Chandigarh

StateCommission

CC/134/2015

Bhupender Singh - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma, Adv.

18 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	134 of 2015
Date of Institution	:	14.07.2015
Date of Decision	:	18.08.2015

 

Bhupinder Singh son of Sh. Harbhajan Singh, resident of House No.2987, Second Floor, Phase-7, Mohali.

……Complainant

V e r s u s

1. Unitech Limited through its Branch Head/Manager having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh.
2. Unitech Limited, through its Managing Director, having registered Office at 6, Community Centre, Saket, New Delhi-110017.

            ....Opposite Parties

Complaintunder Section 17of the Consumer Protection Act, 1986.

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh. Sanjeev Sharma, Advocate for the complainant.

                        Ms.Vertika H. Singh, Advocate for the Opposite Parties.

               

JUSTICE SHAM SUNDER (RETD.), PRESIDENT.   

           

            The facts, in brief, are that allured by the advertisements made by the Opposite Parties, in respect of their project, launched under the name and style “Gardens”, Sector 97, Uniworld City, Mohali, Punjab, the complainant decided to purchase a flat in the same. It was stated that flat No.A1-04-0403, measuring 1485 square feet, which was selected by the complainant, had already been booked by Sh.Harnesh Pal Singh. The total sale consideration of the said flat was to the tune of Rs.39,22,650/-. It was further stated that, however, the Opposite Parties intimated the complainant that since Sh.Harnesh Pal Singh, did not have the requisite funds to pay the balance sale consideration of the said flat, as such, he was ready to sell the same. It was further stated that, as such, the said flat was purchased by the complainant, from Sh.Harnesh Pal Singh.

