Chandigarh

StateCommission

CC/396/2016

Sh. Rakesh Rehni and Anr. - Complainant(s)

Versus

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

R.C. Sharma

12 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	396 of 2016
Date of Institution	:	25.07.2016
Date of Decision	:	12.09.2016

 

1. Sh.Rakesh Rehni son of Late Sh.Chaman Lal Rehni, resident of House No.C-14, Campus Punjabi University, Patiala.
2. Ms.Kiran Sharma wife of Sh.Rakesh Rehni, resident of House No.C-14, Campus Punjabi University, Patiala.

 

…… Complainants

V e r s u s

1. M/s Unitech Limited, having its registered office at 6, Community Centre, Saket, New Delhi, through its Managing Director.
2. Regional Manager, M/s Unitech Limited, Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh.
3. M/s Alice Developers Private Limited, having its Registered Office at 6, Community Centre, Saket, New Delhi, through its Managing 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:-     Sh.R.C. Sharma, Advocate for the complainants.

Opposite parties exparte.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants are husband and wife. They opted to purchase an independent floor, in a mega housing project, launched by the opposite parties. They deposited an amount of Rs.2,23,737/- towards earnest money qua the unit, in question, on 22.10.2009. Subsequent thereto, they were allotted residential floor bearing no.0002, Block B, measuring approximately 191.36 square yards, in the project of the opposite parties known as ‘Unihomes’, Sector 107, Uniworld City, Mohali, Punjab.

2.         It was specific case of the complainants  that they purchased the said unit for their residential purpose. Buyer’s Agreement (in short the Agreement) was signed between the  parties on 06.04.2010. Price of the unit was fixed at Rs.23,49,004/-.
3.         It is further case of the complainants that upto 23.11.2013, as and when demand raised, they had paid an amount of Rs.22,36,037/- toward price of the unit. As per Clause 4.a.(i) of the Agreement,  possession of the unit was to be delivered within 36 months from the date of execution thereof. In case of failure, as per Clause 4.c of the Agreement, the opposite parties were liable to pay an amount of Rs.5/- per square feet, per month of the saleable area, which was to be adjusted at the time of offer of possession.
4.         It was also the case of the complainants that development work at the site was not in progress. Handing over of possession of the unit was also not in sight. The committed period for the said purpose had already expired. Even in the month of June 2016, when they visited the site, it was noticed that construction was not in progress. Above facts compelled them to file this complaint. It is prayed that let directions be issued to the opposite parties to refund the amount paid alongwith interest; compensation for mental agony and physical harassment and also litigation expenses.
5.         This complaint came up for hearing before this Commission on 27.07.2016, on which date, following order was passed:-

        “Alongwith the complaint, an application has been    moved by the Counsel for the complainants seeking       permission to file joint complaint.

There is no legal impediment, in allowing the application. The same is, accordingly allowed. The complainants are allowed to file the joint complaint.

The application is disposed of accordingly.

The complaint be registered.

Admitted. 

Let notice be issued to the Opposite Parties.

Smt. Vertika H. Singh, Advocate is present in Court to represent Opposite Parties No.1 & 2 in some other case. On our asking, she accepts notice of this complaint on behalf of Opposite Parties No.1 & 2. She undertakes to file her Vakalatnama on the next date of hearing. Copies of the complaint and other documents annexed therewith have been supplied to her. She seeks time to file reply and evidence on behalf of Opposite Parties No.1 & 2. She may do so on or before the next date of hearing, with advance copy to the Counsel  opposite.

On request, adjourned to 23.08.2016.  

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.       

 Notice to Opposite Party No.3 (M/s Alice Developers Private Limited) be issued for the date fixed.

Dasti notice be also given to the Counsel  for the complainants for the service of Opposite Party No.3.”  

 

6.         Notice was served upon opposite parties no.1 and 2 through Mrs. Vertika H. Singh, Advocate, who had been appearing for the opposite parties in large number of cases, almost every day. Notice was ordered to be issued to opposite party no.3 for the date fixed, alongwith Dasti notice. The matter was adjourned to 23.08.2016, on which date the following order was passed.

“Mrs. Vertika H.Singh, Advocate had been appearing for Opposite Parties No.1 and 2 (M/s Unitech Limited) in almost all the cases to represent them. She was present in Court on 27.07.2016, when notice was issued in this complaint. On our asking, she accepted notice on behalf of Opposite Parties No.1 and 2. She undertook to file her power of attorney on the next date of hearing i.e. today. Copies of the complaint and documents annexed therewith were supplied to her. She also sought time to file reply and evidence by way of detailed affidavit. She was given liberty to file reply on or before the next date of hearing.

Today, Mrs. Vertika H.Singh, Advocate has put in appearance. It is stated that she has handed over copies of the complaint alongwith documents to Sh.Lalit Gupta, Authorised Representative of Opposite Parties No.1 and 2. She also intimated him the order passed on 27.07.2016. She further states that thereafter she has not received any instruction to put in appearance on behalf of Opposite Parties No.1 and 2 in this complaint. It appears that Opposite Parties No.1 and 2 are not interested in defending this complaint.

 In view of above, as none has appeared on behalf of Opposite Parties No.1 and 2, hence, they are proceeded against exparte.

Report qua service upon Opposite Party No.3 (M/s Alice Developers Pvt. Ltd.)  has not been received.

To await service upon Opposite Party No.3 and also for arguments, come up on 06.09.2016.

Mrs. Vertika H.Singh, Advocate is again requested to intimate the date fixed to Opposite Parties No.1 and 2 by sending SMS.”

       

                It was brought to the notice of this Commission by Mrs.Vertika H. Singh, Advocate, that she has handed over copies of the complaint and connected documents to the person concerned. She also intimated the opposite parties no.1 and 2 qua date fixed. However, she stated that, as she has not been permitted to appear, she will not appear on behalf of the opposite parties, in this case. In view of above, this Commission was of the view that opposite parties no.1 and 2 are not interested in defending this complaint, as such, they were ordered to be proceeded against exparte. At the same time, order was also passed to await service of opposite party no.3. Matter was adjourned to 06.09.2016, on which date the following order was passed:-

“Notice was issued to Opposite Party No.3 for 23.08.2016, on which date, report was not received and to await service, the matter was adjourned for today. None came present today on behalf of Opposite Party No.3. In terms of Regulation 10(2) of Consumer Protection Regulations 2005, Opposite Party No.3 is deemed to have been served. Since nobody has put in appearance to represent it (Opposite Party No.3), it is proceeded against exparte.

It is apparent from record that notice of motion was issued on 27.07.2016. Notice was served upon Ms. Vertika H. Singh, Advocate, who had been appearing for Opposite Parties No.1 & 2 (M/s Unitech Limited) in almost all the cases at that time. Even today, she has put in appearance in two Execution Applications bearing No.35 of 2016 and 37 of 2016. On 23.08.2016, she has sent a copy of the complaint and documents annexed therewith to the authorities concerned. However, she did not receive any instruction to appear and, as such, she did not put up appearance on behalf of Opposite Parties No.1 & 2 on 23.08.2016.

Taking note of above, Opposite Parties No.1 & 2 were ordered to be proceeded against exparte. The matter was adjourned to today.

Ms. Vertika H. Singh, Advocate was again requested to intimate the date fixed to Opposite Parties No.1 & 2 by sending SMS. She states that SMS was sent accordingly.

There is none to oppose this complaint.

After hearing arguments of Counsel for the complainants, the order is reserved.”

7.         The complainants led evidence, in support of their case.
8.         We have heard Counsel for the complainants and, have gone through the evidence and record of the case, carefully. 
9.         It has come out on reading of orders passed above that the opposite parties were avoiding service. They deliberately are not appearing in this case. It is also in the notice of this Commission that in large number of cases, under similar circumstances, orders have been passed against the opposite parties to refund amount paid for the flat/plot owners. Non-appearance after notice makes it very clear that the opposite parties have no material available with them to defeat this complaint. As per facts of the case flat was booked on 22.10.2009. Plot Buyer’s Agreement was executed on 06.04.2010. Total price of the unit was fixed at Rs.23,49,004/- against which, by 23.11.2013, the complainants have already paid an amount of Rs.22,36,037/-. Possession was to be delivered within 36 months of signing of the Agreement subject to force majeure circumstances. Penal compensation for delay has also not been offered to the complainants.  Under above facts, the complainants are justified in claiming refund of amount paid alongwith interest. 
10.         As per documents on record, we are satisfied that this Commission has territorial jurisdiction to entertain this complaint. It is proved on record that payments towards price of the flat was received by Branch Office of the opposite parties at Chandigarh. In the Agreement, also address of the opposite parties is given as:-

“UNITECH LIMITED, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh and its Registered Office at 6, Community Centre, Saket, New Delhi 110017 (hereinafter referred to as Unitech/Confirming Party which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its executors, administrators, successors and assigns) acting through its authorized signatory”

11.         Not only as above, in number of cases, it has been noticed by this Commission that it was the Branch Office of the opposite parties at Chandigarh, which was responsible for marketing and execution of the project, in question.
12.         Furthermore, this Commission has got pecuniary jurisdiction to entertain and decide the complaint, as the aggregate value of claim raised is more than Rs.20 lacs and less than Rs.1 crore.
13.         No other point, was urged, by Counsel for the complainants.
14.         For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-

1. To refund the amount of Rs.22,36,037/-, to the  complainants, alongwith interest @15 % p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.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% p.a., instead of @15%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

15.         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).
16.         Certified copies of this order be sent to the parties, free of charge.
17.         The file be consigned to Record Room, after completion

Pronounced.

12.09.2016

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.