Chandigarh

StateCommission

CC/85/2016

Kulwant Kaur - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Rupinder Singh Jhand, adv.

09 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	85 of 2016
Date of Institution	:	04.03.2016
Date of Decision	:	09.06.2016

 

Kulwant Kaur daughter of Sh.Mohinder Singh at present resident of House No.2020 (GF), Sector 37-C, Chandigarh.

…… Complainant

V e r s u s

 

1. Unitech Limited, Regd. Office 6, Community Center, Saket, New Delhi, through its Managing Director.
2. Unitech Limited (Uniworld City Mohali), Marketing office at SCO 189-90-91, Sector 17, Chandigarh, through its Authorized Officer.
3. Alice Developer’s Pvt. Ltd., registered office at Basement 6, Community Centre, Saket, New Delhi, through its Managing Director.

              ....Opposite Parties

Argued by:-     Sh.Rupinder Singh Jhand, Advocate for the    complainant.

Ms.Vertika H.Singh, Advocate for the Opposite Parties No.1 and 2.

Sh.D.D.Sharma, Advocate, proxy for Ms. Nidhi Ayer, Advocate for Opposite Party No.3.

======================================================

 

Complaint case No.	:	86 of 2016
Date of Institution	:	04.03.2016
Date of Decision	:	09.06.2016

 

Bharti Khanna daughter of Sh. Madan Lal Khanna, resident of House No.2220-A, Sector 42-C, Chandigarh.

…… Complainant

V e r s u s

 

1. Unitech Limited, Regd. Office 6, Community Center, Saket, New Delhi 110017, through its Managing Director.
2. Unitech Limited (Uniworld City Mohali), Marketing office at SCO 189-90-91, Sector 17, Chandigarh, through its Authorized Officer.
3. Alice Developer’s Pvt. Ltd., registered office at Basement 6, Community Centre, Saket, New Delhi, through its Managing Director.

              ....Opposite Parties

 

Argued by:-     Sh.Rupinder Singh Jhand, Advocate for the    complainant.

Ms.Vertika H.Singh, Advocate for the Opposite Parties No.1 and 2.

Sh.D.D.Sharma, Advocate, proxy for Ms. Nidhi Ayer, Advocate for Opposite Party No.3.

======================================================    

Complaint case No.	:	90 of 2016
Date of Institution	:	09.03.2016
Date of Decision	:	09.06.2016

 

Tejinder Singh son of Paramjeet Singh, Aged 38 years, resident of House No. 3094, B.J. Enclave, Sector 50-D, Chandigarh.

…… Complainant

V e r s u s

 

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

              ....Opposite Parties

 

Argued by:-     Sh.Amit Sharma, Advocate for the  complainant.

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

Sh.D.D.Sharma, Advocate, proxy for Ms. Nidhi Ayer, Advocate for Opposite Party No.2.

 

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

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

PER PADMA PANDEY, MEMBER.

              By this order, we propose to dispose of, following cases:-

	CC/85/2016	Kulwant Kaur	Vs.	Unitech Limited & Ors.
	CC/86/2016	Bharti Khanna	Vs.	Unitech Limited & Ors.
	CC/90/2016	Tejinder Singh	Vs.	Unitech Limited & Anr.

 

