Chandigarh

StateCommission

CC/32/2016

Gulshan Kumar Chhabra - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Nirmal Singh Jagdeva, Adv.

19 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	32 of 2016
Date of Institution	:	28.01.2016
Date of Decision	:	19.07.2016

 

Gulshan Kumar Chhabra S/o Sh. Radhe Shyam Chhabra, resident of H.No. 287, Sector 21-C, Behind Malhotra Clinic, Aery Mill Road, Mandi Gobindgarh, District Fatehgarh Sahib, Punjab.

…… Complainant

V e r s u s

 

1. Unitech Limited through its Chairman/Managing Director, SCO No.189-191, Sector 17-C, Chandigarh.
2. Alice Developer Pvt. Ltd., through its Chairman/Managing Director, having its registered office at Basement-6, Community Center, Saket, New Delhi – 110017.

              ....Opposite Parties

 

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-     Sh.N.S.Jagdeva, Advocate for the  complainant.

Ms.Vertika H.Singh, Advocate for Opposite Party No.1.

Sh.Durga Dutt Sharma, Advocate for Opposite Party No.2.

 

PER PADMA PANDEY, MEMBER.

              The facts, in brief, are that the complainant had purchased a flat in resale on 16.03.2012 for the personal use of his family. It was stated that Unitech Limited launched its project, in the year 2011, in the name of “UNIWORLD” located in Sector 97, Mohali. Initially, the flat was booked by one Sh. Gautam Uppal and he was allotted a flat No.404 on 4^th floor, Block A, tower A-3 measuring super area of 1485 sq. ft., vide allotment letter (Annexure C-1). Mr.Gautam Uppal (original allottee) had made the following payments to the Company:-

 

Sr. No.	Date	Annexure	Payment	Receipt No.
1.	01.12.2010	C-3	Rs.4,00,000/-	000063
2.	07.03.2011	C-4	Rs.3,79,000/-	000175
3.	03.08.2011	C-5	Rs.4,05,844/-	000437
4.	10.10.2011	C-6	Rs.4,69,527/-	Cheque dated 10.10.2011
5.	19.02.2012		Rs.9400/-	872
		Total Payments	Rs.16,63,771/-

 

It was further stated the previous allottee made the total payment of Rs.16,63,771/- upto 10.10.2011 but the payment of Rs.16,38,447/- shown in the account statement of the Company upto 05.03.2012 (Annexure C-7). It was further stated that  due to malafide intention of the Opposite Parties, no Buyer Agreement was supplied to Mr.Gautam Uppal, the previous allottee because the time would start running from the date of Agreement. Mr. Gautam Uppal was not interested to continue with the flat, as such, he decided to resell the same and the Company had received NOC from him, which is Annexure C-7A. The Opposite Parties also received transfer fee of Rs.40,000/- and Rs.41,900/- from Mr. Gautam Uppal (Annexure C-21 and C-22).

2.         It was further stated that the complainant also availed loan of Rs.19 lacs from DHFL, Chandigarh, as is evident from statement of account (Annexure C-8). The Opposite Party Company duly transferred the flat in the name of the complainant and a letter to this effect was issued on 16.03.2012 (Annexure C-9). It was further stated that the Opposite Parties who got signed the Buyer Agreement on 01.12.2010, intentionally kept the same with them upto 2 years and on 16.03.2012 supplied the same to the complainant for the first time, after making an endorsement on it. Copy of the Buyer’s Agreement dated 09.03.2012 alongwith covering letter is Annexure C-11. Thereafter, the complainant made the following balance payment of installments to the Company :-

Sr. No.	Date	Annexure	Payment	Receipt No.
	Previous payments		Rs.16,63,371/-
1.	28.05.2012	C-12	Rs.1,60,000/-	001073
2.	28.05.2012	C-13	Rs.2,97,728/-	001072
3.	14.08.2012	C-14	Rs.2,81,717/-	000437
4.	14.08.2012	C-15	Rs.1,60,000/-	001300
5.	29.10.2012	C-16	Rs.4,90,277/-	001587
6.	11.12.2012	C-17	Rs.7151/-	001814
7.	11.12.2012	C-18	Rs.1,80,000/-	001815
8.	27.12.2012		Rs.4,00,000/-	Chq. No.033894
9.	27.12.2012		Rs.90,277/-	Chq. No.002003
10.	13.05.2013		Rs.1,87,151/-	Chq. No.003616
		Total Payments	Rs.39,18,072/-

