Chandigarh

DF-II

CC/213/2016

Manjeet Singh Kandra - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma Adv.

08 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	213/2016
Date of Institution	:	23.03.2016
Date of Decision	:	08.09.2016

 

                                               

                                     

 

1.       Sh.Manjeet Singh Kandra son of Late Mr.Kartar Singh.

 

2.       Sumeet Kaur Kandra wife of Paramjeet Singh through GPA

 

Both residents of 6196, Modern Housing Complex, Manimajra, Chandigarh 

                                      ...  Complainants.

Versus

1.       Unitech Ltd., through its  Chairman Sh.Ramesh Chandra having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.

 

2.       Unitech Ltd., through its  Managing Director, Sanjay Chandra having registered Office at 6, Community Centre, Saket, New Delhi-110017.

…. Opposite Parties.

 

BEFORE:    SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

 

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

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

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainants is that the complainant No.1 who is retired from KRIBHCO (Krishak Bharti Cooperative Ltd.) looking for some source of earning his livelihood and allured by assurances/representations made by the representatives of the OPs, he alongwith complainant No.2 agreed to purchase a shop in the project of the OPs  i.e. Garden Galleria at Uniworld City, Sector 106, Mohali by paying Rs.2,36,703/- through cheque dated 26.01.2011 vide application (Annexure C-1)  at Chandigarh.  Thereafter, the complainants were allotted the Shop No.10 B, admeasuring 392.45 sq. ft., Ground Floor in the complex named Garden Galleria at Uniworld City, Sector 106, Mohali vide provisional allotment letter dated 27.01.2011 by the OPs (Annexure C-2) at the sale price of Rs.23,07,606/-.   The OPs without executing the buyer agreement kept on asking for the payments and the complainants made the payments of Rs.1,50,000/- and Rs.86,702/- on 02.01.2011 through cheques.  It has further been averred that at the time of booking in 2011, the OPs assured to develop and handover the project within 21 months.  Subsequently, a buyer agreement dated 27.01.2011 (Annexure C-3) was executed between the parties (for short “agreement”).  Subsequently, the complainants further deposited a sum of Rs.2,36,703/- on 14.03.2011 and  Rs.2,36,703/- on 08.04.2011, to make the total to Rs.9,46,811/-.  It has further been averred that they paid all the installments as per the demands of the OPs but when they failed to offer the possession of the unit till the end of October, 2013, the complainant No.1 visited the site on 15.12.2013 where the shop in question was allotted but they shocked to see the ground reality as no actual development was thereon.  According to the complainants, as per the agreement, the possession should have been handed over in October, 2013. The complainants kept on inquiring from the OPs about the status of the start of the development at the project vide e-mails/letters (Annexure C-5 Colly.) but to no effect.  It has further been averred that after a passage of more than 6 years from signing of the agreement, neither the possession has been offered nor the development at the project has been started nor the deposited amounts alongwith interest has been refunded to them despite their repeated requests. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.
2.           In their written statement,  the OPs took the preliminary objections inter alia that this Forum do not have the jurisdiction to entertain and try the complaint as the Buyer’s Agreement was executed at New Delhi and the demands for payments have been raised from Gurgaon Office of the OPs; that the complainants are simply investors who invested in the said commercial unit for resale purposes and as such they do not fall within definition of the consumers, as defined under Section 2 (1) (d) of the Act; that in terms of Clause 8.b. of the Agreement, it is open to the opposite parties to ask for further extension of time to handover possession of the unit, on account of force majeure circumstances, under which construction could not be completed and that as per Article 15 of the agreement, the OPs have right to terminate the agreement and forfeit the earnest money in case the purchaser fails to  perform  or observe the stipulation as contained in the agreement.      On merits, it has been admitted that the complainants purchased the unit, in question. The payment of Rs.9,46,811/- has also not been disputed. It has further been pleaded that as per Article 4(i) of the Agreement, the OPs were to hand over possession of the unit to the purchaser within 21 months hereof provided, all amount due and payable by the purchaser under the agreement have been paid to the Developer and other terms and conditions of the allotment/purchase agreement of the Unit are complied with. It has been pleaded that the opposite parties could not complete the construction/ development work and hand over possession of  the unit to the  complainants, by the stipulated date, as there was global meltdown/recession of the economy worldwide, resulting into cash crunch throughout and also due to objection raised by the Punjab State Power Corporation Limited (PSPCL), a number of times, as such, electricity could not be made available at the site, by the opposite parties, due to which, rest of the construction/ development work and providing of the basic amenities was delayed.  It has further been pleaded that recently vide letter dated 16.05.2016, it was intimated by the PSPCL to get the proposed new route, to be vetted by the GMADA. Vide letter dated 18.05.2016, No Objection Certificate in that regard, was provided to the PSPCL. It has further been pleaded that the construction work of the unit, is being carried out, in full swing and the opposite parties are making sincere efforts to hand over possession of the constructed unit, to the complainants at the earliest. It has further been pleaded that for any delay, stipulated penalty has been provided in the Agreement, which safeguards the rights of the complainants, in case they are eligible for that. The remaining averments are denied, being wrong. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint. 
3.           The complainants filed rejoinder to the written reply of the Opposite Parties controverting their stand and reiterating their own.
4.           We have heard the learned counsel for the complainant at the preliminary hearing and have gone through the documents on record.
5.         The first preliminary objection of Counsel for the opposite parties that this Forum lacks territorial jurisdiction to entertain and decide the complaint needs to be rejected because in the complaint, the agreement in question was registered between the complainant and the OPs having its Marketing Office at Unitech Ltd., SCO 189-90-91, Sector 17-C, Chandigarh. Moreover, in the written statement, it has also been admitted that the payments qua the unit in question through cheques were received by the OPs at Chandigarh and as such a cause of action has accrued to the complainants, at Chandigarh and therefore, this Forum has got territorial jurisdiction to entertain and decide the complaint and the objection of the OPs in this regard, being devoid of merit, must fail, and the same stands rejected. 
6.           The second preliminary objection raised by the OPs that the complainants are not consumers as defined under the provisions of the Consumer Protection Act, 1986 is also not sustainable as they have failed to prove by leading any documentary evidence on record that the complainants have purchased the unit in question for resale purposes. Therefore, we have no hesitation to conclude that the complainants are consumers as defined under section 2(i)(d) of the Consumer Protection Act.  Moreover, the possession of the unit in question has not been delivered to the complainants and, therefore, the question of resale for earning profit out of it does not arise at this stage.
7.         Admittedly, possession of the unit, was not delivered to the complainants, by the stipulated date or even till date. Even, in the written version, the opposite parties, frankly admitted that possession of the unit, in question, could not be offered to the complainants, by the stipulated date, as they had failed to complete the construction and development work, on account of extreme financial hardship, 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 opposite parties, till date, what to speak of obtaining final completion certificate, which is mandatory, before delivery of possession of the unit. Admission made by the opposite parties, itself makes it clear that they have not obtained necessary approvals/sanctions from the PSPCL, as a result whereof, they were not provided with electricity, for the project in question. Still, the opposite parties are working on obtaining permissions, from the PSPCL/GMADA.  Even otherwise, the ground of recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. 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/development work 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  opposite parties or the contractors engaged by them, 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 construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & others v. M/s Unitech Limited (along three connected complaints),  2015 (4) CPR 34. 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 parties 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.”.

8.         The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. Moreover, the terms of the agreement between the parties do not justify the delay in completion of the project on the aforesaid ground and, therefore, the opposite parties were duty bound to complete the construction as per the terms of the agreement, irrespective of the recession in the market. Here our view is also fortified by the ratio of law laid down by the Hon'ble National Commission in the case titled as Puneet Malhotra versus Parsvnath Developers Ltd, Consumer Complaint No. 232 of 2014, passed on 29.01.2015.  We are of the considered view that the complainants cannot be made to wait for an indefinite period especially after the expiry of the stipulated period of the handing over the possession of the unit, in question, which in the present case stood expired on October, 2012.   Besides this, the OPs who are themselves defaulters cannot be allowed to take the shelter of the terms of the agreement in question, as alleged. The complainants were, thus, right in seeking the refund of the deposited amounts and non-refund thereof on the part of the OPs certainly amounts to deficiency in service, as also indulgence into unfair trade practice.
9.           In view of the foregoing discussion, we are of the opinion that the present complaint deserves to be allowed. The same is accordingly allowed. The Opposite Parties are jointly and severally  directed as under:-

1. To refund Rs.9,46,811/- to the complainants alongwith interest @ 9 % per annum from the respective dates of deposit till realization;
2. To pay Rs.50,000/- as compensation for mental agony and harassment caused to the complainants;
3. To pay Rs.7,000/- as costs of litigation. 

This order be complied with by the Opposite Parties jointly and severally, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall also carry penal interest @12% per annum from the date of this order till actual payment besides payment of litigation costs.

10.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

08.09.2016                                                                              Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (PRITI MALHOTRA)

MEMBER