2.       Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same.
3.       At the time of arguments, on 01.06.2016, it was agreed between Counsel for the parties, that facts involved in all the complaints, by and large, are the same, and therefore, these three complaints can be disposed of, by passing a consolidated order.
4.       Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 85 of 2016, titled as “Kulwant Kaur Vs. Unitech Limited & Ors.” The facts, in brief, are that Unitech Limited launched its project in the name of Uniworld City in Mohali for providing built-up flats, floors and plots, after developing the area alongwith all the basic amenities and other facilities, as per brochure Annexure C-1. Therefore, the complainant came to know about the aforesaid project and believing on their claims, she booked one residential flat bearing No. 0101, Block : A, Tower : A2, 1st floor measuring 1050 sq. ft. alongwith car parking, EDC, lifts, greenery etc. in Unitech Mohali (Gardens), situated in Uniworld City, Sector 97, Mohali, for a total consideration of Rs.28,69,500/- excluding service tax and club membership. Thereafter, allotment letter in respect of the unit, in question, was issued to the complainant on 01.12.2010 and Agreement was also executed between the parties on 08.02.2011, copies of which are Annexures C-2 and C-3 respectively.  It was stated that the officials of the Company assured at the time of booking of the unit for providing roads, streetlights, electricity, sewerage connectivity and other facilities within a few months before the completion of the building. It was promised that a secure and ultra modern environment would be provided with the availability of basic needs like hospital, schools, market etc. with the project itself. It was further stated that all the facilities were promised to be provided by the Company within 3 years from the date of Agreement. The complainant opted for Construction Linked Payment Plan and paid the booking amount of Rs.2,93,660/-. It was further stated that the complainant paid the total amount of Rs.27,82,774/- to the Opposite Parties vide statement of account (Annexure C-4). As per the Agreement, the Opposite Parties were to deliver possession of the unit, in question, to the  complainant, within a period of 36 months, from the date of execution of the same (Agreement) i.e. from 08.02.2011 but till the date of filing of the complaint, the Opposite Parties failed to offer possession of the unit, in question, to the complainant, even after lapse of about more than 2 years from promised date. It was averred that when the complainant tried to know about the status of the project, the Opposite Parties made excuses on one pretext or the other. Thereafter, the complainant visited the office of the Opposite Parties several times to know the status of the construction, but to no avail. It was further stated that the construction/development of the project is totally stopped, without any reason and no satisfactory reply was given by the Company regarding status of possession. It was further stated that the complainant was working as Lab Technician and she was staying in Govt. accommodation.  After her retirement on 31.05.2013, she was forced to pay penal rent because the Opposite Parties failed to deliver possession of the unit, in question, to her. Due to non delivery of possession of the unit to the complainant, she is living in a rented accommodation by paying Rs.10,000/- per month as rent. When nothing happened, the complainant sent legal notice dated 08.02.2016 (Annexure C-8) to the Opposite Parties but they did not bother to reply the same.  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.
5.       Opposite Parties No.1 and 2, in their joint 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. 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 she 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.  It was further stated that the liability to construct the said flat and develop the area was of Opposite Party No.3 because Opposite Party No.3 was the developer and the replying Opposite Parties had a limited role in the said project. It was further stated that the Buyer Agreement was executed between the replying Opposite Parties, complainant and Opposite Party No.3, 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.3 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.3 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.3, which is a separate body corporate duly registered under the Companies Act, 1956. It was further stated that the liability to develop the project and complete the construction work was of Opposite Party No.3 and it was also agreed between the parties vide Clause 4(c)(ii) that the developer should be liable to pay compensation @Rs.5/- per sq. ft. per month of the super area of apartment for the period of delay in offering the possession of the said unit beyond the period of 36 months and except for reason beyond the reasonable control of the developer and, as such, the replying Opposite Parties are never liable for any kind of construction or development of said unit, in question.   It was further stated that the receipts (Annexure C-6) nowhere mentioned that the complainant had paid any kind of penal rent to the Government for her overstay in the Govt. accommodation. It was further stated that no document was placed on record by the complainant, whereby, she could claim that she is residing in a rented accommodation. It was denied regarding the 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 Parties, nor it indulged into unfair trade practice.
6.       In its written reply, Opposite Party No.3 has taken the similar preliminary objections, as taken by Opposite Parties No.1 and 2 in their written statement, regarding territorial jurisdiction, 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. It was stated that this Commission has got no pecuniary jurisdiction to try the complaint. 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 admitted that possession of the unit was to be offered within a period of 36 months of signing of the Agreement. It was further stated that time was not the essence of contract, as the period mentioned in the Agreement(s), for delivery of possession of the unit, was only tentative. 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/recession of the economy worldwide, 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 and provision of the basic amenities. It was further 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 Parties No.1 and 2 on behalf of Opposite Party No.3 vide letter dated 03.02.2016 had applied to GMADA for issuance of partial completion certificate (Annexure OP-3/3). It was further stated that the charges for delayed possession should be adjusted at the time of issuing of final notice of possession by the developer. 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.
7.       The complainant, filed separate rejoinders to the written statements of Opposite Parties No.1 & 2 and Opposite Party No.3, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written versions of Opposite Parties No.1 & 2 and Opposite Party No.3. 
8.       The Parties led evidence, in support of their case.
9.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
10.       Admittedly, the complainant was allotted flat bearing No.A2-01-0101 (2 bedroom) in Gardens (Sector 97), Uniworld City, Mohali vide allotment letter (Annexure C-2). It is also the admitted fact that Apartment Allotment Agreement was also executed between the parties, at New Delhi, on 08.02.2011 (Annexure C-3). It is also the admitted fact that the complainant paid the total amount of Rs.27,82,774/- to the Company vide customer ledger (Annexure C-4).
11.       The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3 stated that Agreement was executed between the parties at New Delhi and payments were received by the Gurgaon office of Opposite Parties No.1 and 2, 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,  Customer Ledger (Annexure C-4) was issued by the Chandigarh office of Opposite Parties No.1 and 2 i.e. ‘Unitech Limited, SCO 189-90-91, Sector 17-C, Chandigarh.’ Even the cheques dated 30.04.2011 in the sum of Rs.2,76,190/-, dated 05.10.2011 in the sum of Rs.3,27,285/-, dated 12.05.2012 in the sum of Rs.3,72,056/-, dated 24.07.2012 in the sum of Rs.3,21,004/-, dated 08.10.2012 in the sum of Rs.3,31,151/-, dated 27.11.2012 in the sum of Rs.1,26,916/-, dated 11.12.2012 in the sum of Rs.3,31,151/- and dated 29.03.2013 in the sum of Rs.1,26,916/-, in respect of the unit, in question, was received by Regional Office of Opposite Parties No.1 and 2, at Chandigarh i.e. “Unitech Limited, Regional Office, SCO 189-191, Sector 17-C, 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 Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

