Chandigarh

StateCommission

A/167/2015

Unitech Limited - Complainant(s)

Versus

Sumit Singla - Opp.Party(s)

Vertika H Singh, Adv.

16 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

First Appeal No.	:	167 of 2015
Date of Institution	:	15.07.2015
Date of Decision	:	16.07.2015

 

Unitech Limited, Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh-160017 through its Managing Director.

……Appellant/Opposite Party No.1

V e r s u s

1. Sumit Singla S/o Sh. Ramesh Singla;
2. Smt. Meha Singla W/o Sh. Sumit Singla;

Both residents of House No.633, Sector 40-A, Chandigarh.

              ....Respondents/Complainants

 

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

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Ms. Vertika H. Singh, Advocate for the appellant.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated

09.06.2015, 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, filed by the complainants (now respondents) and directed the Opposite Parties (now one of which is the appellant/Opposite Party No.1), as under:-

“i) In the light of above observations, the present complaint succeeds against the Opposite Parties. The same is allowed. We direct the Opposite Parties, jointly and severally, to:-        

1. To refund Rs.12,51,298/- to the Complainants, along with interest @12% per annum from the respective dates of deposit, till realization.
2. To pay Rs.50,000/- as compensation for mental agony & harassment suffered by the complainants;
3. To pay Rs.10,000/- as costs of litigation.

This order shall be complied with by the Opposite Parties within one month from the date of receipt of its certified copy; thereafter, the Opposite Parties shall pay the amount at Sr. No.(ii) above with interest @ 12% per annum from the date of filing of the complaint till realization, besides complying with directions at Sr. No.(i) and (iii) above..”

