Chandigarh

StateCommission

CC/167/2016

Jaskaran Singh Sandhu - Complainant(s)

Versus

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

T.S.Khaira, Gunjan Rishi, Adv.

31 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	167 of 2016
Date of Institution	:	27.04.2016
Date of Decision	:	31.08.2016

 

Jaskaran Singh Sandhu S/o Lt. Col. (Retd.) Gursharan Singh Sandhu, r/o # 2255B, Sector 47-C, Chandigarh through GPA holder Lt. Col. (Retd.) Gursharan Singh Sandhu, S/o Late S.Teja Singh Sandhu, r/o # 2255B, Sector 47-C, Chandigarh.

 

……Complainant

V e r s u s

1. M/s Unitech Ltd., SCO No.189-90-91, Sector 17-C, Chandigarh, through its Director/Authorized Signatory.
2. Second Address :

Unitech Ltd., # 6, Community Centre, Saket, New Delhi 110017, through its Director/Authorized Signatory.

 

                                                    .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  T.S.Khaira, Advocate for the complainant.

Ms. Vertika H.Singh, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

               The facts, in brief, are that the complainant belonging to Merchant Navy i.e. Mariners, wanted to buy a plot for himself and his family in the vicinity of Chandigarh where he could come and peacefully reside alongwith his family. To fulfill his desire, the complainant contacted the Opposite Parties and as per the assurances given by the Opposite Parties, he purchased a plot through the Chandigarh Office of broker firm namely ‘Realistic Realtors Private limited (RRRL)’ and paid the basic installment of Rs.12,50,000/-. It was further stated that the Opposite Parties vide letter dated 29.02.2008 (Annexure C-1) transferred plot No.C-0018 measuring 502.32 sq. yard in the name of the complainant for a sale consideration of Rs.71,58,060/- plus other charges in Block C, Gardens, Sector 97, Uniworld City, Mohali. Thereafter, Buyers Agreement dated 09.04.2008 (Annexure C-4) was executed between the parties. It was further stated that as per Article 4 of the Agreement, possession of the plot was to be delivered within a period of 36 months (3 years) from the date of the Agreement i.e. by 09.04.2011. It was further stated the complainant paid the installments, as per the payment schedule given by the Opposite Parties and, as such, he paid the total amount of Rs.69,04,110/- by 27.08.2010. It was further stated that the complainant and his father visited the local office of the Opposite Parties on numerous occasions but no specific date of handing over of possession was given to the complainant. It was further stated that the complainant and his father kept on pursuing the matter with  the Opposite Parties by writing mails dated 21.05.2013, 14.06.2013, 08.10.2013, 21.01.2014, 05.03.2014, 12.03.2014, 20.03.2014, 02.06.2014, 30.09.2014 & 20.11.2015 (Annexure C-10 colly.), vide which, he requested the Opposite Parties time and again to hand over possession, but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their written version, have stated that this Commission has got no territorial jurisdiction to adjudicate the complaint because Buyer Agreement was executed between the parties at New Delhi ; demand of payment was raised by the Gurgaon office of the Opposite Parties and receipts of the same issued by the Gurgaon Office of the Opposite Parties.  It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint because the amount claimed by the complainant alongwith interest is more than Rs.1 crore. It was further stated that the complainant did not fall within the definition of “Consumer” as per the Consumer Protection Act, 1986 because the complainant is investor, who invested in the said plot for resale purposes but he could not resell the said property due to slump in the real estate market. It was further stated that consumer complaint is not maintainable, and only a Civil Court, could adjudicate the dispute, in question. It was denied that the Opposite Parties had given any kind of assurances to the complainant before booking the plot, as he had not bought the said plot from the Opposite Parties directly but from Realistic Realtors Pvt. Ltd., it was further stated that the allotment of plot was transferred in the name of the complainant from Karmanya Facility Company, as is evident from letter dated 29.02.2008 (Annexure C-1). It was further stated that the period mentioned in the Agreement for delivery of possession of the unit, was only tentative time period, which was subject to force majeure circumstances. It was further stated that the Opposite Parties could not hand over possession of the unit to the complainant, by the stipulated date, as there was global meltdown of the economy worldwide, resulting into cash crunch throughout and also due to some objection raised by the Punjab State Power Corporation Limited (PSPCL), a number of times and, as such, electricity could not be made available at the site, due to which, construction work at the site was delayed. It was further stated that despite all the odd conditions, the Opposite Parties are making sincere efforts to hand over possession of the said unit, to the complainant. It was further stated that the Opposite Parties are entitled for reasonable extension of time in handing over of possession, as per the Agreement. It was further stated that the Opposite Parties vide letter dated 03.02.2016 had applied to GMADA for issuance of partial completion certificate (Annexure OP-3). It was denied regarding receipt of any email from the complainant. It was further stated that the complainant and his father never visited the office of the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

