Chandigarh

DF-I

CC/405/2015

Adarsh Mohan Sharma - Complainant(s)

Versus

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

Vaneet Soni

22 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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

Consumer Complaint  No	:	CC/405/2015
Date  of  Institution	:	30/06/2015
Date   of   Decision	:	22/12/2015

 

 

 

 

 

Adarsh Mohan Sharma son of Sh. Ravi Nandan Sharma, resident of House No. 1338, Progressive Enclave, Sector 50, Chandigarh.

……….. Complainant

 

VERSUS

 

1.   M/s Unitech Limited, SCO No. 189-190-191, Sector 17-C, Chandigarh, through its Managing Director.

 

     Alternative Address:

 

     M/s Unitech Limited, having its registered office at Basement 6, Community Centre, Saket, New Delhi.

 

2.   M/s Alice Developers Limited, Regd. Office: Basement 6, Community Centre, Saket, New Delhi – 110017, through its Managing Director.

 ……….. Opposite Parties 

 

BEFORE:   MRS.SURJEET KAUR             PRESIDING MEMBER

          SH. SURESH KUMAR SARDANA     MEMBER

 

For Complainants	:	Sh. Vaneet Soni, Advocate.
For Opposite Parties	:	Ms. Vertika H. Singh, Advocate.

 

PER SURESH KUMAR SARDANA, MEMBER

         

          Tersely, the facts and material, culminating in the commencement, relevant for the disposal of the instant Consumer Complaint and emanating from the record are that, in Nov. 2009, the Complainant was sold a residential floor i.e. Ground Floor/Block-A on Plot No.020 in UNIHOMES to be developed in the Mega Township to be known as UNIWORLD CITY, Sector 17, Mohali, Punjab. Even the Opposite Parties took an amount of Rs.5,41,841/- as per the construction linked plan, but till date they have not started construction of the project even though they have to complete the project within a period of 36 months (3 years) as per the Buyer’s Agreement dated 13.11.2009. Owning to the above, and after waiting for a period of more than 4 years and 2 months, the Complainant cancelled the booking and requested the Opposite Parties to refund the amounts paid by him. Although the Complainant cancelled the booking in January, 2014, the Opposite Parties have till date, with malice neither refunded the amounts nor replied to the e-mails sent by the Complainant from time to time. After more than 1 year of follow-up with the Opposite Party No.1, when the Opposite Parties did not even bother to respond to the Complainant’s request to refund the aforesaid amount, the Complainant has preferred the present Consumer Complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), before this Forum, seeking various reliefs, alleging that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.

2.      Notice of the complaint was sent to Opposite Parties seeking their version of the case.

 

3.      Opposite Parties, in their joint reply, while admitting the factual matrix of the case, have pleaded that the Complainant had only invested in the flat in question with the Opposite Parties for investment/ resale purpose. It has been further stated that the Company could not hand over the possession of the flat due to reasons of Global meltdown of the economy worldwide/ recession in the reality market, which were beyond their control. However, as per Clause 4.C of the Buyers Agreement the Opposite Parties have bound themselves for any kind of delay in handing over of the possession beyond the period of 36 months from the date of the signing of the Buyer Agreement and such charges shall be adjusted at the time of issuance of notice of possession. It has been further pleaded that the Opposite Parties have every bonafide intention to complete the construction work at the earliest and the possession shall be shortly handed over to the Complainant. The allotment of the flat of the Complainant was never cancelled by the Opposite Parties and hence the question of refunding the amount deposited by the Complainant does not arise. Both the parties are bound by the terms and conditions of the Buyer Agreement dated 13.11.2009 (Annexure C-6), therefore, the Complainant cannot unilaterally cancel the allotment of the said flat. It has been asserted that none of the e-mails were ever received by the Opposite Parties as alleged by the Complainant and hence the question of responding to the same does not arise.  Denying all other allegations Opposite Parties have prayed for dismissal of the complaint.

 

4.      The Complainant also filed rejoinder to the written statement filed by the Opposite Parties, wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Parties have been controverted.