 

Thereafter, no further demand of installments was raised by the Opposite Parties. It was further stated that as per clause article 4 of the terms of the Agreement, the Opposite Parties had agreed to hand over possession of fully constructed flat to the complainant within a period of 36 months from the date of Agreement, failing which, the Company shall be liable to pay to the allottee a compensation of Rs.5/- per sq. feet per month of the super area for such period of delay beyond the period of 36 months. The period of 36 months would start from 01.12.2010 when the Opposite Parties started receiving the payment from the complainant or the previous allottee. The complainant visited the project site of the Opposite Parties in November, 2014 to enquire about the status of possession ; he was shocked to see that no progress in construction was made and it was stopped. Ultimately, the complainant served a legal notice dated 09.12.2015 (Annexure C-23) to the Opposite Parties but the same was not replied. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

3.         Opposite Party No.1, in its written version, stated that this Commission has got no territorial jurisdiction to try this complaint because the Buyer’s Agreement was executed between the parties at New Delhi, payment was made at Gurgaon office of Opposite Party No.1 and also the receipt was issued by the Gurgaon office of Opposite Party No.1. It was further stated that the complainant did not fall within the definition of “Consumer” as envisaged under the Consumer Protection Act, 1986 because the complainant is simply an investor, who invested in the said flat for resale purposes but he could not resell the said property, due to slump in the real estate market. It was further stated that the consumer complaint is not maintainable, and only a Civil Court, could adjudicate the dispute, in question.  Apart from above objection, Opposite Party No.1 has specifically taken an objection as regards existence of Arbitration clause in the Agreement and for referring the matter to the Arbitrator by moving a separate application under Section 8 of Arbitration and Conciliation Act, 1996.

            However, on merits, it was stated that the liability to construct the said flat and develop the area was of Opposite Party No.2 because Opposite Party No.2 was the developer and the replying Opposite Party had a limited role in the said project. It was further stated that the Buyer Agreement was executed between the replying Opposite Party, complainant and Opposite Party No.2, wherein, it was clearly mentioned that Alice Developer Pvt. Ltd. is the developer and Unitech Limited is the confirming party. It was further stated that vide Development Agreement dated 01.12.2008, Unitech Limited has assigned to the developer (Alice Developer Pvt. Ltd.) the development rights with respect to  33.2438 acres of land and it was further mentioned that the developer should construct and complete multistory group housing complex to be known as ‘Gardens’. It was further stated that Opposite Party No.2 was authorized to use the Unitech Trade Mark and Unitech Corporate Logo for various purposes such as promotional, marketing, advertisements, brochures, hoardings etc. Copy of the Trademark Licence  Agreement dated 09.05.2009 is Annexure OP-1/2. It was further stated that vide Clause 1 (a) of the Buyer Agreement, the developer i.e. Opposite Party No.2 agreed to sell the apartment to the allottee and vide Clause 4(a), the liability to hand over possession within the tentative time frame of 36 months of the signing of Agreement was of Opposite Party No.2, which is a separate body corporate duly registered under the Companies Act, 1956.   It was denied that due to malafide intention of the Opposite Parties no Buyer Agreement was supplied to Mr. Gautam Uppal, the previous allottee. It was further stated that a copy of the Agreement was sent to the earlier allottee but he himself delayed the signing of the Agreement and the complainant cannot raise any grievance on behalf of the earlier allottee. It was further stated that the complainant cannot raise any kind of grievance regarding the Agreement, since he stepped into the shoes of the earlier allottee only on 16.03.2012 and he (complainant) signed the Agreement after going through its contents thoroughly and being fully aware of the terms and conditions of the Agreement. It was further stated that Opposite Party No.2 was liable to construct and complete the construction work within the tentative time frame of 36 months from the signing of the Agreement. The replying Opposite Party had only a limited role and was not liable for the construction work of the flat. It was denied that the complainant made the payment of Rs.39,18,072/-. It was further stated that the complainant made the payment of Rs.38,92,934/- only, as is evident from Annexure C-19. It was further stated that the previous payment transferred to the account of the complainant was not Rs.16,63,371/- but only the amount of Rs.16,38,447/-. It was further stated that all the payments were received by Opposite Party No.1 on behalf of Opposite Party No.2.  It was further averred that Gurgaon office of the replying Opposite Party had received an amount of Rs.16,38,447/- from the earlier allottee, which was transferred in the name of the complainant, as is clearly mentioned in the transfer of allotment letter dated 16.03.2012 (Annexure C-9). It was further stated that Buyer Agreement dated 09.03.2012 was endorsed in favour of the complainant and he cannot raise absurd grievances against the replying Opposite Party once he had signed the Agreement with open eyes on 16.03.2012 and that too pertaining to the earlier allottee. It was further stated that the administrative charges of Rs.40,000/- and Rs.41,900/- were received from Mr.Gautam Uppal (earlier allottee) and no amount was received from the complainant. It was further stated that the replying Opposite Party has no role whatsoever in the construction work and handing over of possession of the said unit.  It was denied regarding the receipt of any legal notice from the complainant.  It was further stated that the amount collected from the complainant has been deposited by the replying Opposite Party in the account of Opposite Party No.2 and, as such, Opposite Party No.1 cannot be made liable to refund the amount deposited by the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor it indulged into unfair trade practice.