2.       The part amount of sale consideration of Rs.18,09,729/- paid by Sh.Harnesh Pal Singh, to the Opposite Parties, was repaid by the complainant to him (Sh.Harnesh Pal Singh). It was further stated that apart from this, the complainant paid an amount of Rs.83,427/- to the Opposite Parties, towards transfer fees, in respect of flat No.A1-04-040. As such, transfer of allotment, in respect of flat No.A1-04-040, in favour of the complainant was acknowledged by the Opposite Parties, vide letter dated 23.07.2012 Annexure C-2.
3.       It was further stated that though Sh.Harnesh Pal Singh had booked flat No.A1-04-040, with the Opposite Parties, in December 2010, yet, they did not execute the Buyer  Agreement, for a long time, just with a view to evade their liability of payment of delayed penalty/compensation. It was further stated that a lot of correspondence took place between the parties, in this regard, but of no use.
4.       It was further stated that, finally, the Buyer  Agreement, in respect of flat No.A1-04-040, was executed between the parties on 08.06.2012 i.e. after a delay of about more than one and a half years, from the allotment thereof. It was further stated that, as per Article 4.a) of the Buyer  Agreement dated  08.06.2012, Annexure C-3, it was depicted that the Opposite Parties were to deliver possession of the flat, in question, to the  complainant within a period of 36 months, from the date of execution of same (Agreement).
5.       It was further stated that, in the meanwhile, the  complainant kept on asking the Opposite Parties, about the requisite permissions/approvals, layout plans etc. etc., and also with regard to the provision of basic amenities, in respect of the project, in question, but they did not give any satisfactory reply.
6.       It was further stated that, on the other hand, the Opposite Parties kept on demanding payment of instalments, in respect of the flat, in question. As such, the complainant kept on making payment of instalments. It was further stated that possession of flat No.A1-04-040, was not delivered to the complainant, by the stipulated date. It was further stated that by December 2014, the complainant had already made the payment of Rs.40,07,948/- (infact Rs.40,03,497/-), towards flat No.A1-04-040 against Rs.39,22,650/-.
7.       It was further stated that the complainant visited the site, where the flat, in question, was allotted to him, in the manner, referred to above, but was surprised to see that no construction activity was going on there. The  complainant approached the Opposite Parties, and requested them to apprise regarding the date of delivery of possession of the said flat, as he had already paid the substantial amount of Rs.40,03,497/-, but they failed to give any satisfactory reply. It was further stated that, thereafter, the complainant kept on visiting the Office of the Opposite Parties, with a request to apprise him, regarding the status of the project, and also delivery of possession of the said flat, in his favour, but to no avail.
8.       It was further stated that despite making payment of an amount of Rs.40,03,497/- in respect of part price of the said flat, till date neither the possession thereof, had been offered by the Opposite Parties, to the complainant, nor refund of the same (amount) had been made.
9.       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, seeking directions to the Opposite Parties to refund the amount of Rs.40,07,948/- (infact Rs.40,03,497/-), alongwith interest @18% per annum from the respective dates of deposits, till realization; pay Rs.3,00,000/-, as compensation for deficiency, in rendering service, adoption of unfair trade practice, mental agony and physical harassment; and Rs.55,000/- as cost of litigation. 
10.       The Opposite Parties, put in appearance on 30.07.2015 and filed their written reply and evidence, on 12.08.2015. In their joint written version, the Opposite Parties pleaded that the  complainant did not fall within the definition of a “consumer” as defined under Section 2(1)(d) of the Act, as he had purchased the flat, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. It was further pleaded that this Commission had no territorial Jurisdiction to entertain and decide the complaint. It was further pleaded that the consumer complaint was not maintainable, and only a suit for specific performance, in the Civil Court, for the enforcement of the Agreement, could be instituted. It was admitted that the flat, in question, was subsequently transferred in favour of the complainant, from the name of first allottee i.e. Sh.Harnesh Pal Singh. It was stated that, no doubt, Buyer Agreement dated 11.01.2011 was sent to Sh.Harnesh Pal Singh, yet he never returned the same, after signatures, nor he made the payments towards the said flat, as a result whereof,  a number of reminders were sent to him. It was further stated that when Mr.Harnesh Pal Singh, did not do the needful, the allotment in respect of the flat, in question, was cancelled. It was further stated that as per Article 4 Clause (4.a.) of the Buyer's Agreement dated  08.06.2012 Annexure C-3, the Opposite Parties were to hand over possession of the flat, in question, to the  complainant, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 07.06.2015, subject to force majeure conditions. It was denied that any verbal assurance with regard to delivery of possession of the said flat, before 07.06.2015, was ever given to the complainant, by the Opposite Parties. It was further stated that the Opposite Parties, could not hand over possession of the flat, to the complainant, by the stipulated date, as there was global meltdown of the economy worldwide, wherein the foreign investors, as anticipated by them (Opposite Parties), had refrained from any kind of investment, in India, and large portions of buildings were vacant throughout India, as also there was a cash crunch throughout. It was further stated that super structure of the said flat was complete and further completion work was going on and possession thereof, would be delivered shortly. It was further stated that the Opposite Parties were making endeavour to hand over possession of the said flat, to the complainant. It was further stated that all the necessary approvals/sanctions had already been obtained by the Opposite Parties, from the Competent Authorities. It was further stated that due to some objection raised by the Punjab State Power Corporation Limited (PSPCL), electricity could not be made available at the site, by the Opposite Parties, due to which, rest of the development work and the basic amenities had been delayed. It was further stated that it was well within the knowledge of the complainant that for any delays, stipulated penalty had been provided in the Buyer's Agreement dated 08.06.2012, Annexure C-3, which safeguarded his rights. It was further stated that the Opposite Parties, were ready to pay penalty/ compensation, to the complainant, for the period of delay. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11.       The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.
12.       The Opposite Parties, in support of their case, submitted the affidavit of Sh.Lalit Gupta, their Authorized Representative, by way of evidence, alongwith which, a number of documents were attached. 
13.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
14.       The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. It may be stated here, that the mere objection of the Opposite Parties, that the  complainant being speculator, purchased the flat, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight, and is liable to be rejected. It was clearly averred by the complainant, in paragraph no.2 of the complaint, supported by his affidavit, by way of evidence, that he was looking for a flat, as he was living in a rented accommodation, as a result whereof, he intended to purchase the same, from the Opposite Parties. Even otherwise, the mere fact that it was a residential flat, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by him. There is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property. No evidence was also produced, by the Opposite Parties, to prove that the  complainant owned a number of other residential properties, in the tricity, and, as such, the flat, in question, was purchased by him, by way of investment, with a view to resell the same, as and when there was escalation in the prices thereof. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential flat, in question, with a view to reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.
15.         The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, the Consumer Complaint could be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident, that out of the amount of Rs.40,03,497/- towards the part price, including delayed payment interest, in respect of the said flat, partial payment was made to the Opposite Parties, at Chandigarh, vide various cheques (Annexure C-7 colly.), as these documents bear the stamp, in photo-impression of Unitech Limited, Regional Office, SCO 189-191, Sector 17C, Chandigarh-160017. Since, as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection, taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 
16.       The next question, that falls for consideration, is, as to whether, since the complainant sought enforcement of the Buyer's  Agreement dated  08.06.2012 Annexure C-3, in respect of flat No.A1-04-040, i.e. immoveable property, only a suit, in the Civil Court was maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the flat, in question, and he was allotted the same, in the manner, referred to above, for consideration. According to Article 4.a.) of the Buyer's  Agreement dated  08.06.2012 Annexure C-3, the Opposite Parties were to hand over possession of flat No.A1-04-040, to the  complainant within a period of 36 months, from the date of execution of the same (Agreement) i.e. by 07.06.2015. It was not that the  complainant purchased the unit, in an open auction, on “as is where is basis”.  Section 2 (1) (o) of the Act, defines service as under:-

