Chandigarh

StateCommission

CC/103/2015

Dhiraj Gupta - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

B.K.Gupta, Adv.

29 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	103 of 2015
Date of Institution	:	28.05.2015
Date of Decision	:	29.05.2015

 

 

1. Dhiraj Gupta s/o Sh. B. K. Gupta;
2. Punita Gupta wife of Dhiraj Gupta, resident of 260, Block-K, Spangle Candos, Dhakoli, Zirakpur – 140603.

……Complainants.

Versus

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

              ....Opposite Party.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

               

BEFORE:   SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

 

Sh.  B. K. Gupta, Advocate for the complainants.

 

PER DEV RAJ, MEMBER

            The facts in brief are that complainant No.1 alongwith his wife Punita Gupta purchased a flat in Uniworld City, Sector 97, Mohali and paid Rs.3,77,763/- as booking amount on 5.2.2011 vide receipt (Annexure C-1). It was stated that flat No.504 on 5th Floor, Block-A, Tower A-III in the said project was allotted to them (complainants) vide allotment letter dated 12.2.2011 (Annexure C-2). It was further stated that Sale Agreement was executed between the parties on 8.3.2011 (Annexure C-3)  and the total price of the flat was fixed as Rs.40,48,875/- inclusive of basic price besides external development charges, infrastructure development charges, car parking, club charges and service tax. It was further stated that the payments were to be made linked with construction plan, which formed part of the Sale Agreement as Annexure ‘B’. It was further stated that the complainants, while strictly adhering to the payment schedule, deposited Rs.38,58,247/- with the Opposite Party vide receipts (Annexure C-4) issued from February 2011 to 26.09.2013 (Annexure C-4 colly.).

2.         It was further stated that the construction at the site was stopped by the Opposite Party in the middle of 2013, despite the fact that more than 90% of the sale consideration had already been paid by the complainants. It was further stated that as per the Sale Agreement (Annexure C-3), possession of the flat, in question, was to be delivered to the complainants within 36 months as per Article 4A of the said Agreement i.e. by 8.3.2014 but the Opposite Party failed to deliver possession by the due date. It was further stated that due to non delivery of possession of the flat, in question, the complainants suffered pre-EMI interest to the extent of Rs.25,000/- per month on the loan procured from HDFC Bank. It was further stated that as per the Agreement, the Opposite Party was liable to pay compensation @Rs.5/- per sq. ft. of the super area to the complainants, in case, there was delay in delivery of possession beyond the stipulated period. It was further stated that the Opposite Party had no concern and care for the persons like the complainants and they had gained undue enrichment by collecting huge sums from the buyers without any attendant benefit to them. It was further stated that clauses 2.d and 4.a of the Sale Agreement were germane to the issues involved and were incorporated by the Opposite Party to its advantage and prejudicial to the interest of the buyers like the complainants.

3.         It was further stated that startling consequences flow from the aforesaid clauses namely time is the essence of the contract for the Opposite Party and not the complainants; secondly, in the event of default of any payment by the complainants, they were to pay interest @18% compounded quarterly and thirdly, possession was to be delivered within 36 months subject to force majeure circumstances. It was further stated that besides the unilateral clauses, the Opposite Party was also guilty of cheating and criminal breach of trust, for which, the complainants have the right to initiate appropriate proceedings in this regard. It was further stated that the Opposite Party had enjoyed and earned out of the deposits of the complainants besides appreciation in land for which, the Opposite Party was presently charging @Rs.3,295/- per sq. feet. It was further stated that the approach and design of the Opposite Party was deceptive in nature just in order to collect maximum money from the purchasers of the flats like the complainants by just raising structures up to the maximum floors without adhering to the other works as contained in the construction linked plan. It was further stated that the complainants served a legal notice dated 9.4.2015 (Annexure C-5) upon the Opposite Party but to no avail.