4.         In its written reply, Opposite Party No.2 has taken the similar preliminary objections, as taken by Opposite Party No.1 in its written statement, regarding territorial jurisdiction that complainant did not fall within the definition of “Consumer” and consumer complaint is not maintainable, and only a Civil Court, could adjudicate the dispute, in question. Apart from above objection, Opposite Party No.2 has specifically taken an objection as regards existence of Arbitration clause in the Agreement and for referring the matter to the Arbitrator by moving a separate application under Section 8 of Arbitration and Conciliation Act, 1996. It was stated that in case of seeking refund of the amount by the complainant, the forfeiture clause, as per the Agreement, would be applicable. It was further stated that the complainant was well aware that the said Agreement was dated 09.03.2012 and possession of the said unit would be handed over tentatively by 09.03.2015, as such, he cannot raise any kind of grievance regarding terms and conditions of the Agreement. Hence, the period of 36 months commenced only from 09.03.2012 and not from 01.12.2010. It was further stated that the time period of 36 months as per Clause 4(a) of the Agreement dated 09.03.2012 was a tentative time period, which was subject to force majeure circumstances. It was further stated that the replying Opposite Party could not hand over possession of the unit to the  complainant, by the stipulated date, as there was global meltdown of the economy worldwide/recession, resulting into cash crunch throughout and also due to some objection raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, due to which, electricity could not be made available at the site,  resulting in delay of the rest of the development work. It was further stated that development work at the site, is being carried out in full swing and the replying Opposite Party is making sincere efforts to hand over possession of the said unit, to the complainant. It was further stated that Opposite Party No.1  on behalf of Opposite Party No.2 vide letter dated 03.02.2016 had applied to GMADA for issuance of partial completion certificate (Annexure OP-2/3). It was further stated that there was delay of approximately 12 months in handing over of possession, for which, the complainant should be duly compensated as per the terms and conditions of the Agreement. It was denied regarding receipt of any legal notice from the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it indulged into unfair trade practice.

5.         The complainant, filed separate rejoinders to the written statements of Opposite Party No.1 and Opposite Party No.2, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written versions of Opposite Party No.1 and Opposite Party No.2. 

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

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

8.         Admittedly, the complainant purchased the flat from Sh.Gautam Uppal and the same was endorsed in favour of the complainant vide endorsement dated 16.03.2012 (at page No.58 of the file). It is also the admitted fact that Opposite Party No.1 issued transfer of allotment of flat No.A3-04-0404 measuring 1485 sq. ft. in Gardens (Sector 97), Uniworld City, Mohali to the complainant vide letter dated 16.03.2012 (Annexure C-9). 

