STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Unitech Ltd. Regd. Office, 6, Community Centre, Saket, New

Delhi-110 017 through its Managing Director;

Local Office:- SCO 189-190-191, Level-1, Sector 17-C, Chandigarh.

……Appellant

V e r s u s

1.  Sh. Pushpinder Singh Sidhu,  s/o Shri Harmel Singh Sidhu, R/o Sidhu House, Lehal, Patiala, through his General Power of Attorney, Janinder Jain s/o Sh. Om Parkash Jain, R/o House No.2546, Sector 47-C, Chandigarh.

2.  J.D. Realtors Ltd., SCO 317-318, Level 1, Sector 35-B, Chandigarh-160 022 through its Director.

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (Retd.), PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by:  Sh. Rahul Garg, Advocate for the appellant.

                   Respondents already exparte.

PER  JUSTICE SHAM SUNDER(Retd.),  PRESIDENT

1.        This appeal is directed against the order dated 02.03.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint, and directed the Opposite Parties, as under:-

“From the above analysis of the case as well as thoroughly considering the pleadings and viewing the evidences & documents filed by both the parties, consequently, it is proved beyond doubt, that the deficiency in service, on the part of OPs, is writ large, as the OPs have failed to refund the initial amount deposited by the complainant i.e. Rs.6.50 lacs, as requested. Therefore, we opine that the complaint must succeed, as it has lot of merit, weight and substance. The same is accordingly allowed. The OPs are, jointly & severally, directed to refund a sum of Rs.6.50 lacs, along with interest @12% per annum from the date of deposit/encashment i.e. 20.6.2006 till its actual payment to the complainant, apart from Rs.15,000/- as litigation cost.

This order be complied with by the OP, within one month, from the date of receipt of the copy of the order, failing which they would be liable to pay the above awarded amount, alongwith interest @ 15% p.a. instead of 12% p.a., from the date of deposit/encashment i.e. 20.6.2006 till its actual payment to the complainant, besides paying Rs.15,000/- as litigation cost”.

2.               The facts, in brief, are that the complainant, booked a flat with Opposite Party No.1, through Opposite Party No.2 (authorized agent of Opposite Party No.1), by paying an initial sum of Rs.6,50,000/-, vide cheque dated 14.6.2006 (Ann.C-2).  The Project was finally launched by Opposite Party No.1, in July 2007, as a result whereof, allotment letter dated 31.7.2007 (infact 07.11.2006),  for Apartment No.204, Floor-02 of Super Area 194.7248 sq.mtr. (approx. 2096 sq.ft.), HBTN Tower-08, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, was issued to him. It was stated that on perusal of the details, set out in the allotment letter, it was revealed that the actual area design etc., of the apartment, in question, were not as per the representation, made earlier by Opposite Party No.2. It was further stated that the complainant was induced by Opposite Party No.2, to deposit the amount aforesaid, at the pre-launch stage. It was further stated that since the project never turned out to be, as promised and shown, the complainant did not accept the allotment letter/contract. It was further stated that the complainant, expressed his desire,  to have his application money refunded to him, which was deposited  alongwith the application at the pre-launch stage. It was further stated that the complainant, visited Opposite Parties, a number of times, seeking the refund of amount, and even went to the site at Noida, but did not find any trace of the project coming up even in the beginning of the year 2008. It was further stated that this showed that the complainant had been befooled by the Opposite Parties, by inducing him to part with the hard earned money, deposited by him. It was further stated that Opposite Party No.1, instead of refunding the amount, started claiming more money from the complainant, without considering the fact that the complainant had never accepted the allotment letter-cum-contract. A notice dated 31.3.2010  vide Ann.C-4, was sent to Opposite Party No.1,  at Gurgaon and Noida Office, for refund of the amount, in question, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