4.            It was further stated that the, aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party to refund the amount of Rs.38,58,247/- alongwith interest @18% per annum compounded quarterly; award compensation for mental agony and physical harassment as exemplary damages under Section 34 of the Code of Civil Procedure; pay Rs.8,91,049/- account of pre-EMI interest, which is still continuing and appropriate cost.

5.         The complainants, in support of their case, submitted the affidavit of Sh. Dhiraj Gupta, complainant No.1, by way of evidence, alongwith which, a number of documents were attached.

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

7.         The principal question, which falls for consideration, is, as to whether, this Commission has the territorial jurisdiction to entertain and decide the complaint or not. Section 17(2) of the Act, being relevant, is extracted hereunder:-

(2) A complaint shall be instituted in a State Commission within the 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 State Commission 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.         Clearly, the Sale Agreement/Apartment Allotment Agreement dated 8.03.2011 (Annexure C-3) was executed between the parties at New Delhi. This Agreement was duly signed by the complainants and the authorized representative of the Opposite Party. The allotment letter dated 12.02.2011 (Annexure C-2), whereby Flat No.A3-05-0504 (3 Bedroom) was allotted to the complainants in ‘Gardens’, Sector 97, Uniworld City, Mohali, was issued from the Gurgaon office of the Opposite Party. Even the property/flat, in question, allotted to the complainants, was also situated at Mohali, Punjab. The Payment Plan, opted by the complainants, annexed with the Agreement, as Annexure B, was construction linked, as per which, the complainants were initially required to deposit Rs.3,68,280/- at the time of registration of the flat, in question, which they deposited on 12.02.20011 vide receipt (Annexure C-1) including service tax. This receipt was issued by the Opposite Party from Gurgaon and sent to the complainants through registered post. Similar are the receipts dated 30.04.2011, 13.07.2011, 08.10.2011, 26.05.2012, 14.08.2012, 2712.2012, 29.10.2012 and 27.09.2013 (Annexure C-4 colly.), vide which, the complainants paid the remaining installments to the Opposite Party, in accordance with the payment plan opted by them. All these receipts were issued by Gurgaon office of the Opposite Party and received by the complainants through registered post, as all these receipts bear the stamp that the same were sent through registered post. None of these receipts was issued from the Chandigarh office of the Opposite Party. No doubt, payment of Rs.1,84,140/- was made vide cheque bearing No.903273 dated 8.12.2012, at page 37 of the file, favouring Unitech Uniworld City Mohali Gardens. Though this cheque was received by the Chandigarh Branch of the Opposite Party yet the same was payable at Andhra Bank, Gurgaon. In Sonic Surgical Vs. National Insurance Company Limited, Civil Appeal No.1560 of 2004, decided on 20.10.2009, the Hon’ble Supreme Court of India, held, interalia, as under:-

“…..In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or anywhere in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity….. In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

9.         In the instant case also, the complainant failed to produce, on record, any cogent or convincing documentary evidence, wherefrom it could be ascertained that a part of cause of action had arisen at Chandigarh. It seems that the complainants issued legal notice dated 09.04.2015 (Annexure C-5) to the Opposite Party at Chandigarh, in order to bring the dispute within the territorial jurisdiction of this Commission. In view of the law settled by the Hon’ble Supreme Court of India in Sonic Surgical Vs. National Insurance Company Limited’s case, (supra) and in our considered opinion, this Commission has no territorial jurisdiction to entertain and decide the instant complaint. The same, thus, deserves to be returned to the complainant, for filing the same, before an appropriate Commission, having territorial jurisdiction to entertain and decide the same.

10.         For the reasons recorded above, the complaint, in original, is ordered to be returned to the complainants, alongwith the documents against valid receipt, after retaining the attested to be true photocopies of the same, for presentation, before the appropriate Commission, having territorial Jurisdiction, to entertain and decide the same.

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

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

Pronounced

May  29, 2015.

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

 

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