 “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

17.       From the afore-extracted Section 2(1) (o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant had a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, could be availed of by him, as he falls within the definition of a consumer. In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
18.        The next question, that falls for consideration, is, as to within which period, possession of the flat, in question, was to be delivered to the complainant. According to Article 4.a.) of the Buyer's  Agreement dated  08.06.2012 Annexure C-3, the Opposite Parties were to hand over possession of the flat, in question, to the complainant, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 07.06.2015. Admittedly, possession of the flat, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. Even, in the written version, the Opposite Parties frankly admitted in paragraph No.6 of the preliminary objections and paragraphs 4, 5, 8, 9 and 13 on merits, that possession of the flat, in question, could not be offered to the complainant, on account of non-development at the site, non-provision of basic amenities, as also non-approval of electricity load/ connection by the PSPCL. More than 90% of the sale consideration of the flat, in question, had already been paid, by the time of filing the complaint, but possession of the same (flat), was not delivered, in favour of the complainant. Now, even as on today, on account of pending development works, non-approval of electricity load/connection at the site by the PSPCL, as admitted by the Opposite Parties, firm date of handing over possession of the flat, in question, could not be given to the complainant. By making a misleading statement, that  possession of the flat, in question, was to be delivered within a period of 36 months, from the date of execution of the same (Agreement),  and by not abiding by the commitments, made by the Opposite Parties, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice.
19.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.40,03,497/- deposited by him. Since, the Opposite Parties are unable to deliver  possession of the flat, in question, on account of the reasons aforesaid, as admitted by them, (Opposite Parties) so the complainant is entitled to the refund of amount, deposited by him, towards the price of the same (flat, in question). By not refunding the amount, the Opposite Parties were deficient, in rendering service.  
20.        The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. Admittedly, the amount of Rs.40,03,497/- towards part price of the flat, in question, was deposited by the complainant. The complainant was deprived of his hard earned money, on the basis of misleading information, given by the Opposite Parties, that he would be handed over the legal physical possession of the residential flat, by 07.06.2015, but they failed to do so. As stated above, it has been frankly admitted by the Opposite Parties, in their written version that possession of the flat, in question, could not be offered, to the complainant. The complainant was, thus, caused financial loss.  The hard earned money of the complainant was utilized by the Opposite Parties, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he  would have earned handsome returns thereon. In case of delay, in deposit of installment(s), the Opposite Parties were charging interest @18% P.A. (compounded quarterly), as is evident from Article 2.c. of the Buyer's  Agreement dated 08.06.2012 Annexure C-3. Under these circumstances, in  our  considered opinion, if  interest @12% P.A., from the respective dates of deposits, is granted, that will serve the ends of justice.
21.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14 (1) (d) of the Act, on account  of mental agony and physical harassment and injury caused to him, as also escalation in prices, by not delivering physical possession of the flat, to him or by not refunding  the amount deposited. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant. The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainant,  underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, to the tune of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, and escalation in prices, if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs. 1,50,000/-, as indicated above.
22.       It was, however, submitted by the Counsel for the Opposite Parties, that since the parties are governed by the terms and conditions of the Buyer's  Agreement dated  08.06.2012 Annexure C-3, in case of delay, in delivery of physical possession of the flat, they (Opposite Parties), were only liable to make payment of penalty, in the sum of Rs.5/- (Rupees Five only) per sq.feet per month, of the super area, for such period of delay, as per Article 4.c.ii) of the Buyer's Agreement dated  08.06.2012 Annexure C-3. He further submitted that the Opposite Parties were ready to pay this amount, for the period of delay, in delivery of possession of the flat. It may be stated here, that such a submission of the Counsel for the Opposite Parties, would have been considered to be correct, had the complainant, prayed for delivery of physical possession of flat No.A1-04-040. In the instant case, prayer for the refund of amount, referred to above, was made by the complainant, in the complaint, in the circumstances, referred to above. This Article could be invoked, by the Opposite Parties only, in the event, the complainant, in the complaint, had sought the relief of delivery of physical possession of the flat. As stated above, the hard earned money of the complainant was used by the Opposite Parties, for investment, for a long time. He was not refunded the amount, to which he was entitled to. If the Opposite Parties are allowed to invoke Article 4.c.ii) of the Buyer's  Agreement dated 08.06.2012 Annexure C-3, in the instant case, that would amount to enriching them, at the cost of the complainant. Under these circumstances, shelter cannot be taken by the Opposite Parties, under Article 4.c.ii) of the Buyer's  Agreement dated  08.06.2012 Annexure C-3. Had the  complainant prayed for possession  of the flat, in question, in the complaint, the matter would have been different. The complainant, in our considered opinion, as stated above, is entitled to the refund of amount of Rs.40,03,497/-   referred to above, alongwith interest @12 % P.A., from the respective dates of deposits.     
23.       No other point, was urged, by the Counsel for the parties.
24.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed as under:-

1. To refund the amount of  Rs.40,03,497/- to  the complainant, alongwith interest @ 12% per annum, from the respective  dates of deposits onwards,  within 2 months, from  the    date of receipt of a certified copy of  this order.
2. To pay compensation, in the sum of Rs.1,50,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices, within 2 months, from the date of receipt of a certified copy of this order.
3. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
4. In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Parties shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the respective dates of deposits, till realization, and interest @ 12% P.A., on the  amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of litigation costs, to the tune of Rs.20,000/-.

25.       Certified Copies of this order be sent to the parties, free of charge.
26.       The file be consigned to Record Room, after completion.

Pronounced.

18.08.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.