3.               Opposite Party No.1, in its written version, pleaded that the complainant was not a consumer. It was further pleaded that the complaint was barred by time. It was stated that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint, as there was an arbitration clause, contained in the allotment letter, and the matter was referable to the Arbitrator. It was admitted that a sum of Rs.6,50,000/-,  for booking the apartment, was deposited by the complainant, at pre-launch stage of the scheme. It was further stated that the allotment letter Annexure A-1, duly signed by the complainant, was sent to him, which contained all the terms and conditions. It was denied that any communication was received by Opposite Party No.1, from the complainant, for the refund of amount. It was further stated that, on the other hand, Opposite Party No.1, had been asking the complainant, to make the payment of installments, as per the payment plan, but he did not do so. It was further started that the complainant, thus, being a defaulter, was not entitled to the relief,  sought for, as per the terms and conditions of the allotment letter, which was duly accepted by him, as the contract stood cancelled and the amount stood forfeited. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

4.               Opposite Party No.2, in its written version, while admitting the factual matrix of the booking of apartment and payment of Rs.6,50,000/-, at that time, stated that it forwarded the request of the complainant, to Opposite Party No.1, for refund of the amount. It was denied that Opposite Party No.2, befooled the complainant, in any manner. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

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

6.               After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.               Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

8.               Notice of the appeal, was duly served, upon respondents No.1 and 2, but neither, they, nor any legally authorized representative, on their behalf, put in appearance. Accordingly, respondents No.1 and 2, were proceeded against exparte.

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

10.            The Counsel for the appellant, submitted that, no doubt, the complainant booked the apartment, aforesaid, and deposited the booking amount of Rs.6,50,000/-, vide receipt Annexure C-2. He further submitted that the total sale consideration of the apartment was Rs.68,29,952/-. He further submitted that the amount, which was to be paid by the complainant, under other heads, was Rs.3,84,552/-, which also formed part of the sale consideration. He further submitted that the allotment letter dated 07.11.2006, Annexure A-1, in respect of the allotment of apartment No.204, Floor-02 HBTN Tower-08, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, containing the terms and conditions, was issued in favour of the complainant. He further submitted that allotment letter Annexure A-1, was duly signed by the complainant, and the authorized signatory of Opposite Party No.1. He further submitted that, alongwith the allotment letter, payment plan Annexure-A, and payment schedule, at page 76 of the District Forum, were also sent. He further submitted that after making the payment of Rs.6,50,000/-, which was the booking amount, the remaining installments, as per the payment schedule, at page 76 of the District Forum file, were not made by the complainant, though a number of letters were written to him, besides letters dated 26.03.2010 at page 86, dated 01.12.2010 at page 87, dated 24.12.2010 at page 88, dated 19.01.2011 at page 89, dated 11.04.2011 at page 90 and dated 27.04.2011 at page 91 of the District Forum file. He further submitted that since the complainant, failed to make payment of the remaining sale consideration, by way of installments, as per the payment schedule, according to clause 2.g, of the allotment letter, Annexure A-1, the allotment stood cancelled and earnest/registration money deposited by the complainant, stood forfeited. He further submitted that two emails, Annexure C-3 (doubly marked) at pages 45 and 46, do not relate to the instant case, and the District Forum was wrong, in placing reliance thereon. He further submitted that since the amount stood forfeited, in view of clause 2.g of the allotment letter Annexure A-1, there was no deficiency, in rendering service, on the part of the appellant/Opposite Party No.1, nor it indulged into unfair trade practice. He further submitted that the District Forum was wrong, in accepting the complaint. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