 

5.      Parties were permitted to place their respective evidence on record in support of their contentions.

 

6.      We have heard the learned Counsel for the parties and have also perused the record, along with the written arguments filed on behalf of both the sides. 

 

7.      Admittedly, the Complainant was allotted a residential floor i.e. Ground Floor/Block-A on Plot No.020 in Uniworld City, Sector 17, Mohali by the Opposite Parties in November, 2009 and against it, the Complainant made payment of Rs.5,41,841/-. The execution of Buyers Agreement, between the parties (Ann.C-6), is also admitted. The main grouse of the Complainant is that the Opposite Parties could not complete the construction of the project, as per the terms and conditions of the Sale Agreement. The said Agreement to Sell was executed between the Complainant and Opposite Parties on 13.11.2009. Undisputedly, the construction of the said project has neither been completed nor the possession of allotted unit has been offered or handed over to the Complainant, till now. The plea of the Opposite Parties that the possession of the unit has been delayed due to factors beyond their control/ force majeure circumstances, is not sustainable.  In case, the Opposite Parties were not able to complete the project or offer the possession of the allotted unit to the Complainant, they should have refunded the amount, along with interest, but that was not done.  The Complainant cannot be made to wait for an indefinite period, especially when the period of about 71 months from the date of execution of Agreement to Sell i.e. about 6 years has already elapsed. 

 

8.      Undisputedly, the Opposite Parties have failed to deliver the possession of the unit in question, till date. Therefore, the Opposite Parties cannot wriggle out and are estopped to raise the defence that the Complainant is not eligible to seek refund.

 

9.      Moreover, there is no document on record from the side of the Opposite Parties that they had ever intimated the complainant/ allottees that the construction work has been stranded due to force majeure circumstances as well as detailing such circumstances, which goes to prove that such a plea has been taken only after filing of the present complaint just to reject the genuine claim of the complainant, otherwise it should have been intimated to the complainant well before. Furthermore, the Complainant or any allottee(s) cannot be made to wait for an indefinite period, after depositing part of his hard earned money with the Opposite Parties, just on the ground of force majeure circumstances, especially after the expiry of about double of the period as agreed/ stipulated by the Opposite Parties for handing over the possession, which in the present case is undisputedly 71 months against agreed period of 36 months. Not only this, it is also neither the case nor the assertion or pleading of the Opposite Parties even in the reply that the construction has been completed or likely to be completed in few months, which goes to show that the construction is not likely to be completed in near future and it would take much more time. In these set of circumstances, in our view, the Opposite Parties cannot be granted an infinite period just under the garb of Force Majeure circumstances to linger on the matter. So far as the plea of Opposite Parties that as per the agreement (Cl.4.C), they are liable to pay compensation for the period of delay in offering possession, that also goes against them, because the delay is already proved and undisputed by the Opposite Parties, but still the Opposite Parties did not send any written intimation or communication to the complainant informing him that he is entitled to so much so amount as compensation for delayed period.  In any case, the Opposite Parties cannot be granted double benefits, on the one hand to retain the amount of the Complainant and on the other side not to complete the construction for an unspecified period on the ground of force majeure circumstances. Hence, we find it to be legal & justified to direct the Opposite Parties to refund the amount of the Complainant. 

 

10.      In view of the foregoings, we are of the opinion that the complaint must succeed.  The same is accordingly allowed against Opposite Parties. The Opposite Parties are, jointly and severally, directed as under:-

i)   To refund the amount of Rs.5,41,841/- to the Complainant along with interest @9% p.a. from the date of respective deposits till realization.

ii)  To make payment of an amount of Rs.50,000/- to the complainant towards compensation for mental agony and harassment.

iii) To make payment of an amount of Rs.20,000/- to the complainant towards costs of litigation.

 

 

11.      The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] above from the date of receipt, till it is paid. Further, the compensation amount as per sub-para [b] above shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from cost of litigation as in sub-para [c].  

 

12.      Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

 

Announced

22^nd December, 2015                                            

Sd/-

 (SURJEET KAUR)

PRESIDING MEMBER

 

 

Sd/-

(SURESH KUMAR SARDANA)

MEMBER