Haryana

Ambala

CC/2/2016

Chander Mohan Sehgal - Complainant(s)

Versus

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

Mohit Sehgal

29 Jan 2018

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                                       Complaint case no.  : 02 of 2016

                                                                        Date of Institution    : 01.01.2016

                                                                        Date of decision       : 29.01.2018.

 

1.         Chander Mohan Sehgal s/o Sh. Dina Nath Sehgal, aged about 66 years,

2.         Ms. Pooja Sehgal w/o Sh. Mohit Sehgal, aged about 38 years both residents of H.No.2888, Ward No.2, Amabla City.

……. Complainants.

Vs.

 

1.         M/s UNITECH LTD. through its Managing Director, Signature Towers, Ground Floor, NH-8, South City-1, Gurgaon (Haryana)

2.         M/s UNITECH Ltd. through its Managing Director Regd. Office6, Community Centre, Saket, New Delhi-110017.

3.         Incharge office of UNITECH LTD. UHIHOMES Sector-16, Ambala City, Haryana.

 ….….Opposite Parties.

 

Before:           Sh. D.N. Arora, President.

                        Sh. Pushpender Kumar, Member.

Ms. Anamika Gupta, Member.                              

 

 

Present:          Sh. C.M.Sehgal, counsel for the complainant.

Sh. Abhishek Kathuria, counsel for OPs.

 

ORDER:

S.No.               Payment Description                                Date                       Amount(Rs)

1                      At the time of Booking                            15.04.2011             184000.00

2                      Within 45days of Booking                      30.05.2011             184000.00

3                      Within 90 days of Booking                     14.07.2011             184000.00

4                       *on Comen. Of construction                          /  /                   210684.00

5                      On completion of foundation work                /  /                   164684.00

6                      On casing of. G.floor Roo                              /  /                    164684.00

7                      On casting Ist floor Roof                               /  /                     164684.00

8                      On casting 2^nd floor Roof                             /  /                       138000.00

9                      On compl.brick work                                   /  /                         92000.00

10                    On compl. Of flooring                                           /  /                           92000.00

11                    On compl. Of electrification                     /  /                            92000.00

12                    On compl. Of interal plumbing                /  /                             92000.00

13                    On compl. Of External Plaster                /  /                             92000.00

14                    On final notice of poss                           /  /                             92000.00

                                                                                    (+SDC & other Misc Charges)___

            Total Amount:-                                                                                   1946736.00

 

This installment and the subsequent installment(s) in the above installment Plan shall become payable on demand irrespective of the serial order in which they are listed above.

Note: Service Tax as applicable will be charged extra.

After confirming the allotment of flat, there after a buyer’s agreement was made on 20.05.2011 and thereafter, as per the payment plan the complainant thereafter has deposited the following installments:

The complainant has totally deposited Rs. 7,84,734/- in the office of OPs against proper receipts. The remaining payments were to be made after commencement of the construction as per schedule. The fourth installment was to be taken on commencement of the construction but the OPs without commencement of any type of construction raised the demand of fourth installment and the complainant paid the same, though the OPs have not commenced the construction work and hence the OPs have cheated the complainant. He also stated that even after depositing of the booking amount in April, 2011 no construction what so ever hence commenced in Ambala till today. He further stated that the OPs were bound to hand over the possession of the flat within 24 months from date of signing the agreement. But the OPs failed to deliver the possession of the flat as per agreement. The complainant made repeated verbal requests to the OPs by visiting their local branch asking of the OPs to compensate the complainant for blockage of the money deposited by the complainant but the OPs only kept on giving false assurance of doing the needful very shortly. In this way, the complainant has suffered a financial loss and mental harassment. Hence, the present complaint.

2.                     Upon notice, Ops appeared through counsel and tendered separate written statement and stated that raising preliminary objections qua complaint is not maintainable being false & frivolous, no locus standi and cause of action and the no jurisdiction. On merits, learned counsel for the OPs have been submitted that the complainants visited the local branch if the OPs. The complainants were never given any kind of false assurances. Further, it is pertinent to mention that in the present case the company could not hand over the possession of the flat due to reasons of Global meltdown of the economy worldwide wherein the Foreign Investors, as anticipated by the OPs, have refrained from any kind of investment in India and there is a total cash crunch throughout. The OPs are facing extreme financial hardship due to the recession in the reality market. All these circumstances were beyond the control  of the OPs. They further stated the all the aforesaid problems faced by the OPs, the construction work is in full swing and the possession shall be handed over to the complainant at the earliest. Moreover, the penal interest @ 18% charged by the by the OPs is a part of terms and conditions of te Buyer Agreement wherein vide Clause 2(C) of the agreement it was mutually agreed upon between the parties that the purchaser shall be liable to pay interest calculated from due of outstanding amount @18% P.A. compounded quarterly in case any delay is made by the complainant in payment of installments or other charges as per the payment plan.  Further, the complainants are duly entitled for compensation as per  Clause 4 ( C ) of the Buyer Agreement whereby the developer shall be liable to pay  to the complainants  delay charges @Rs.4/- per sq. ft. per month of the super area of the floor for the period  of delay in offering  the possession of the said floor beyond the period of 24 months save and except where delay  occur for reasons beyond  the control of the developer. It has also been mutually agreed between the parties that these charges shall be adjusted at the time of offer of possession. So, there is no deficiency in service on the part of OP No.3 and prayed for dismissal of the present complaint.

3.                     To prove his version complainant tendered affidavit as Annexure C-X with documents as annexure C-1  to C-10 and close his  evidence. On the other hand, Counsel for the OPS tendered affidavit of Lalit Gupta as Annexure R-X alongwith documents as Annexure R-1 and closed their evidence.

4.                     We have heard learned counsel for the parties and carefully gone through the case file.

5.                     During the proceedings of the case the complainant made a statement that he does not claim the possession of the flat as the same has not been constructed by the OPs and prayer for refunding the installments alongwith interest and cost assessed by this Forum be made.

6.                     Keeping in view the above statement there is no need to discuss the case further on the point of pecuniary jurisdiction of this Forum because the relief sought by the complainant is less than Rs.20 lacs. It is a settled principle of law that the complainant being a master of his case can relinquish his right at any stage. It is an admitted fact that only Rs.7,84,734/- has been deposited with the OPs by the complainant. Perusal of the case file reveals that in para No.4 of the reply the OPs have submitted that it is pertinent to mention here that in the present case the company could not handover the possession of the flat due to reasons of Global Meltdown of the economy worldwide wherein the foreign investors as anticipated by the OPs have refrained from any kind of investment in India and there is a total cash crunch throughout. The OPs are facing extreme financial hardship due to the recession in the reality market and all these circumstances were   beyond their control.  Even otherwise as per the clause 4.a (i) & (ii) of agreement Annexure C1- which is reproduced as under:

                        4.a. Delivery of Possession:

(i)        That the possession of the floor is proposed to be delivered by the developer to the purchaser (s) within 24 months of signing hereof subject to Force Majeure circumstance and upon registration of sale deed provided all amounts due and payable by the purchaser (s) under this agreement have been paid to the developers within the stipulated period. It is, however, understood between the parties that various floors in the complex shall be ready and be completed in phases and handed over to the allottees accordingly.

(ii)       That it is agreed that developers shall also be entitled to reasonable extension in time for delivery of possession of the floor on account of any default or negligence attributable to the purchase (s) fulfillment of obligations under the agreement.

                   In view of above discussion it is clear that the OPs are not in a position to handover the possession of the flat in complete manner to the complainant as mentioned in Clause 4.a (i) & (ii) of the Buyer’s Agreement Annexure C10 which was executed on 31.05.2011. The OPs had to commence the construction on 14.07.2011 as per agreed schedule but till today nothing has been done and even there is no evidence on the case file to show that the Ops have ever taken any step to construct the same in future. It is not disputed that booking of residential flat was booked initially on 15.04.2011 and last payment was made on 21.07.2011. In this way non delivery of possession tantamounts to unfair trade practice as well deficiency in service on the part of OPs as they failed to deliver the possession of the unit within stipulated period as mentioned in the agreement nor any explanation has been given as to why the work has not been completed within 24 months. The complainant cannot be made to wait for indefinite period for delivery of actual physical possession of the unit. The OPs have no right to retain the hard earnest money of the complainant deposited towards the price of the unit.  On this point reliance can be taken from case law titled as Guddi Vs.Ubber Buildcon Private Ltd. 1 (2018) CPJ (UT Chandigarh) . In this case law Hon’ble State Commission has accepted the complaint of the complainant by relying upon the case law titled as UOI Vs. Tata Chemical Limited (SC) 1 (2015) SLT  11.

                   The fact and circumstance clearly states that we have no option but to accept the statement made by the complainant during the proceedings of this complaint and therefore, we have concluded that he is entitled for the refund of the amount of Rs.7,84,734/- deposited alongwith @ 9 % per annum from the respective dates of the deposit onwards besides cost of proceedings to the tune of Rs.10,000/- . It is ordered accordingly. The Ops are directed to comply with the above said directions within thirty days from receipt of copy of the order. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

 

Announced on:29.01.2018                                   (D.N. ARORA)

                                                                                       President

 

    

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               (PUSHPENDER KUMAR)

                                                                                       Member

 

 

                                                                               (ANAMIKA  GUPTA)

Member