9.         The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for Opposite Party No.1 and Opposite Party No.2, stand rejected.

10.        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. Opposite Party No.1 and Opposite Party No.2 stated in their written statement that Agreement was executed between the parties at New Delhi, payments were received by the Gurgaon office of Opposite Party No.1 and also receipts were issued by the Gurgaon office of Opposite Party No.1, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint.

            According to Section 17 of the Act, a consumer complaint could be filed by the complainant(s), 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,  cheque bearing No.095613 dated 10.10.2011 in the sum of Rs.4,69,527/- (Annexure C-6) and cheque bearing No.095628 dated 28.02.2012 in the sum of Rs.9400/- (Annexure C-6/A), in respect of the unit, in question, was received by Regional Office of Opposite Party No.1, at Chandigarh i.e. “Unitech Limited, Regional Office, SCO 189-191, Sector 17-C, Chandigarh-160017”. Not only this, even the letter regarding No Objection Certificate for selling flat was written by Mr.Gautam Uppal (previous allottee) to Opposite Party No.1, was received by the Regional Office of Unitech Limited at Chandigarh. Moreover, Customer Ledger (Annexure C-19) was issued by the Chandigarh office of Opposite Party No.1 i.e. ‘Unitech Limited, SCO 189-90-91, Sector 17-C, Chandigarh.’ It is further evident, that the letters written by Opposite Party No.1 to PSPCL (Annexure OP-2/2 colly.) were also addressed from its office at Chandigarh. 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 Opposite Party No.1 and Opposite Party No.2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

11.        To defeat claim of the  complainant, another objection was raised by Counsel for Opposite Party No.1 and Opposite Party No.2, that the complainant is an investor, as he has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. The Counsel for Opposite Party No.1 and Opposite Party No.2 further stated that the complainant has nowhere mentioned that the said flat is required for his personal necessity. After going through the documents and record of the case, we do not find any merit in the contention of Counsel for Opposite Party No.1 and Opposite Party No.2 because the complainant has specifically mentioned in para No.2 of his complaint that he purchased the flat for his own personal use of his family and he had not purchased the flat for resale/commercial purpose. So, it is clearly proved that the complainant purchased the said unit for his residential purpose.

            It may be stated here that there is nothing, on the record to show, that the complainant is the property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Counsel for Opposite Party No.1 and Opposite Party No.2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for Opposite Party No.1 and Opposite Party No.2, therefore, being devoid of merit, is rejected.

12.        Another objection was raised by Counsel for Opposite Party No.1 and Opposite Party No.2 that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the Apartment Allotment Agreement dated 09.03.2012 (Annexure C-11), the Opposite Parties were liable to offer possession of the unit, within a period of 36 months, from the date of signing of the same (Agreement) i.e. latest by 09.03.2015, alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. 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”

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 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he fall within the definition of consumer. In this view of the matter, the objection of taken by Counsel for Opposite Party No.1 and Opposite Party No.2, in this regard, being devoid of merit, must fail, and the same stands rejected.

13.        With regard to the objection raised by Opposite Party No.1 in its written statement that liability to construct the said unit and develop the area was of Opposite Party No.2 because Opposite Party No.2 was the developer, as such, it (Opposite Party No.1) had a limited role in the said project. It was further stated that as per Clause 1(a) of the Buyer Agreement, the developer i.e. Opposite Party No.2 agreed to sell the apartment to the allottee and vide Clause 4(a), the liability to hand over possession with the tentative time frame of 36 months of the signing of the Buyer Agreement was of Opposite Party No.2, which is a separate body corporate duly registered under the Companies Act, 1956. After going through the record of the case, we are not satisfied with the objection raised by Opposite Party No.1 in its written statement. A bare perusal of Annexure OP-2/2 clearly reveals that various communications relating to electrical connection were communicated between Unitech Limited, GMADA as well as PSPCL.  Not only this, even Unitech Limited i.e. Opposite Party No.1  had applied for issuance of Partial Completion Certificate (Annexure OP-2/3) to the Chief Administrator, GMADA, Mohali. It is pertinent to note that allotment letter dated 01.12.2010 (Annexure C-1), Payment Schedule  (Annexure C-2), receipts of payments (Annexure C-3 to C-6/A , C-12 to C-18 & C-21 to C-22), Customer Ledger (Annexure C-7 & C-19), transfer of allotment of flat dated 16.03.2012 (Annexure C-9) , payment schedule (Annexure C-10) and letter (Annexure C-11) were issued by Unitech Limited (Opposite Party No.1). Not only this, Apartment Allotment Agreement dated 09.03.2012 was executed between Alice Developers Private Limited (Opposite Party No.2), Unitech Limited (Opposite Party No.1) and Sh. Gautam Uppal (previous allottee) which was thereafter endorsed in favour of the complainant on 16.03.2012, as is evident from page No.58 of the file. After going through all the documents, it is clearly proved that from the advertisement to the stage of receipt of consideration amount from the complainant was done by Opposite Party No.1; relevant permission to develop the project from Govt. Authorities i.e. GMADA was obtained by Opposite Party No.1. Opposite Party No.1 in its written statement stated that vide Development Agreement dated 01.12.2008, Unitech Limited has assigned to the developer (Alice Developer Pvt. Ltd.) the development rights with respect to  33.2438 acres of land and it was further mentioned that the developer should construct and complete multistory group housing complex to be known as ‘Gardens’. However, no Development Agreement dated 01.12.2008 has been placed on record by Opposite Party No.1, to prove the same. At the time of arguments, Counsel for Opposite Party No.1 stated that no doubt, the amount in respect of the unit, in question, was received by Opposite Party No.1 from the complainant but the same was put in a separate account and, thereafter, the said amount was forwarded to Opposite Party No.2. It may be stated here that no proof has been placed on record by Opposite Party No.1 that the amount received by it was put in a separate account and forwarded to Opposite Party No.2.  It is pertinent to note that even in Article 4.a (iii), it has been mentioned as under :-

 “That it is further agreed by the Apartment Allottee(s) that after completion of the Apartment and receipt of full consideration and other charges, if any, payable by the Apartment Allottee(s), a Sale Deed between Developer, Unitech, and the Apartment Allottee(s) shall be executed in favour of the Apartment Allottee(s) as per the standard format. X x x x x x x”

So, it is clearly proved that Opposite Party No.2 is hand in glove with Opposite Party No.1. From above, it is clear that there is no fault on the part of the complainant, because being an innocent buyer, he had paid the huge amount to Unitech Limited and he is not aware about the mutual understanding between Opposite Party No.1 and Opposite Party No.2. So, we are of the view that both the Opposite Parties are equally responsible for the lapse and deficiency of not handing over possession to the complainant.