11.            After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded hereinafter. There is, no dispute, about the factum that the complainant, booked an apartment with Opposite Party No.1 (now appellant), through Opposite Party No.2, its agent and payment of Rs.6,50,000/-,  was made  on 14.06.2006 vide cheque, copy whereof is Annexure C-2. . Annexure A-1, allotment letter dated 07.11.2006, which was sent to the complainant, was duly signed by him, as well as the authorized signatory of Opposite Party No.1. According to this allotment letter, apartment number 204, Floor-02 comprising super area 194.7248 sq. mtrs (approximately 2096 sq ft) HBTN Tower-08, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, was allotted to the complainant.  The version of the complainant, to the effect that as per the promise made to him, at the time of booking, the size of the apartment was to be 1400 to 1900 sq feet, but the proposed allotment was for the apartment of the size of 2096 sq feet, resulting into increase in the price to the tune of Rs.6 lacs, is not supported by any cogent and convincing evidence. On the other hand, this version is completely belied by the allotment letter Annexure A1.  Since, this allotment letter was duly signed by the complainant, he accepted the terms and conditions thereof. The allotment letter constituted a By-Partite agreement, between the parties, as it was also signed by an authorized signatory of Opposite Party No.1. The parties were, therefore, bound by the terms and conditions thereof. Admittedly, no further amount, except Rs.6,50,000/-, deposited by the complainant, at the time of booking the apartment, vide Annexure C-2, was deposited by him, as per the schedule of payment, which was attached with the allotment letter, and is at page 76 of the District Forum file. A number of letters, referred to above, were written to the complainant, by Opposite Party No.1,  for making the payment of remaining installments, but to no avail. Clause 2.g of the allotment letter Annexure A-1,  reads as under:-

“Failure/Delay in Payment:

In the event Allottee(s) fails to pay any installment(s) with interest within 90 days from due date, the Developer shall have the right to cancel the allotment and forfeit the entire amount of Earnest/Registration Money deposited by the Allottee(s) and the Allottee(s) shall be left with no right or lien on the said Apartment and the Developer shall be free to sell the same. The amount paid, if any, over and above the Earnest/Registration money shall be refunded by the Developer without interest after adjustment of interest accrued on the delayed payment(s), if any, due from the Allottee(s)”.

12.            The perusal of the afore-extracted clause of the allotment letter, clearly goes to show that, on  failure of the complainant, to pay any installment(s), with interest, within 90 days, from the due date, the developer could cancel the allotment and forfeit the amount of registration, deposited by the allottee, and, thereafter, the allottee, was not to have any right or lien on the said apartment, and the developer was free to sell the same. It was this clause, which was invoked by Opposite Party No.1. Since the complainant, failed to pay any installment, except the booking amount, as per the schedule of payment, referred to above, his allotment stood cancelled, and the earnest/registration amount of Rs.6,50,000/-, stood forfeited. There was, therefore, no deficiency, on the part of Opposite Party No.1. The District Forum, was wrong, in coming to  the contrary conclusion. The findings of the District Forum that there was deficiency, in rendering service, on the part of Opposite Party No.1, by not refunding the amount of Rs.6,50,000/-, being illegal and perverse, are reversed.

13.             No doubt, reliance was placed by the complainant on Annexure C-3 (doubly marked), emails at pages 45 and 46 of the District Forum file. Annexure C-3 email, at page 45 of the District Forum file, was not sent to the complainant. It was from one Anurag Dwivedi, to some undisclosed recipient,  relating to some other residential apartment in Greater Noida MU Sector . Annexure C-3 email at page 46 was from Dr. Devinder Gupta to Unitech, for its coming up project at Greater Noida, MU Sector (in front of Unitech`s  Habitat).  Both these emails, did not relate to the complainant. No reliance thereon could be placed by the complainant, to contend that some other apartment was promised to be allotted to him, in some other scheme, but the allotment was made of some other apartment, in different scheme. Since, these emails were not addressed to the complainant, these have got no relevance, so far as the merits of the instant case are concerned. The District Forum was wrong, in placing reliance upon the same.

14.            No other point, was urged, by the Counsel for the appellant.

15.            The order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.

16.            For the reasons recorded above, the appeal, is accepted with costs, quantified at Rs.10,000/-. The impugned order is set aside.

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

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

Pronounced.

July 19, 2012

Sd/-

[JUSTICE SHAM SUNDER(Retd.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg