Chandigarh

StateCommission

CC/249/2017

Parminderpal Kaur - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sanjeev Sharma, Adv.

29 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	249 of 2017
Date of Institution	:	23.03.2017
Date of Decision	:	29.05.2017

 

1. Parminderpal Kaur wife of Uddam Singh Sandhu, resident of 787-A, Army Complex, Phase-2, Sector 54, Mohali, Punjab.
2. Uddam Singh Sandhu son of Sh.Baldev Singh, resident of 787-A, Army Complex, Phase-2, Sector 54, Mohali, Punjab.

…… Complainants

 

V e r s u s

 

1. Unitech Limited, through its Chairman/Managing Director having Registered Office 6, Community Centre, Saket, New Delhi-110017.
2. Unitech Limited, through its Branch Head/Manager, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Director, having Registered Office at 6, Community Centre, Saket, New Delhi -110017.

…. Opposite parties

 

Complaint under Section 17 of the Consumer Protection

Act, 1986

 

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

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

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

 

 

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.186 of 2017 titled as Sandeep Walia and another Vs. Unitech Limited and others, this complaint has been partly accepted with costs.

2.         Certified copy of the order passed in consumer complaint bearing No.186 of 2017, shall also be placed on this file.
3.         Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.186 of 2017, be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

 

Sd/-                         Sd/-                                         Sd/-

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.

 

 

 

 

 

 

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	186 of 2017
Date of Institution	:	02.03.2017
Date of Decision	:	29.05.2017

 

1. Sandeep Walia wife of Sh.Satish Kumar, resident of #2612, Phase-XI, Sector 65, Mohali, Punjab.
2.  Sh.Satish Kumar son of Late Sh.Jagdish Chand, presently residing at 2612, Phase-XI, Sector 65, Mohali-160062.

…… Complainants

V e r s u s

1. Unitech Limited, Registered Office 6, Community Centre, Saket, New Delhi-110017, through its Vice President.
2. Manager, Marketing, Marketing Office, SCO No.189-90-91, Sector 17, Chandigarh.
3. Alice Developers Private Limited, a Company duly incorporated under the Companies Act, 1956, having its Registered Office at Basement 6, Community Centre, Saket, New Delhi -110017.

…. Opposite parties

Argued by:-      Sh.M.S. Saini, Advocate for the complainants.

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

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

 

Complaint case No.	:	249 of 2017
Date of Institution	:	23.03.2017
Date of Decision	:	29.05.2017

 

3. Parminderpal Kaur wife of Uddam Singh Sandhu, resident of 787-A, Army Complex, Phase-2, Sector 54, Mohali, Punjab.
4. Uddam Singh Sandhu son of Sh.Baldev Singh, resident of 787-A, Army Complex, Phase-2, Sector 54, Mohali, Punjab.

…… Complainants

 

V e r s u s

4. Unitech Limited, through its Chairman/Managing Director having Registered Office 6, Community Centre, Saket, New Delhi-110017.
5. Unitech Limited, through its Branch Head/Manager, having its Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh.
6. Alice Developers Private Limited, through its Director, having Registered Office at 6, Community Centre, Saket, New Delhi -110017.

…. Opposite parties

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

Mrs.Vertika H. Singh, Advocate for opposite parties no.1 and 2.

Opposite party no.3 exparte.

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

 

Complaint case No.	:	256 of 2017
Date of Institution	:	27.03.2017
Date of Decision	:	29.05.2017

 

3. Abhishek Jain son of Shri Abhay Kumar Jain.
4. Smt. Parveen Jain wife of Shri Abhay Kumar Jain.

Both C/o M/s Shubham Wears, Booth No.110, Phase-X, Mohali, Punjab.

…… Complainants

 

V e r s u s

5. The Managing Director, M/s Unitech Limited, Registered Office 6, Community Centre, Saket, New Delhi-110017.
6. The Managing Director, M/s Alice Developers Private Limited, Registered Office, 6, Community Centre, Saket, New Delhi -110017.
7. Authorized Signatory, M/s Unitech Limited, Real Estate Division, 5^th Floor, Signature Towers, South City 1 NH 8, Gurgaon 122001.
8. M/s Unitech Limited, Regional Office, SCO No.189-90-91, Sector 17-C, Chandigarh, through its Branch Manager.

…. Opposite parties

Argued by:-      Sh.Sandeep Jain, Advocate for the    complainants.

Mrs.Vertika H. Singh, Advocate for opposite parties no.1, 3 and 4.

Opposite party no.2 exparte.

 

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 JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of aforesaid three consumer complaints. 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. In all the complaints, the complainants are original allottees and have sought refund of the amount deposited towards price of the units, respectively, purchased by them, in the respective projects of the opposite parties. At the time of arguments, on 24.05.2017, it was agreed by Counsel for the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, all the three complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from consumer complaint bearing no.186 of 2017 titled as Sandeep Walia and another Vs. Unitech Limited and others. The complainants are wife and husband respectively. They opted to purchase a flat, in a project launched by the opposite parties, under the name and style ‘Gardens’, Uniworld City, Sector 97, Mohali, Punjab. Vide allotment letter dated 17.11.2011, they were allotted flat bearing no.0401, Block No.C2, having super area of 1050 square feet (in short the unit), in the said project, for an amount of Rs.31,62,450/-, which included basic sale price, external development charges, infrastructural development charges etc. Buyer’s Agreement (in short the Agreement) was executed between the parties on 29.11.2011. The amount was to be paid as per payment plan Annexure B, forming part of the Agreement i.e. construction linked. As per Clause 4 (a) (i) of the Agreement, after construction, possession of the unit, complete in all respects, was agreed to be given within 36 months, from the date of signing of the above said Buyer’s Agreement.
3.         As per the Agreement, end date to hand over possession of the unit was 28.11.2014. It is contended by the complainants that by the time, this complaint was filed, they had already deposited an amount of Rs.9,45,060/- towards price of the said unit. The said amount also includes service tax paid.  Rest of the amount was to be paid on start of construction. However, no such notice was ever received to make the payment.  It is specific case of the complainants that all the payments were made, as per schedule fixed.
4.         It is case of the complainants that the opposite parties failed to complete construction work of the unit and deliver possession thereof, by the stipulated date or even by the date, this complaint was filed. Possession of the unit was not expected to be delivered in near future also. Fed up with the behaviour of the opposite parties and feeling cheated, the complainants sent letter Annexure C-7, surrendering their flat and claiming refund of amount paid, in terms of Clause 4 (e) of the Agreement, which reads thus:-

“Inability to offer allotted Apartment:

That if for any reason the Developer is not in a position to offer the Apartment, as agreed herein, the Developer may offer the Apartment Allottee(s) alternative property or refund the amount paid by the Apartment Allottee(s) in full with interest @10% per annum from the date of payment(s) made by the Apartment Allottee(s) without any further liability to pay any damages, charges or compensation.”

5.         When the complainants failed to get any result, they approached the District Forum-I, U.T., Chandigarh by filing consumer complaint bearing no.226 of 2016, which was ordered to be withdrawn on 22.11.2016, by passing the following order: -

“Dated:22^nd November 2016

In view of the statement in the shape of endorsement made by counsel for complainants on the order sheet itself, this complaint is dismissed as withdrawn with the liberty to the complainants to seek appropriate remedy.

Certified copies of this order be sent to the parties free of cost. The file be consigned.”