14.        The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant. It is, no doubt, true that the complainant purchased the flat from Mr.Gautam Uppal and flat bearing No.A3-04-0404 measuring 1485 sq. ft. in Gardens (Sector 97), Uniworld City, Mohali was transferred in the name of the complainant vide transfer letter dated 16.03.2012 (Annexure C-9). So, the complainant stepped into the shoes of the earlier allottee on 16.03.2012. A bare perusal of the Apartment Allotment Agreement clearly reveals that the same was executed between Mr.Gautam Uppal (earlier allotee), Alice Developers Private Limited (Opposite Party No.2) and Unitech Limited (Opposite Party No.1) on 09.03.2012 and the same was endorsed in favour of the complainant on 16.03.2012, as is evident from page No.58 of the file. Now the plea taken by the complainant that date of possession starts from 01.12.2010 instead of the date of the Agreement i.e. 09.03.2012, has no value, at all. On the date of signing the Agreement, the complainant knew that the Agreement had been executed on 09.03.2012 and possession of the said flat would be delivered tentatively by 36 months from the date of signing of the Agreement. Hence, the period of 36 months commenced only from 09.03.2012 and not from 01.12.2010. According to Article 4.a.(i) of the Apartment Allotment Agreement dated 09.03.2012 (Annexure C-11), the Opposite Parties, were to hand over possession of the unit, in question, to the  complainant, within a period of 36 months, from the signing of the same (Agreement) i.e. latest by 09.03.2015. Admittedly, possession of the unit, was not delivered to the complainant, by the stipulated time frame, as mentioned in the Agreement i.e. by 09.03.2015 or even till date. Even, in its written version, Opposite Party No.2 frankly admitted that the Company could not hand over possession of the unit due to recession in the market/global meltdown, and also on account of non-provision of electricity in the said project, by the Punjab State Power Corporation Limited (PSPCL). Even partial completion certificate has not been obtained by the Company, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the unit. Admission made by Opposite Party No.2, itself makes it clear that it had not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, it was not provided with electricity, for the project in question. Secondly, when the Opposite Parties, had already received huge amount from the allottee(s), then it does not lie in its mouth, that it faced extreme financial hardship, due to recession in the market, as far as the project, in question, is concerned. In the first instance, the Opposite Parties were required to develop the project, by arranging funds out of its own sources, and, thereafter, the units were to be sold to the allottees, on future payment basis. Had this not been the case of the Opposite Parties, only in those circumstances, the plea with regard to facing extreme financial hardship would have been considered to be correct, by this Commission.

            Even otherwise, the said difficulty/ground i.e. recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction of unit(s). A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping, suspending or delaying the construction of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. There is no allegation of any lock-out or strike by the labour, at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the Company or the contractors engaged by it, at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of the project, within the time stipulated in the Agreement(s). A similar question fell for determination before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in  Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

“Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the  complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, I has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”.

15.        The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. The Opposite Parties, therefore, cannot take shelter under Clause 8.b. of the Agreement, for extension of period, for delivery of possession of the unit. By making a misleading statement, that  possession of unit, in question, would be delivered within a period of 36 months, from the date of signing of the Agreement (Annexure C-11) i.e. by 09.03.2015, but on the other hand, by not abiding by the commitments made, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
16.        An objection was also taken by Counsel for Opposite Party No.1 and Opposite Party No.2, at the time of arguments, that time was not the essence of contract. It may be stated here that, it was clearly mentioned in Clause 2.d. of the Agreement aforesaid, that time is essence of the contract. It was stated under the said Clause that “It shall be incumbent on the Apartment Allottee(s) to comply with the terms of payment and/or other terms and conditions of sale as stipulated in the Agreement”. Terms and conditions of the Agreement are binding upon both the parties, and no one can wriggle out of the same. It is pertinent to mention here that as per Clause 4.a. of the Agreement, it was clearly mentioned that, subject to the Apartment Allottee(s) complying with various terms and conditions of the Agreement and other requirements as indicated by the developer, the possession of the apartment was to be offered to the complainant, within a period of 36 months, from the date of signing of the Agreement i.e. latest by 09.03.2015 but till date, the Opposite Parties failed to deliver physical possession of the unit, in question, to the complainant, despite repeated requests. The time was, thus, unequivocally made the essence of contract. The objection taken by the Counsel for Opposite Party No.1 and Opposite Party No.2, in this regard, thus, being devoid of merit, must fail, and the same stands rejected.
17.       The next question, that falls for consideration, is, as to what amount was deposited by the complainant, in respect of the unit, in question. As per the complainant, he paid the total amount of Rs.39,99,972/- in respect of the unit, in question, whereas, according to Opposite Party No.1 and Opposite Party No.2, the complainant paid an amount of Rs.38,92,934/- only. It is evident from the receipts annexed by the complainant, with his complaint, that the previous allottee deposited an amount of Rs.4,00,000/- vide receipt dated 01.12.2010 (Annexure C-3), Rs.4,05,844/- vide receipt dated 03.08.2011 (Annexure C-4), Rs.3,79,000/- vide receipt dated 07.03.2011 (Annexure C-5), Rs.4,69,527/- vide cheque dated 10.10.2011 (Annexure C-6), Rs.9400/- vide cheque dated 28.02.2012 (Annexure C-6/A), the total of which comes to Rs.16,63,771/-. It is evident from transfer letter dated 16.03.2012 (Annexure C-9) that at the time of transfer of the flat, Opposite Party No.1 credited the amount of Rs.16,38,447/- instead of Rs.16,63,771/- in favour of the complainant. It is further evident from the receipts that the complainant deposited an amount of Rs.1,60,000/- vide receipt (Annexure C-12), Rs.2,97,728/- vide receipt dated 28.05.2012 (Annexure C-13), Rs.2,81,717/- vide receipt dated 14.08.2012 (Annexure C-14), Rs.1,60,000/- vide receipt dated 14.08.2012 (Annexure C-15), Rs.4,90,277/- vide receipt dated 29.10.2012 (Annexure C-16), Rs.7151/- vide receipt dated 11.12.2012 (Annexure C-17), Rs.1,80,000/- vide receipt dated 11.12.2012 (Annexure C-18). It is also evident from Customer Ledger  (Annexure C-19) that the complainant paid an amount of Rs.4,00,000/- vide cheque dated 27.12.2012, Rs.90,277/- vide cheque dated 27.12.2012 and Rs.1,87,151/- vide cheque dated 13.09.2013. The complainant has also annexed receipts, which shows that the previous allottee i.e. Sh.Gautam Uppal also paid an amount of  Rs.41,900/- and Rs.40,000/-, both dated 16.03.2012 to Opposite Party No.1. Therefore, after calculation of the all the amounts, aforesaid, it is clearly proved that the complainant made the payment of Rs.39,99,972/- in respect of the unit, in question.  
18.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.39,99,972/-, deposited by him. It is an admitted fact that the Opposite Parties are unable to deliver  possession of the unit, in question, on account of pending development works, want of basic amenities, and non-provision of electricity, as admitted by them, and firm date of delivery of possession of the unit, could not be given to him (complainant). The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the Opposite Parties failed to prove, by placing on record, any cogent and convincing material, that it encountered any force majeure circumstances, as a result whereof, possession of the unit, in question, was delayed. On the other hand, stand taken by Opposite Party No.2, in this regard, has been negated by this Commission, while giving detailed findings. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The  complainant is, thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