3.           The complainant, filed replication to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

4.           The Parties led evidence, in support of their case.

5.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

6.           Admittedly, vide letter dated 29.02.2008 (Annexure C-1) plot bearing No.C-0018 in Gardens (Sector 97), Uniworld City, Mohali was transferred in the name of the complainant. It was also the admitted fact that Buyer’s Agreement was executed between the parties on 09.04.2008 (Annexure C-4). It was also the admitted fact that the complainant deposited the total consideration of Rs.69,04,110/- in respect of the unit, in question. 

7.           The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. The Opposite Parties stated in their written statement that the Buyer Agreement was executed between the parties at New Delhi and the receipts of the payments issued by the Gurgaon office of the Opposite Parties, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint.

              According to Section 17 of the Act, a consumer complaint could be filed by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case,  it is clearly mentioned on the Buyer’s Agreement dated 09.04.2008 regarding the Marketing office of Unitech Ltd. is ‘SCO 189-90-91, Sector 17-C, Chandigarh.’ Not only this, it is further evident that the communications exchanged between the Unitech with Govt. Authorities – Annexure OP-2 (Colly.) at page Nos. 105, 106, 110, 111, 112, 113, 114, 115, 116, 119 and 121 clearly mentioned the Chandigarh address of the Opposite Parties. Moreover, on page Nos. 114 and 115, the round stamp of Regional Office of Unitech Limited, Chandigarh were affixed. Since, as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh and, therefore, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

8.            As far as the objection raised by Counsel for the Opposite Parties, with regard to pecuniary jurisdiction, on the ground that the complainant prayed for possession of the plot and in the alternative prayed for alternative property to the complainant or refund the complete amount of Rs.69,04,110/- alongwith interest @10% p.a. and compensation & litigation expenses of Rs.5 lacs, as such, the amount alongwith interest, compensation and litigation costs, as claimed by the complainant, exceeds beyond Rs.1 crore and, as such, this Commission has no pecuniary jurisdiction to try and entertain the complaint. It may be stated here, that the complainant has sought possession of the plot ; monthly charges of Rs.25116/- @Rs.50/- per sq. yard per month from 09.04.2011 and in the alternative, alternative property or refund the complete amount of Rs.69,04,110/- with interest @10% p.a. alongwith compensation for harassment and litigation expenses to the tune of Rs.5 lacs, aggregate value whereof [excluding the interest claimed], if clubbed together, fall above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint, for the reasons given hereinafter.

                As far as the interest claimed by the complainant, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by the Opposite Parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

9.          The objection taken by the Opposite Parties, to the effect that the complainant being investor, did not fall within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, also deserves rejection. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the plot/unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant being investor, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

10.          Another objection was raised by Counsel for the Opposite Parties that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the unit, in the manner, referred to above. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section  3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls within the definition of consumer. In this view of the matter, the objection taken by the Counsel for the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.          The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant. Counsel for the Opposite Parties states that no date was ever committed for possession by the Opposite Parties and the period of 36 months was a tentative time period, which was subject to any force majeure circumstance. Article 4.a (i) of the Buyer’s Agreement dated 09.04.2008 (Annexure C-4) reads as under :-

“4.a. Delivery of Possession :

i)     That the possession of Plot shall be delivered by the Developers to the Allottee(s) within 36 months hereof subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the intending Allottee(s) as provided herein have been paid to the Developers. It is, however, understood between the Parties that various Plots comprised in the Township shall be ready in phases and handed over accordingly.”