12.       As regards objection raised by Opposite Party No.3 in its written statement, with regard to pecuniary jurisdiction, it (Opposite Party No.3) has failed to state as to how this Commission has no pecuniary jurisdiction to try this complaint. It may be stated here, that the complainant has sought refund of the amount of Rs.27,82,774/-, paid by her, towards price of the same, alongwith interest @18% p.a., from the respective dates of deposits; compensation to the tune of Rs.10 lacs, for mental agony  physical harassment and deficiency in rendering service; refund of the penal rent of about Rs.1,92,000/- paid by her as well as monthly rent of Rs.10,000/-, which is forced to pay due to delayed possession and cost of litigation, to the tune of Rs.50,000/-, aggregate value whereof [excluding the interest claimed], if clubbed together, fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. So, the objection taken by Opposite Party No.3, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
13.       To defeat claim of the  complainant, another objection was raised by Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3, that the complainant is an investor, as she 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, she would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. After going through the documents and record of the case, we do not find any merit in the contention of Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3 because the complainant has specifically mentioned in her complaint that the Opposite Parties assured to deliver possession of the unit to the complainant at the time of her retirement in 2013 but they failed to deliver the same and, as such, she was forced to pay penal rent of Government accommodation. So, it is clearly proved that the complainant purchased the said unit for her 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 Parties No.1 & 2 and Opposite Party No.3, 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, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3, therefore, being devoid of merit, is rejected.

14.       Another objection was raised by Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3 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 08.02.2011, 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 07.02.2014, 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 her, as she fall within the definition of consumer. In this view of the matter, the objection of taken by Counsel for Opposite Parties No.1 & 2 and Opposite Party No.3, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.       With regard to the objection raised by Opposite Parties No.1 and 2 in their written statement that liability to construct the said unit and develop the area was of Opposite Party No.3 because Opposite Party No.3 was the developer, as such, they (Opposite Parties No.1 & 2) 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.3 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.3, 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 Parties No.1 and 2 in their written statement. A bare perusal of Annexure OP-3/2 clearly reveals that various communications relating to electrical connection was communicated between Unitech Limited, GMADA as well as PSPCL.  Not only this, even Unitech Limited i.e. Opposite Parties No.1 and 2 had applied for issuance of Partial Completion Certificate (Annexure OP-3/3) to the Chief Administrator, GMADA, Mohali. It is pertinent to note that allotment letter dated 01.12.2010 (Annexure C-2) and Payment Schedule  (at page No.25 of the file) were issued by Unitech (Opposite Parties No.1 and 2). Moreover, the cheques for payment of the unit, was received by the regional office of Opposite Parties No.1 and 2. Not only this, Apartment Allotment Agreement dated 08.02.2011 was executed between Alice Developers Private Limited (Opposite Party No.3), Unitech Limited (Opposite Parties No.1 and 2) and the complainant. The Customer Ledger (Annexure C-4) was also issued by Opposite Parties No.1 and 2. Moreover, brochure (Annexure C-1) in respect of the unit, in question, was issued by Opposite Parties No.1 and 2 in the name of ‘UNIWORLD CITY, MOHALI’. 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 Parties No.1 and 2 ; relevant permission to develop the project from Govt. Authorities i.e. GMADA was obtained by Opposite Parties No.1 & 2. Opposite Parties No.1 and 2 in their 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 Parties No.1 and 2, to prove the same. At the time of arguments, Counsel for Opposite Parties No.1 and 2 stated that no doubt, the amount in respect of the unit, in question, was received by Opposite Parties No.1 & 2 from the complainant but the same was put in a separate account and, thereafter, the said amount was forwarded to Opposite Party No.3. It may be stated here that no proof has been placed on record by Opposite Parties No.1 and 2 that the amount received by them was put in a separate account and forwarded to Opposite Party No.3.  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.3 is hand in glove with Opposite Parties No.1
& 2. From above, it is clear that there is no fault on the part of the complainant because being an innocent buyer, she had paid the huge amount to Unitech Limited and she is not aware about the mutual understanding between Opposite Parties No.1 & 2 and Opposite Party No.3. So, we are of the view that all the Opposite Parties are equally responsible for the lapse of not handing over possession to the complainant.

16.       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. According to Article 4.a.(i) of the Apartment Allotment Agreement dated 08.02.2011 (Annexure C-3), 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 07.02.2014. Admittedly, possession of the unit, was not delivered to the  complainant, by the stipulated time frame, as mentioned in the Agreement i.e. by 07.02.2014 or even till date. Even, in its written version, Opposite Party No.3 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.3, 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. It is that the Opposite Parties were, in the first instance, 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.”.

17.        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-3) i.e. by 07.02.2014, 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.
18.        An objection was also taken by Opposite Party No.3 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 07.02.2014 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 Opposite Party No.3, in this regard, thus, being devoid of merit, must fail, and the same stands rejected.
19.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.27,82,774/-, deposited by her. 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 her (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.3, 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 her. 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 her.

           As far as the plea taken the Company 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 i.e. 07.02.2014 but it was she (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 herself is rescinding the contract, she 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.3, in this regard, has no legs to stand and is accordingly rejected.    

20.        It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is not in dispute that an amount of Rs.27,82,774/-, was paid by the  complainant, as is evident from Customer Ledger (Annexure C-4), 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 her, to the tune of Rs.27,82,774/-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.

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 caused to her. 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/-.

22.       With regard to refund of the penal rent of about Rs.1,92,000/- paid by the complainant due to overstay in Govt. accommodation and paid monthly rent of Rs.10,000/- due to delayed possession, as claimed by her (complainant), we are of the view that when sufficient amount i.e. refund of the deposited amount of Rs.27,82,774/- alongwith interest @15% compounded quarterly as well as compensation for harassment and litigation expenses,  has been granted to the complainant, there is no need to grant any penal rent as well as house rent, as sought by her. 

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

24.       For the reasons recorded above, all the three complaints are partly accepted, with costs, in the following manner:-.

Consumer complaint bearing No. 85 of 2016, titled as Kulwant Kaur Vs. Unitech Limited & Ors. The Opposite Parties jointly and severally, are directed as under:-

 

1. To refund the amount of Rs.27,82,774/-, 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 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. 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.

           

Consumer complaint bearing No. 86 of 2016, titled as Bharti Khanna Vs. Unitech Limited and Ors. - The Opposite Parties are jointly and severally directed as under:-

1. To refund the amount Rs.23,96,063/-, to  the  complainant, alongwith interest @12% (as prayed) compounded quarterly,  from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.3 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. 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 @12%, 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.

Consumer complaint bearing No. 90 of 2016, titled as Tejinder Singh Vs. Unitech Limited and Anr. - The Opposite Parties are jointly and severally directed as under:-

1. To refund the amount Rs.25,75,736/-, 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 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. 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.

 

25.       However, it is made clear that, if the  complainant, in all the three cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him/her (complainant).
26.       Certified copy of this order be placed on the file of consumer complaints bearing Nos. 86 of 2016, titled as Bharti Khanna Vs. Unitech Limited & Ors. and 90 of 2016, titled as Tejinder Singh Vs. Unitech Limited and anr.
27.       Certified Copies of this order be sent to the parties, free of charge.
28.       The file be consigned to Record Room, after completion.

Pronounced.

09.06.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

        MEMBER

 

 

Rb.