2.       The facts, in brief, are that the complainants booked a residential apartment, in the project of the Opposite Parties, launched by them, under the name and style of Gardens (Sector 97) Uniworld City, Mohali. It was stated that the complainants were allotted apartment No.303, Block C-2, Floor-3, measuring 1485 square feet, in Mega Township ‘Uniworld City’ Sector 97, Mohali, Punjab, vide allotment letter dated 19.10.2011, Annexure C-2. The total sale consideration of the said unit was Rs.43,63,695/-. The complainants opted for construction linked plan.  It was further stated that Apartment Allotment/Buyer Agreement, in respect of the said apartment was executed between the parties on 25.11.2011. It was further stated that the complainants, in all, deposited the amount of Rs.12,51,298/-, towards part price of the said apartment.  It was further stated that, according to  Article 4.a. of the Buyer's Agreement dated 25.11.2011, Annexure C-3, possession of the unit, in question, was to  be delivered within 36 months, from the date of execution of the same (Buyer's Agreement), subject to force majeure conditions. It was further stated that  the period of 36 months had expired on 24.11.2014, yet, even construction had not been started by the Opposite Party, what to speak of offer of possession of the said unit.
3.       It was further stated that the complainants approached the Opposite Parties, through  every possible means, to refund the amount, paid by them, alongwith interest, but to no avail. It was further stated that legal notice dated 08.11.2014 Annexure C-6 was also served upon the Opposite Parties, in the matter, 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 complainants, 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, directing the Opposite Parties, to refund the amount of Rs.12,51,298/-, alongwith interest @18% P.A., from the respective dates of deposits, till realization; pay compensation, to the tune of Rs.2 lacs, for mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.22,000/-.
4.       Despite deemed service, none put in appearance, on behalf of the Opposite Parties, as a result whereof, they were proceeded against exparte, vide order dated 07.05.2015.
5.       The complainants led evidence, in support of their case.
6.       After hearing the Counsel for the complainants, 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.       We have heard the Counsel for the appellant, at the preliminary stage, and have gone through the record of the case, carefully.
9.       The Counsel for the appellant/Opposite Party No.1, submitted that the absence of the Authorized Representative, on behalf of the Opposite Parties, on 07.05.2015, in the District Forum, when the case was fixed for their service, was on account of the reason that their the Legal Manager Mr.Ajay Pal Singh, who was looking after the entire litigation, pertaining to the tricity i.e. Chandigarh, Panchkula and Mohali, resigned on 31.03.2015. She further submitted that, thereafter the new Legal Manager Mr.Rohit Jindal, who joined in place of Mr.Ajay Pal Singh, also resigned on 14.04.2015, as a result whereof, the notices received by the Chandigarh Office of the Opposite Parties did not come to the knowledge of their Head Office at Gurgaon.  She further submitted that it was  on account of the reasons, referred to above, that none appeared, on behalf of the Opposite Parties, on 07.05.2015, in the District Forum, when the case was fixed for their service. She further submitted that, as such, the Opposite Parties remained deprived of the opportunity to file vakalatnama, written reply and evidence, and thus, were condemned unheard. She further submitted that the order of the District Forum, thus, being illegal, is liable to be set aside, and the case deserves to be remanded back, to the District Forum, for fresh decision of the same, after giving opportunity to the appellant, to file vakalatnama, written reply and lead evidence.
10.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant/Opposite Party No.1, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. It may be stated here, that at the time of arguments, and also in the grounds of appeal, it was clearly admitted by the appellant, that notices sent for the service of the Opposite Parties, for 07.05.2015, in the consumer complaint, were duly received, but their Authorized Representative, could not put in appearance, on account of the reason, that their Legal Manager Mr.Ajay Pal Singh, who was looking after the entire litigation, pertaining to the tricity  i.e. Chandigarh, Panchkula and Mohali, resigned on 31.03.2015, and, thereafter the new Legal Manager Mr.Rohit Jindal, who joined in his place also resigned on 14.04.2015. It may be stated here, that once the notices were received for 07.05.2015, by the Opposite Parties, it was the duty of their Authorized Representative, to put in appearance, before the District Forum, on the said date, and pray for a date, for engaging the Counsel and filing written reply and evidence. It was also the duty of the Authorized Representative, to be very vigilant and diligent, in the matter, knowing the consequences, which could flow, on account of non-appearance, in the District Forum, on 07.05.2015. The mere fact that the aforesaid Legal Managers of the Opposite Parties allegedly resigned and no other Legal Manager had been appointed, by the time, the notices were received, did not mean that no other Officer/Official, could put in appearance, in the District Forum, on 07.05.2015. Under these circumstances, it could not be said that the absence of the Opposite Parties, in the District Forum, on 07.05.2015, for which date, the notices through registered post were sent for their service and they were duly served, was not intentional and deliberate. Since the absence of the Opposite Parties, on the date fixed, was intentional and deliberate, they were rightly proceeded against exparte, by the District Forum. No ground, therefore, is made out, for setting aside the order impugned, on this ground.
11.       It may be stated here, that the respondents/complainants were allotted apartment No.303, Block C-2, 3rd Floor, in the aforesaid complex, by the Opposite Parties, vide allotment letter dated 19.10.2011 Annexure C-2. The Buyer's Agreement dated 25.11.2011, Annexure C-3, was executed between the parties, and possession of the unit, in question, was to be delivered within 36 months, from the date of execution of the same. The total cost of the apartment, in question, was Rs.43,63,695/-. The payment plan is Annexure-B, attached with the Buyer's Agreement dated 25.11.2011, Annexure C-3,  at page 43 of the District Forum file. The complainants opted for the construction linked plan. They deposited the amount of Rs.3,84,912/- at the time of registration. They further deposited Rs.4,18,324/-, within 75 days of allotment. They also deposited a sum of Rs.4,18,325/-, within 150 days of allotment. Thereafter, the remaining amount was to be paid, as per the stage of construction.  The complainants, in their complaint, in clear-cut terms, stated that after expiry of the stipulated period, there were no signs of development and construction of apartments, in the project of the Opposite Parties. This fact was duly supported by the complainants, by way of filing the affidavit of complainant No.1. No intimation was ever given to the complainants, by the Opposite Parties, as to at what stage the construction of apartments had reached, so as to enable them to pay the remaining amount. Even, in the grounds of appeal, it was not stated by the appellant, that the construction of apartments had commenced and reached at a particular stage. Thus, the complainants could not be said to be defaulters in making payment, as per the construction linked schedule. No reply to the legal notice sent by the complainants to the Opposite Parties was given.  Even at the time of arguments, the Counsel for the appellant, did not advance any contention, that by the stipulated date of delivery of possession, as mentioned in the Agreement, or even by the time, the complaint was filed, construction of the apartments had commenced and reached at a particular stage. Under these circumstances, the District Forum was right, in holding that since the construction had not even commenced, as was proved from the evidence, on record, the complainants were not liable to deposit further amount, as per the construction linked plan Annexure-B, attached with the Buyer's Agreement dated 25.11.2011, Annexure C-3. The District Forum was also right, in holding that by fleecing the complainants of their hard earned money, by making tall claims that possession shall be delivered by the stipulated date and not abiding by the same, the Opposite Parties were not only deficient in rendering service, but also indulged into unfair trade practice.
12.       The next question, that falls for consideration, is, as to whether, the complainants were entitled to the refund of amount deposited by them, alongwith interest. Since the amount of Rs.12,51,298/- had been deposited by the complainants, towards part price of the apartment, in question, and the Opposite Parties did not commence construction, in the project, as also did not carry out any development at the site, by the stipulated   date,   as per Buyer's Agreement Annexure C-3, the question of offer of delivery of possession of the same, in favour of the complainants, did not at all arise. Under these circumstances, the Opposite Parties could not usurp the hard earned money, deposited by the complainants. In fact, there was no default, on the part of the complainants.  Had the construction of apartments commenced and the complainants been informed of the alleged stage of construction, and payment been not made by them, it would have been said that they defaulted, and, as such, there was breach of the terms and conditions of the contract. In the absence of commencement of construction, the complainants were not required to deposit further amount, as per the schedule of payment. The complainants were, thus, caused financial loss.  The hard earned money of the complainants was utilized by the Opposite Parties, for a sufficient longer period. Had this amount been deposited by the complainants, in some bank, or had they invested the same, in some business, they would have earned handsome returns thereon. By not refunding the amount, with interest, referred to above, the Opposite Parties were deficient, in rendering service. Under these circumstances, the complainants were rightly held to be entitled to the refund of amount deposited by them with interest @12% P.A., by the District Forum.
13.           The next question, that falls for consideration, is, as to whether, the compensation awarded by the District Forum could be said to be reasonable and adequate or not. The District Forum awarded compensation, to the tune of Rs.50,000/-, on account of mental agony, and physical harassment, to the complainants. While deciding the factum of award of compensation, various factors are required to be taken into consideration.  One can well imagine the plight of the complainants, who deposited the amount of Rs.12,51,298/- and waited for the offer of possession of the apartment to them, by the stipulated date or even by the time, the complaint was filed,  but to no avail. The complainants had purchased the said apartment to have a roof over their head, but their hopes were dashed to the ground, when the construction had not even commenced. The complainants, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties, for which they were rightly granted compensation, to the tune of Rs.50,000/-. The compensation awarded cannot be said to be excessive, in any manner, but, on the other hand, it is reasonable, fair and adequate.
14.       No other point, was urged, by the Counsel for the appellant.
15.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
16.       For the reasons recorded above, the appeal being devoid of merit, is dismissed, at the preliminary stage, with no order as to costs.
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.

16.07.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg