisdiction to try the complaint because the property, which is subject matter of dispute in this case is situated at Mohali and cause of action also arose at Mohali, hence this Forum has requisite jurisdiction to try the complaint.

8.                Now, we touch the merits of the case, as to whether OPs no.1 and 2 received the money, but failed to develop the project and to deliver its possession within scheduled time to complainants or not. We find that it has transpired in the evidence of complainants Ex.C-A that OPs have not developed the project and have failed to provide the  basic facilities, as held out in the brochure. OPs have not led any cogent and rebuttal evidence to the contrary on the  record. It is clear from perusal of brochure Ex.C-1 that OPs agreed to provide facilities like  gated community, round the  clock security, school, medical facility, convenience shopping, ATM/Bank, landscaped greens, open kids play areas, parking space, community centre, water treatment plant and sewage treatment plant. There is no evidence on the record brought by OPs that they have been carried into effect or have been existing on the spot on the part of OPs. On the other hand, evidence of the complainant has proved that they are non-existent on the spot. Allotment letter was issued by OPs no.1 and 2 to complainants, vide Ex.C-2 on 11.08.2009.

9.                The complainants paid sale consideration amount to OPs no.1 and 2, vide statement of account Ex.OP-4 on the record. The amounts have been received from complainants by OPs no.1 and 2 towards sale consideration money and not by OP no.3. It is construction-linked plan, as per flat buyer's agreement and date of payments of the installment, as per stage of construction enumerated in the document forming part of the flat buyer's agreement. OPs were under obligation to deliver the possession within period of 36 months from the date of execution of flat buyer's agreement, vide Ex.C-3 dated 10.11.2009. There are no force majeure circumstances either pleaded by OPs no.1 and 2 or proved by any evidence on the record justifying the extension of any time. OPs no.1 and 2 have failed to deliver the possession of the developed apartment/flat to complainants within stipulated time of 36 months, which fell due on 10.11.2012. Even five years period has lapsed after expiry of period of delivery of possession, but OPs have not yet produced any occupancy certificate so far before us as mandated by Section 14 (ii) of PAPRA Act, 1995. The evidence of the complainants has gone un-rebutted on the record that OPs have not developed the project, even by receiving money from complainants. There are no roads, water treatment plant, sewage treatment plant, open kids play areas, parking space and community centre etc as given in the brochure by OPs. These facilities were agreed to be provided to complainants and other allottees by OPs within 36 months from the date of execution of flat buyer's agreement. OPs no.1 and 2 only took a plea that OP no.3 was to develop the area and hence they are not liable, we find no substance in it. The complainant's money has been received by OPs no.1 and 2 directly and hence it was the promoter of the area. Responsibility is of OPs no.1 and 2 to see that project is fully developed and possession thereof was delivered to complainants within scheduled time.

10.              We, thus, have come to conclusion that OPs no.1 and 2 have used hard earned money of the complainants for more than five years. The complainants have almost cleared the amounts due from them to OPs no.1 and 2, but the latter have not developed the project nor obtained any occupancy certificate under Section 14 (ii) of PAPRA Act 1995 so far. This is a case of unfair trade practice on the part of OPs no.1 and 2. There might be contract between OPs no1 and 2 and OP no.3, but it is no ground to hold that OPs no.1 and 2 are not liable in this case, because they are found to be the main beneficiaries of the money paid by complainants to them. Consequently, OPs no.1 and 2 are held deficient in service and guilty of unfair trade practice in using the hard earned money of the complainant by not developing the project for delivery of possession within scheduled time to the complainants. It was construction-linked plan and complainants were under obligation to release the payment, as per stage of construction, which they have already done. OPs no.1 and 2 wangled to obtain money from complainants, without raising the construction and developing the project, as per buyers agreement and thus committed deficiency in service.

11.              As a result of above discussion, we accept the complaint of the complainants and direct OPs no.1 and 2 to refund the entire deposited amount of Rs.19,94,541/- to the complainants along with interest @ 12% p.a from the date of their deposits till actual payment. We also award compensation of Rs.1,50,000/- for mental harassment to complainants and Rs.30,000/- as costs of litigation. The compliance of this order  be made within 45 days from receipt of certified copy of this order by OPs.

12.              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.

13.              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)