BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No. 299 of 2015

                                 Date of institution:          25.06.2015

                                                 Date of Decision:            15.03.2016

1.     Yogesh Kumar Jalota son of Sirtej Kumar Jalota

2.     Smt. Anita Jalota wife of Yogesh Kumar Jalota

Both residents of House No.72, Defence Colony, Jalandhar (Punjab).

                                     ……..Complainants

                                        Versus

1.     M/s. Unitech Limited, a Public Limited Company duly incorporated under the Companies Act 1956, having its registered office at 6, Community Centre, Saket, New Delhi -110017 through its Managing Director.

2.     M/s. Unitech Limited, a Public Limited Company duly incorporated under the Companies Act 1956 (Real Estate Division – Marketing), 5^th Floor, Tower-A, Signature Towers, South City-1, NH-8, Gurgaon, Haryana through its CEO Mr. Ramesh Chandra.

3.     Managing Director of M/s. Unitech Limited, a Public Limited Company duly incorporated under the Companies Act 1956, having its registered office at 6, Community Centre, Saket, New Delhi -110017.

4.     M/s. Unitech Limited, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO 189-91, Sector 17-C, Chandigarh 160017 through its Manager.

5.     M/s. Alice Developers Pvt. Ltd., a Public Limited Company duly incorporated under the Companies Act 1956, having its registered office at Basement, 6, Community Centre, Saket, New Delhi -110017 through its Managing Director.

                                                             ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Harish Chhabra, counsel for the complainants.

Ms. Vertika H. Singh, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

1. Produce the entire records of the case in the Forum.
2. Refund them the amount of Rs.5,41,873/- alongwith interest @ 18% per annum from the date of receipt of payment till its realisation.
3. to pay them compensation to the tune of Rs.1,34,625/- on account of delay (i.e. for 25 months @ Rs.5/- per sq. ft. per month of the saleable area of the flat).
4. to pay them Rs.2.00 lacs on account of mental tension, agony and harassment.
5. pay them Rs.51,000/- as cost of litigation.

                The complainants applied for a flat with the OPs by paying a sum of Rs.2,57,000/- through cheque dated 22.09.2009. Flat No.0148 in Block No. A, Ground Floor at Unihomes Sector 107, Uniworld City, Mohali  was allotted to the complainant vide  allotment letter dated 26.09.2009 alongwith payment schedule.  The total sale price of the flat was Rs.28,31,304/- inclusive of Basic Price and External Development Charges and preferential location charges, if any.  The area of the flat was measuring 191.36 sq. yard with saleable area of 1077 sq. yards. The payment was to be made under Construction Linked Plan.  The complainant paid further amount of Rs.2,84,873/- against demand notice from the OPs. Sale agreement dated 24.05.2010 containing Annexure A as payment plan and Annexure B as specifications was executed.  Thereafter, the complainants paid another sum of Rs.8,50,000/- to the OPs on 20.06.2011. Thus in all the complainant made payment of Rs.13,91,873/- towards consideration of the flat in three installments.  As there was no construction activity at the spot, the OPs refunded an amount of Rs.8,50,033/- to the complainants.  As per Article 2. A (iii) of the Sale Agreement dated 24.05.2010 the OPs were to carry out the internal development/services, such as, laying of roads, laying of sewer etc. within the peripheral limits of the complex and also provision of external development and/or peripheral services such as water, storm water drains, roads, electricity, horticulture etc.  There is no construction at the spot even after lapse of almost 6 years. As per Article 4.a(i) of the sale agreement, the possession of the flat was to be given by the OPs within 36 months from the date of signing of agreement.  The OPs also agreed to pay charges @ Rs.5/- per sq. ft. per month of the saleable area for the period of delay in offering possession of the flat beyond the period indicated in Clause 4.a (i) of the Sale Agreement. As there was no construction at the spot, the complainant asked the OPs vide their letter dated 05.08.2014 followed by e-mails dated 15.08.2014, 29.09.2014 and legal notice dated 05.05.2015 for refund of the amount but the OPs have not given any response.  With these allegations the complainant has filed the present complaint.

2.             The OPs in the preliminary objections of their written statement have pleaded that this Forum does not have the territorial jurisdiction to adjudicate the present complaint as the buyers agreement was executed between the parties at New Delhi.  The complainants have made the payment through cheques payable at New Delhi. The complainants are simply investors who invested for re-sale purposes. As they could not resell the property due to slump in the market, thus they have filed the present complaint. The complainants are not consumers as defined under the Consumer Protection Act. No cause of action has arisen to the complainants to file the complaint against the OPs. As per Clause 9 (b) of the Buyers agreement the developer shall be entitled to reasonable extension of time in handing over of the possession in case of Force Majeure circumstances.  The OPs have been severely affected by the global market recession in the real estate market due to which the OPs are facing utter financial hardship which are the conditions beyond the reasonable control of the OPs. Thus, the possession has been delayed.  Article 11 of the Buyers Agreement specifically provides that in case the allottee fails to observe any of the stipulations contained in the agreement the developer shall be entitled to forfeit the entire earnest money alongwith the interest paid on the delayed payment till the time of such breach.  On merits, the OPs have pleaded that the complainants have requested for refund of Rs.8.50,000/- as the construction had delayed. The OPs refunded the amount of Rs.8,50,033/- on 22.03.2012.  The amount of Rs.5,41,840/- was paid by the complainants at the time of registration. Thereafter, none of the installments have been demanded by the OPs. The OPs have not committed any date for possession. The period of 36 months was tentative  which was subject to force majeure circumstances.  The OPs could not handover the possession of the flat due to Global meltdown of the economy worldwide wherein the Foreign investors 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.  As per Clause 4 ( c) of the agreement, the OPs are liable to pay charges @ Rs.5/- per sq. ft. per month of the saleable area of the floor for the period of delay in offering the possession. However, the delay charges are subject to any reason beyond the reasonable control of the developer.  The OPs have denied receipt of letters, emails and legal notice dated 05.05.2015 from the complainants.  Thus, denying any deficiency in service or unfair trade on their part, the OPs have sought dismissal of the complaint.

3.             To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-14 and newspaper cutting Mark-A.

4.             Evidence of the OPs consist of affidavit of Lalit Gupta, their authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1/2and Ex.OP-1/3.

5.             We have heard learned counsel for the parties and gone through the written arguments filed by them.

6.             The agreement dated 24.05.2010 Ex.C-6 for purchase of ground floor Block-A on Plot No.148 on plot area of approximately 160 sq. meters (approximately 191.36 sq. yards) and saleable area of floor 100.06 sq. meters (approximately 1077 sq. ft. approximately) in ‘Unihomes’ to be developed by the OPs in the Mega Township known as Uniword City, Sector 107, Mohali Punjab is admitted. As per agreement against the total sale consideration of Rs.28,31,304/-, the complainants have paid a sum of Rs.13,91,873/- as on 20.06.2011 upto the third installment. The remaining installments were to be paid as per construction linked plan. Since the OPs have not started the construction even after lapse of five years from the date of registration of the said agreement, the OPs have in the event of non development and construction of the area have been enjoying the money of the complainants without rendering any service or making any efforts to complete the sale transaction of the floor in question. Once the complainants learnt about the fact that the OPs were not having necessary approvals, therefore, vide letter dated 16.03.2012 Ex.C-7 asked the OPs to refund them the advance deposit of Rs.8,50,000/- The OPs accordingly made refund of Rs.8,50,033/- to the complainants vide cheque dated 22.03.2012 forwarded to the complainants vide letter dated 24.03.2012. Again the complainant visited the site and found that there is no construction activity going on at the proposed site. As per agreement Ex.C-6 the possession was to given within 36 months which date has expired on 24.05.2013. Accordingly, the complainants vide letter dated 05.08.2014 Ex.C-10 requested the Ops to refund the remaining amount of Rs.5,41,873/-. This request of the complainant was followed by various e-mails and legal notice. Neither the amount has been refunded nor have the OPs offered them the possession.

7.             It is an undisputed preposition of law that the parties are bound by the terms and conditions of the contract voluntarily agreed by them. The perusal of contents of Ex.C-6 clearly stipulates that the OPs were to handover the possession of the property in question to the complainant within 36 months from the date of signing of the agreement and the said date expired on 24.05.2013. The OPs have failed to show issuance of any offer of possession to the complainants by the said stipulated date. Further the OPs have failed to show the development and construction at site for demand of third installment onwards as the said installments were to be paid by the complainant as per construction linked plan. The only plea taken by the OPs that they failed to adhere to the agreed time frame taking the shelter under force majeure clause due to market slow down including economic slowdown and recession in real estate sector. We do not agree with such contentions of the OPs. The OPs have failed to produce any material on record to show the reasons which stopped them to complete the construction of the project within the stipulated period as mentioned in the buyer’s agreement.  Thus, the delay in construction of the apartment/floor is due to the inactions of the Ops and cannot be contributed to any reasons mentioned in Clause 4.a (ii) of the buyers’ agreement. 

8.             Since the OPs have failed to show the steps taken by them for offer of possession, the complainants cannot be deprived of the benefits of their amount which was lying with the deposited since 19.12.2009 and being used by the OPs without any cause. The letter dated 05.08.2014 Ex.C-10  followed by e-mails and legal notice dated 05.05.2015 Ex.C-13 and remained unanswered in the hands of the OPs. By not doing so the OPs have indulged into unfair trade practice causing financial loss and mental agony and harassment to the complainants.   Thus, the complaint deserves to be allowed and the complainants deserve to be compensated.

9.             In view of above discussion, the complaint is allowed with the following directions to the OPs to;

(a)    to refund to the complainants total deposited amount of Rs.5,41,873/- (Rs. Five lacs forty one thousand eight hundred seventy three only) alongwith interest @ 12% per annum from the respective dates of deposits till actual payment.

(b)    to pay to the complainants a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.

                   Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

March 15, 2016.     

                            (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                 Member