           As far as the plea taken by Opposite Party No.2 regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the Opposite Parties, that they were ready with possession to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of non-performance of the Opposite Parties i.e. failure to hand over possession by the stipulated time and is seeking refund of the amount deposited. Had this been for other reasons, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, he is entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Party No.2, in this regard, has no legs to stand and is accordingly rejected.    

19.        It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is clearly proved from the aforesaid paragraph No.16 that an amount of Rs.39,99,972/-, was paid by the  complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded quarterly @18% p.a.) as per Article 2.c. of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.39,99,972/-alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the Company, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.

20.         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 caused to him. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant(s). 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 them (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(s). 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 suffered a lot of mental agony and harassment, at the hands of the Opposite Parties, for a number of years, as they neither delivered physical possession of unit nor refunded the amount to the complainant. The complainant purchased the unit, with the hope to have a roof over his head, by raising construction thereon, but his hopes were dashed to the ground. Till date, physical possession of the unit, has not yet been given, to the complainant, by the Opposite Parties. The complainant, thus, underwent a lot of mental agony and harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation to the tune of Rs.3,00,000/- if granted, shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.3,00,000/-.

21.        No other point, was urged, by Counsel for the parties, in both the cases.  

22.        For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Party No.1 and Opposite Party No.2 are jointly and severally directed as under:-

1. To refund the amount of Rs.39,99,972/-, to  the  complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of             Rs.3.00 lacs(Three Lacs), for causing mental agony and physical harassment, to the complainant.

 

3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.

 

4. DHFL shall have the first charge, on the amount to be refunded, to the complainant, by the Opposite Parties, to the extent, the amount is due to it, against the complainant as he had advanced loan in his favour for part payment of the price of unit, in question, as per statement of account (Annexure C-8).

 

5. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

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

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

Pronounced.

19.07.2016

Sd/-

(DEV RAJ)

PRESIDING MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rb.