Chandigarh

DF-I

CC/844/2015

Mrs. Rajni Gill - Complainant(s)

Versus

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

Gajender Singh

09 Feb 2017

ORDER

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

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

Consumer Complaint  No	:	844 of 2015
Date  of  Institution	:	18.12.2015
Date   of   Decision	:	9.2.2017

 

 

 

 

 

Mrs. Rajni Gill w/o Capt. Amardeep Singh Gill r/o H. No. 448, Sector 7, plot 11, Air Force  Naval Enclave Dwarka, New Delhi-110075.

….Complainant

Vs.

 

1. M/s Unitech Ltd. 6 Community Centre, Saket New Delhi 110075, through its Managing Director.

 

2. M/s Unitech Ltd. SCO 189-90-91, Sector 17-C, Chandigarh 160017, through its Marketing Officer.

 

…… Opposite Parties 

 

BEFORE:  

 

MRS.SURJEET KAUR                  PRESIDING MEMBER

SH. SURESH KUMAR SARDANA          MEMBER

 

 

For Complainant	:	Sh. R.D. Vinayak, Adv.
For OPs	:	Smt. Vertika H. Singh

PER SURJEET KAUR, MEMBER

 

 

 

                The facts, in brief, are that complainant purchased Unit No.020A on the second floor comprising 650 Sq. ft. super area situated in Downtown Retail building in the Mega project of the OPs. An  Agreement dated 13.4.2012 was executed between the parties. The total price of the unit in question was Rs.16,25,000/- out of which the complainant had already paid Rs.14,62,500/-. The remaining amount was to be paid on or prior to possession.  As per agreement the possession of the Unit was to be delivered within 36 months from the date of agreement i.e. by 12.April 2015 but till date despite lapse of more than 44 months same was not delivered.  It is pleaded that OPs agreed to pay the complainant Rs.42.70 per sq. ft. per month as assured return in arrears on quarterly basis after deducting  TDS from the date of agreement till the final demand notice for physical possession of the unit in question.  However, the assured return payment by the OP is not regular. The last payment was received by the complainant for the period 1.1.2014 to 30.6.2014 and they have not paid arrears of assured return for the period from 1.7.2014 till date as detailed in para 5 of the complaint.  It is alleged that the OPs neither paid the arrears quarterly nor within a reasonable time of 7 days after the expiry of the quarter for which the assured return was due.  It is pleaded that the OPs are not only liable to pay the arrears amount but also liable to pay interest for delay payment. The complainant took the matter with the OPs but nothing fruitful came out. Alleging that the aforesaid acts amounted to deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has filed the instant complaint.

2.      Notice of the complaint was sent to Opposite  Party, seeking its version of the case
3.           The OPs filed their joint written statement wherein took preliminary objection to the effect that this Forum has no territorial jurisdiction  to decide the complaint as the Memo of Understanding and agreement between the parties were executed at New Delhi and the payments were made by the complainant at new Delhi whereas the property is at Mohali. It is further asserted that the OPs could not hand over the possession of the unit in question due to financial hardship as foreign investor have refrained from any kind of investment in India due global meltdown of the economy worldwide.  As such, the OPs are facing extreme cash crunch through and these circumstances are beyond the control of the OPs. Apart from this, the OPs are also facing problem of providing electricity in the area as the PSPCL raising objections on one pretext or other.  Due to various formalities and objections raised by the PSPCL the electricity could not be availed by the OPs earlier due to which the construction work at the site was delayed.  Despite this, the OPs are making all the efforts to complete the development work.  It is further asserted that as per clause 4.5. t he date of delivery of possession of the unit was subject to force majeure circumstances beyond the control of the developer. The remaining allegations were denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made. 
4.           The complainant has filed a rejoinder, wherein he has reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties.
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 perused the record carefully.
7.      The first objection of the OPs is with regard to territorial jurisdiction of this Forum. As per OPs, the MOU and Agreement between the parties both were executed  at New Delhi and even payments were made by the complainant at New Delhi and the property is at Mohali and as such the this Forum has no jurisdiction to decide the present case.  To deal with this objection of the OPs Section 11(2) of the Consumer Protection Act, is reproduced as under:-

“11 (2)   A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:

(a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c)     the cause of action, wholly or in part, arises. 

