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

                                  Consumer Complaint No.711 of 2014

                                 Date of institution:            23.12.2014

                                                   Date of Decision:            29.09.2015

Manjit Singh son of Iqbal Singh resident of House No.402-D, Rishi Apartment, Sector 70, Mohali  (Punjab).

                                          ……..Complainant            Versus

1.     Unitech Limited through its Director Ramesh Chandra registered Office: 6 Community Centre, Saket, New Delhi 110017.

2.     Unitech Limited through its Managing Director Ajay Chandra, Real Estate Division (Marketing), Ground Floor, Signature Towers, South City-1,  National Highway-8, Gurgaon 122001 (Haryana).

3.     Unitech Limited, Unihomes, Sector 107, Mohali (Uniworld City) Sales Office: SCO 189-90-91, Sector 17-C, Chandigarh 160017.

4.     Alice Developers Private Limited, through its Director Sanjeev Hingorani Basement-6, Community Centre, Saket, New Delhi 110017.

                                                                ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Mrs. R.K. Aulakh, Member.

Present:     Shri Ajay Pal Singh, counsel for the complainant.

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

(Mrs. Madhu P. Singh, President)

ORDER

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

(a)    return him Rs.5,81,906/- alongwith interest @ 24% per annum from the date of receipt till realisation.

(b)    pay him compensation of Rs.2,00,000/- for mental agony and  harassment.

(c)    pay him compensation @ Rs.5/- per sq. ft. per month of saleable area of the floor as per sale agreement.

(d)    pay him Rs.15,000/- as litigation expenses.

                The case of the complainant is that he booked a residential dwelling unit with OPs on 25.03.2010 for a total consideration of Rs.31,81,627/-.  At the time of booking the complainant deposited Rs.2,76,000/- through cheque dated 28.02.2010 receipt dated 25.03.2010 thereof was issued by OP No.2.  Thereafter, flat No.0133 in Block-A (3 Bed Room) with 1077 sq.ft. in Sector 107, Uniworld City, Mohali was allotted to the complainant vide allotment letter dated 25.03.2010 issued by OP No.2.  A copy of the payment plan was also received by the complainant on 25.03.2010 from OP No.2.  As per the payment schedule the complainant made payment of Rs.3,05,906/- to the OPs.  Sale agreement was signed between the parties on 03.07.2010.  The possession of the unit was to be given within a period of 36 months from the date of signing of sale agreement. OP Nos.1 and 2 sent letter dated 08.09.2010 to the complainant mentioning therein reduction in External Development Charges by the concerned authorities.  The complainant visited the local sales office of the OPs to enquire about the development at the state and payment of further installment and the officials of the OPs assured him delivery of possession within 6 months. The complainant vide letter dated 21.08.2014 sought from the OPs information regarding development of the project. The OPs have not responded to the letter of the complainant and even during his visits to the local office of the OPs, he was not given satisfactory reply.  The complainant even sent legal notice dated 29.09.2014 but the OPs failed to respond to the same.  Thus with these allegations the complainants have filed the present complaint against the OPs.

2.             Upon notice the OPs appeared and filed joint written statement. In the preliminary objections of the written statement, they have pleaded that this Forum does not have the territorial jurisdiction to adjudicate upon the complaint as the Buyers Agreement dated 03.07.2010 was executed at New Delhi and the demand for payment has been raised from Gurgaon office. The complainant does not fall under the definition of ‘consumer’ as he was not the original allottee and bought the said flat from one Amandeep Singh. The payment of Rs.5,81,906/- was received by the OPs from said Amandeep Singh. The complainant is an investor who invested in the flat for resale purpose. Due to slump in the real estate, he could not resell it and he has frivolously sought legal remedy before this Forum.  The complainant had no where mentioned that the flat is required for his personal use and necessity.  The complaint is not maintainable under the provisions of Consumer Protection Act as no cause of action has arisen in favour of the complainant against the OPs.

                On merits, it is pleaded that unit No.0133 was allotted to Amandeep Singh and not to the complainant. The payment schedule dated 25.03.2010 was also sent to Amandeep Singh and not to the complainant and the payment of Rs.5,81,906/- was also received from Amandeep Singh. The buyer agreement dated 03.07.2010 was also executed between the OPs and Amandeep Singh.  The complainant never visited the local sales office of the OPs for any kind of enquiry.  As per Clause 4.a (i) of the agreement the possession was to be given within 36 months but the OPs could not handover the possession due to Global meltdown of economy. The OPs are facing extreme financial hardship due to recession in the reality market. These circumstances are beyond the control of the OPs.  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 for the period of delay in offering possession beyond period of 36 months.  But the said Clause 4.C comes with a rider i.e. the OPs shall be liable to pay these charges for the reasons beyond the reasonable control of the developer. Moreover, Clause 4.C specifically provides that the said charges, if payable, shall be adjusted at the time of final notice of possession.    Thus, denying any deficiency in service on their part, OPs have sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant tendered in evidence his affidavit Ex.CW-1/1 and copies of the documents Ex.C-2 to C-8.

4.             Evidence of the OPs consists of affidavit of Rohit Jindal their authorised representative Ex.OP-1/1.

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

6.             Admittedly the complainant is a subsequent allottee of the residential unit i.e. Flat No.0133 Block-A, 3 Bed room with 1077 sq. ft. in Sector 107, Uniworld City, Mohali vide allotment letter dated 13.07.2010 Ex.C-4 issued by OP No.2. As per the agreed total sale consideration of Rs.31,81,687/- the complainant made total payment of  Rs.5,81,906/- as on 13.07.2010 as is evident from Ex.C-4. The OPs were to deliver possession of the unit within a period of 36 months from the date of signing of the agreement which expires on 02.07.2013. The grievance of the complainant is that the OPs have failed to raise the construction and handover the flat within the agreed stipulated period through he was willing to make the balance payment. Vide Ex.C-7 dated 21.08.2014 the complainant had asked the OPs to give the status of construction and date of possession of the flat. The Ops in their response to Para No.9 of the complaint have denied having received said letter Ex.C-7 from the complainant. However, in their written reply para No.11 the OPs have admitted that they could not handover the possession of the flat due to the global recession in the real market.  However, they have absolute intention of completion of the construction work of the flat and handover the physical possession of the flat in question to the complainant at the earliest and, therefore, the Ops cannot be held responsible for deficiency in service or unfair trade practice. Further as per the Ops the complainant is seeking refund of the amount which is beyond the agreement dated 03.07.2010. As per Clause-11 of the buyers agreement if the purchaser fails to perform any of the stipulations contained in the buyers agreement, the developer shall have the right to terminate the agreement and forfeit the earnest money alongwith interest paid on delayed payment till then. Further as per Clause 2 (f) of the Buyers Agreement, the 20% and amount equivalent of the total sale consideration of the flat shall be deemed as earnest money. The complainant has failed to pay 20% of the sale consideration as he has deposited only Rs.5,81,906/- instead of Rs.6,36,325/- as earnest money being 20% of the total sale consideration. Therefore, the complainant is not entitled to any kind of refund from the OPs.

7.             The issue for consideration is whether the OPs have failed to handover the possession of the flat in question to the complainant within the agreed stipulated period as per buyers agreement, if so, whether that amounts to deficiency in service and unfair trade practice and whether the complainant is entitled to refund of the deposited amount alongwith interest and compensation.

8.             The buyers agreement dated 03.07.2010 Ex.C-5 duly executed between the parties is not disputed. The payment of amount of Rs.5,81,906/- by the complainant to the OPs, being part sale consideration is not disputed. The buyers agreement Clause 4 a (i) relates to delivery of possession wherein the OPs have proposed to offer the possession within 36 months of signing of the agreement subject to force majeure. Admittedly, the Ops have failed to abide by the said agreed timeline of 36 months as is evident from their own admission in reply to para 11 of the complaint. The reasons for delay in possession as put forth by the Ops are global recession in real estate market whereas no such reason has been agreed by the parties while signing the buyers agreement. Therefore, it is evident that OPs have failed to adhere to the time frame and not handing over the possession within the time frame, is an act of deficiency in service and unfair trade practice on the part of the OPs.

9.             Once the complainant has proved the act of deficiency in service and unfair trade practice on the part of the OPs as they have failed to adhere to the time frame of handing over the possession, in that eventuality the complainant has not defaulted in making payments of the remaining amount as per payment plan. As per payment plan Ann. A-1 attached with the buyers agreement, against the total sale consideration and other charges the complainant was to make the payment as per construction linked plan. There is no notice on record from the OPs raising the demand of payment as per construction linked plan which clearly goes to show that the OPs have not raised the construction during the currency of agreement and not even shown the status of the construction to the complainant. Since the OPs have failed to raise the construction of the flat and raise further demand from the complainant, the complainant in no manner has defaulted in making the payments, as alleged by the OPs that the earnest money is deficient by some amount and that warrants for forfeiture as per Clause 2 (f) of the buyers agreement. Therefore, for no fault of complainant the OPs have no right to retain the deposited amount and the complainant is entitled to refund of the deposited amount alongwith interest.  Thus it is amply clear from the records and pleadings that the OPs have failed to handover the possession of the flat in question within stipulated period amounting to deficiency in service and unfair trade practice and, therefore, the complainant is entitled to refund of the deposited amount alongwith interest and compensated for mental agony and harassment which he has suffered due to the acts of omission and commission of the OPs.  The complaint, therefore, deserves to be allowed and the complainant deserves to be compensated.

10.            As per the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401 wherein by relying upon the judgment of Hon’ble National Commission in case titled as Sunit Enterprises & Anr. Vs. Mohanlal N. Jogi and Anr. 2013(1) CLT 309 has held that if the money is refunded within 5 years then interest @ 12 to 15% per annum should be sufficient and if after that then the interest @ 18% per annum has to be awarded. In the present complaint admittedly the amount in question is lying with the OPs since December, 2010 and till date it has not been refunded by the OPs. Therefore, applying the ratio of the order of the Hon’ble State Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others (supra) the complainant is entitled to refund of the amount with interest @ 18% per annum.

11.            In view of above discussion, the complaint is allowed. The OPs jointly and severally are liable as under:

(a)    to refund to the complainant his deposited amount of Rs.5,81,906/- (Rs. Five lacs eighty one thousand nine hundred six only) with interest thereon @ 18% per annum from 13.07.2010 till actual payment.

(b)    to pay to the complainant 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.                           

September 29, 2015.                                          (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Mrs. R.K. Aulakh)

     Member