A bare perusal of the afore-extracted article reveals that the Opposite Parties cleverly did not mention as to from which date the period of 36 months would start. It may be stated here that there is no allotment letter on record, the Agreement entered into between the parties will prevail and this 36 months period for handing over the possession would start from the date of this Agreement. So, it is presumed that possession of the unit was to be delivered within a period of 36 months from the date of signing of the Agreement and the said period has expired on 08.04.2011. Admittedly, possession of the unit, was not delivered to the complainant, by the stipulated time frame, as mentioned in the Agreement i.e. by 08.04.2011 or even till date. Even, in their written version, the Opposite Parties frankly admitted that the Company could not hand over possession of the unit due to recession in the market/global meltdown, and also on account of non-provision of electricity in the said project, by the Punjab State Power Corporation Limited (PSPCL). Even partial completion certificate has not been obtained by the Company, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the unit. Admission made by the Opposite Parties, itself makes it clear that it had not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, it was not provided with electricity, for the project in question. Secondly, when the Opposite Parties, had already received huge amount from the allottee(s), then it does not lie in their mouth, that they faced extreme financial hardship, due to recession in the market, as far as the project, in question, is concerned. It is that the Opposite Parties were, in the first instance, required to develop the project, by arranging funds out of their own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this not been the case of the Opposite Parties, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission.

              Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction of unit(s). A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lock-out or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the Company or the contractors engaged by it, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of the project, within the time stipulated in the Agreement(s). A similar question fell for determination before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others vs. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the  complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

12.         The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. By making a misleading statement, that  possession of the unit, in question, would be delivered within a period of 36 months i.e. by 08.04.2011, but on the other hand, by not abiding by the commitments made, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.

13.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.69,04,110/-, deposited by him. It is an admitted fact that the Opposite Parties are unable to deliver  possession of the unit, in question, and firm date of delivery of possession of the unit, could not be given to him (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the Opposite Parties failed to prove, by placing on record, any cogent and convincing material, that it encountered any force majeure circumstances, as a result whereof, possession of the unit, in question, was delayed. On the other hand, stand taken by the Opposite Parties, in this regard, has been negated by this Commission, while giving detailed findings. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is, thus, entitled to get refund of amount deposited by him.

14.          It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. It is not in dispute that an amount of Rs.69,04,110/-, was paid by the  complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded quarterly @18% p.a.) as per Article 2.c. of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.69,04,110/- alongwith interest @10% p.a., as prayed for, from the respective dates of deposits (less than the rate of interest charged by the Company, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.

15.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment caused to him. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant(s). The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant suffered a lot of mental agony and harassment, at the hands of the Opposite Parties, for a number of years, as it neither delivered physical possession of unit nor refunded the amount to the complainant. The complainant purchased the unit for living with his family peacefully, but his hopes were dashed to the ground. Till date, physical possession of the unit, has not yet been given, to the complainant, by the Opposite Parties. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

16.          No other point, was urged, by the Counsel for the parties.

17.          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 Rs.69,04,110/-, to  the  complainant, alongwith interest @10% p.a. (as prayed),  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 complainant.

 

3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.

 

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 @12% p.a., instead of @10% p.a., from the respective dates of deposits onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

18.          Certified Copies of this order be sent to the parties, free of charge.

19.          The file be consigned to Record Room, after completion.

Pronounced.

August    31, 2016.                                        Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

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 (PADMA PANDEY)

        MEMBER

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