 

8.      In view of the afore-extracted section, we are of the opinion that as the Consumer Protection Act, is a social piece of legislation, it is to be interpreted in a manner that object of the Act is achieved i.e. to protect the right of the consumer. Sub-clause (b) of Section 11(2) referred to above widens the scope of territorial jurisdiction of the District Forum in respect of companies whose Branch offices are also situated in the territorial jurisdiction of the Fora to enable them to entertain the complaints against such companies.  All the three clauses (a) (b) and (c) reproduced above are independent and if the case falls under any of them, the District Forum of that particular place will have jurisdiction of such a Forum to entertain the complaint.

          Keeping in view the above  Clause of the Consumer Protection Act, 1986, we are of the opinion that the present complaint lies very much in the territorial jurisdiction of this Forum.  

9.      The case of the complainant is that he paid an amount of Rs.14,62,500/- towards the price of the unit in question against the total price of Rs.16,25,000/- and the remaining amount was to be paid at the time of possession. The sole grouse of the complainant is that despite taking huge amount from the complainant the OPs did not make sincere effort to provide possession of the unit within stipulated time of 36 months from the date of agreement. It has also been pleaded that the OPs agreed to pay Rs.42.70  per sq. ft. per month as assured return in arrears on quarterly basis after deducting TDS from the date of agreement till final demand notice for physical possession of the unit in question. But the assured return was not regular  and the last payment thereof was received for the period from 1.1.2014 to 30.6.2014 and the arrears of assured return for the period from 1.7.2014 till date has not been paid.
10.      The stand taken by the OPs is that the period of 36 months as per the agreement was tentative and the same was subject to force majeure circumstances.  It has also been contended that the OPs are facing problems with regard to providing of electricity in the said area as the concerned department is raising objections on one pretext or the other.  It has been further contended that despite all the odd conditions, the OPs are making every possible effort to complete the development works at the site. 
11.      Evidently as per clause 5 of  the MOU Annexure C-1 the OPs promised the complainant to pay Rs.42.70 per sq. ft per month of the super area as arrears return on quarterly basis. As per the complainant the same was paid by the OPs till 30.6.2014 and afterwards no arrears was paid to the complainant till date. Meaning thereby the OPs were well aware about this clause of the MOU and they rather than continuously paying the complainant as per the clause referred to above took shelter of force majeure circumstances claiming that due to that reason they did not offer possession of the unit. Primarily the action of the OPs in taking advance money from the innocent consumers for their proposed project despite the fact that no requisite permission for the same is taken, itself amounts to unfair trade practice. Further even if the funds were collected from the consumer there is nothing on record that  they made their sincere efforts for giving possession to the complainant after completing their construction work or failing which the compliance of their own clause 5 of the MOU according to which they had to pay arrears to the allottees, clearly points out that they are deficient in rendering proper service and are indulged in unfair trade practice.  Certainly, this act of the OPs caused mental agony and physical harassment to the complainant.  Hence, the complaint is liable to be allowed.
12.      In view of the above, we find merit in this complaint and the same is allowed against the OPs in the following manner.
    1. To pay the remaining assured arrears as per clause 5 of the MOU to the complainant w.e.f. 1.7.2014 till the possession is delivered.

 

2. To pay Rs.20,000/- for causing mental agony and physical harassment to the complainant.

 

 

3. To pay Rs.10,000/- towards costs of litigation.

 

     The above said order shall be complied with by the OPs within 30 days from the date of receipt of certified copy of this order failing which they shall be liable to pay interest @12% p.a. on the amounts at (a) from the date 1.7.2014 till payment and at (b) from the date of filing this complaint till realization in addition to payment of cost of litigation.

     The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

 

Announced

9.2.2017           

Sd/-

 (SURJEET KAUR)

PRESIDING MEMBER

 

Sd/-

 (SURESH KUMAR SARDANA)

MEMBER