Chandigarh

StateCommission

CC/259/2016

Jatinder Mumick - Complainant(s)

Versus

M/s Unitech Limited - Opp.Party(s)

Sunil K Sahore, Adv.

02 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	259 of 2016
Date of Institution	:	09.06.2016
Date of Decision	:	02.08.2016

 

1. Jatinder Mumick wife of AIR Cmde S.S. Mumick (Retd.)
2. AIR Cmde Surjit Singh Mumick (Retd.) son of Sh.Dayal Singh Mumick

Both residents of H.No.258, Sector 35-A, Chandigarh.

…… Complainants

V e r s u s

M/s Unitech Limited, Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh, through its Managing Director.

              ....Opposite Party

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:-     Sh.Sunil K.Sahore, Advocate for the        complainants.

                        Opposite party exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants are wife and husband respectively. They have filed this complaint by stating that acting on representations and commitments made by representative of the opposite party, at its Marketing Office located at SCO No.189-90-91, Sector 17-C, Chandigarh, they decided to purchase a plot measuring about 300 square yards, in a project launched by it, in Mega Township, under the name and style of Uniworld City, Sector 106, Mohali, Punjab. Against an application dated 13.01.2006, they were allotted a plot bearing no.0077, in Block B (Ranches), measuring 358.80 square yards, They paid an amount of Rs.7.50 lacs, as earnest money to the opposite party. The Buyer’s Agreement, was signed between the parties on 05.06.2008. Total price of the said unit was fixed at Rs.53,37,150/-, which included basic sale price, Preferential Location Charges (PLC) if any, External Development Charges (EDC) etc. The complainants continued to make payment from time to time, as per the agreed schedule. By 15.09.2010, they had paid an amount of Rs.51,73,131/- to the opposite party towards price of the said unit. As per Article 4.a.(i) of the Agreement dated 05.06.2008, the opposite party was liable to deliver possession of the unit, in question, to the  complainants, within a period of 36 months, from the date of execution of the same (Agreement) i.e. on or before 04.06.2011, subject to force majeure conditions. The complainants approached the opposite party, many a times, to know about progress in the development work and the date when possession of the unit is going to be delivered, but they failed to get any positive reply. The above information was also sought by the complainants, vide letter dated 26.04.2016 Annexure C-4 but even then, they failed to get any response from the opposite party.  The complainants came to know that even the land, wherein the plot was alleged to have been situated and was shown to them, had not yet been acquired by the opposite party. Noting that, the instant complaint has been filed with a request to the direct the opposite party to refund the amount paid alongwith interest; compensation for mental agony and physical harassment; compensation for the period of delay in not handing over possession of the plot; and litigation expenses.

2.         On 16.06.2016, notice was issued in this complaint and the matter was adjourned to 06.07.2016, on which date, following order was passed by this Commission:-

“Service is complete.

Mrs. Vertika H.Singh, Advocate has put in appearance on behalf of the Opposite Party by submitting her memorandum of appearance, which is taken on record. She is directed to file her Vakalatnama on the next date of hearing. She seeks time to file reply and evidence. She may do so on or before the next date of hearing, with advance copy to the Counsel opposite.

On request, adjourned to 29.07.2016.

The complainants may also file their evidence by way of detailed affidavit(s) on or before the next date of hearing, with advance copy to the Counsel  opposite.”

3.         Mrs.Vertika H.Singh, Advocate, appeared on behalf of the opposite party, by submitting her memorandum of appearance. She was asked to file her Power of Attorney, reply and evidence, on the next date of hearing i.e. 29.07.2016. On the above said date, the following order was passed:-

“Called at the end of the list.

Mrs. Vertika H. Singh, Advocate is present in Court. She states that in this case, she has no instructions to put in appearance on behalf of the opposite Party. It is stated that the matter has been handed over to some other Counsel. Today, none is present on behalf of the Opposite Party.

In view of above, the Opposite Party is proceeded against exparte.

For arguments, to come up on 01.08.2016.”

 

4.         The above named Advocate stated that she has not received any instructions to put in appearance, on behalf of the opposite party. It was further stated by her that the matter has been handed over to some other Counsel. When none appeared on behalf of the opposite party  and sensing that there is an attempt to delay the matter, the opposite party was proceeded against exparte vide order dated 29.07.2016 and the matter was adjourned to 01.08.2016 for arguments. On the said date also, none appeared to argue this matter.
5.         The averments made in the complaint have gone unrebutted.
6.         The complainants led evidence in support of their case. 
7.         We have heard Counsel for the complainants and the evidence on record, very carefully.
8.         After hearing Counsel for the complainants and on going through the record and evidence of the case, we are of the considered opinion that the opposite party is guilty of deficiency in providing service and also indulging into unfair trade practice. As per facts on record, to purchase a plot, in a project launched by the opposite party, the complainants filed an application on 13.01.2006. They also paid an amount of Rs.7.50 lacs, as earnest money. Buyer’s Agreement was got executed on 05.06.2008 i.e. after a delay of about two years, from the date of application. Above act in not offering Buyer’s Agreement within reasonable time, say within two months, amounts to adopting of unfair trade practice.

                As per Article 4.a.(i) of the Agreement, the opposite party was liable to deliver possession of the unit, in question, to the  complainants, within a period of 36 months, from the date of execution of the same (Agreement) i.e. on or before 04.06.2011, subject to force majeure conditions. As per Buyer’s Agreement, the complainants continued to make payments and by 15.09.2010, they had already paid an amount of Rs.51,73,131/- against total sale consideration of Rs.53,37,150/-. Possession was to be delivered in the month of June 2011. More than five years have lapsed  from the promised date but there is nothing on record to show that possession will be delivered to the complainants, in the near future.

9.         From the documents on record, it has come out that the Marketing Office of the opposite party at Chandigarh situated in SCO No.189-90-91, Sector 17-C, Chandigarh, was dealing with the development and marketing of the project, in question.  Many letters interse have been exchanged between the complainants and representatives of opposite party, posted at Chandigarh qua the unit, in question. Letter to get information qua status of development and date of handing over possession of the unit was also written by the complainants to the Officers posted at Chandigarh, in Marketing Office of the opposite party, and the same has been acknowledged by it, as such, this Commission has territorial jurisdiction to entertain this complaint.

                It is also proved on record that the complainants had purchased this unit for their own residence. As such, they would fall within the definition of consumer.

10.         The facts mentioned above and arguments at the bar, clearly shows that the opposite party is deficient in providing service and also indulged into unfair trade practice, by making false promises aforesaid. The complainants are thus entitled to refund of the amount deposited alongwith interest from the respective dates of deposits onwards, compensation for mental agony and physical harassment and litigation expenses.
11.         Since it has been held above that the complainants are entitled to refund of the amount alongwith interest from the respective dates of deposits onwards, as also compensation for mental agony and physical harassment, they cannot be doubly benefited by also granting delayed compensation, for the period of delay in not offering possession of the unit, as has been claimed by them.  
12.         No other point, was urged, by Counsel for the complainants.
13.         For the reasons recorded above, the complaint is partly accepted, with costs. The  opposite party is directed as under:-

1. To refund the amount Rs.51,73,131/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.3 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

14.         However, it is made clear that, if the complainants 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).
15.         Certified Copies of this order be sent to the parties, free of charge.
16.         The file be consigned to Record Room, after completion.

Pronounced.

02.08.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

MEMBER

 

 

Rg.