6.         It appears that the complaint was got dismissed as withdrawn, for want of pecuniary jurisdiction of the Forum, in view of ratio of judgment passed by the Hon’ble National Commission, in Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.
7.         It is case of the complainants that before this, they have not filed any other complaint, relating to the subject flat, either before this Commission or any other Fora. By stating as above, a prayer was made by the complainants that the opposite parties be directed to accept the letter sent regarding surrender of the unit, in question and refund the amount paid by the complainants, with interest, as agreed to, vide Clause 4 (e) of the Agreement i.e. @10% p.a.; compensation for mental agony and physical harassment and litigation expenses. In the remaining two connected cases, referred to above, the complainants therein, have sought refund of the amount deposited alongwith interest; compensation and litigation expenses.
8.         Notice in this complaint was issued on 06.03.2017, for 28.03.2017, on which date, Mrs.Vertika H.Singh, Advocate, put in appearance on behalf of opposite parties no.1 and 2 and filed her vakalatnama. She sought time to file reply and evidence. On the adjourned date, on request made by Counsel for the complainants, name of opposite party no.3 was ordered to be read as Alice Developers Pvt. Ltd. instead of Alica Developers Pvt. Limited, as shown in the heading of the complaint.  As such, for fresh notice of the complaint, to opposite party no.3 and also for filing reply and evidence on behalf of opposite parties no.1 and 2, the matter was adjourned to 18.04.2017. On the said date, written reply and evidence, on behalf of opposite parties no.1 and 2 were filed. Since report qua service of notice to opposite party no.3 sent through registered cover was not received, as such, the complaint was adjourned to 08.05.2017 for awaiting service. However, on the date fixed, since despite deemed service, none put in appearance on behalf of opposite party no.3, it was proceeded against exparte, by this Commission, by invoking the provisions of Regulation 10 (2) of the Consumer Protection Regulations 2005.
9.         Opposite parties no.1 and 2 filed their joint written statement, wherein, an attempt has been made to wash of their hands, by stating that Buyer’s Agreement was signed between them, opposite party no.3 and the complainants, and as per Developers Agreement, opposite party no.3 only, was to construct the flats and hand over possession thereof, to the purchasers. As opposite party no.3 has failed to do so, as such, no liability can be imposed upon opposite parties no.1 and 2. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi and also all the payments were received by Gurgaon Office of the opposite parties. Opposite parties no.1 and 2 were only facilitating the complainants, being confirming parties. It was asserted that the complainants being investors, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. They are living in their house at Mohali.
10.         On merits, it was admitted that the complainants had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainants are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not controverted. Execution of Buyer’s Agreement is admitted. It was stated that Chandigarh Office of the opposite parties no.1 and 2 was providing various facilities to the purchasers, including the complainants, on behalf of opposite party no.3. Amount collected from the complainants, was deposited in the designated account of opposite party no.3. It was not seriously disputed that opposite parties no.1 and 2 marketed the project, in question and that the said office collected money from the complainants. It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, possession of the fully developed unit, was to be delivered to the complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure condition. It was further stated that the developer was entitled to reasonable extension of time for delivery of possession of the unit, on account of force majeure circumstances. Penalty Clause to safeguard the rights of the complainants in case of delay aforesaid was incorporated in the Agreement. Opposite party no.3 was also authorized to use Unitech Trade Mark and Corporate Logo, for various purposes, such as promotional, marketing, advertisements etc. It was stated that in terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seek refund of the amount deposited, the developer is at liberty to forfeit the booking/earnest amount, out of the deposited amount, as the case may be. It was further stated that since it was opposite party no.3, which was to construct the units and deliver possession of the same, as such, no liability could be fastened upon opposite parties no.1 and 2, as they were only the confirming parties. It was also stated that  opposite parties no.1 and 2 have no liability to make refund of the amount deposited. It was averred that no letter, with regard to surrendering of the unit, in question, as allegedly sent by the complainants, was ever received by opposite parties no.1 and 2. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
11.         The parties led evidence in support of their cases and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
12.         Before going into merits of the case, we would like to decide preliminary objection taken by  opposite parties no.1 and 2, qua lack of territorial jurisdiction of this Commission to entertain and decide this complaint. It is contended by Counsel for  opposite parties no.1 and 2 that Buyer’s Agreement was signed at New Delhi; demands in respect of making payment towards price of the unit, were also raised by Gurgaon office of the opposite parties, no cause of action has accrued  to the complainants within the territory of this Commission, as such, it is not open to this Commission, to adjudicate the claim raised by the complainants.

                We are not going to agree with the contention raised. Such an issue was raised earlier also by the opposite parties no.1 and 2, in large number of cases filed against them, before this Commission and in case of Mr.Om Parkash Dua and ors. Vs. Unitech Limited and another, consumer complaint bearing no.205 of 2016, decided on 22.08.2016, the said issue was decided as under:-

 

“Contention of Counsel for opposite party no.1 that this Commission has got no territorial Jurisdiction, to entertain and decide the complaint deserves to be rejected. According to Section 17 of the Act, a consumer complaint could be filed by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants. It is apparent on record that the Marketing Office of opposite party no.1 is situated at SCO No.189-90-91, Sector 17-C, Chandigarh. In the Buyer’s Agreement dated 28.10.2009, description of opposite party no.1 is given as under:-

 

“UNITECH LIMITED, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh and its Registered Office at 6, Community Centre, Saket, New Delhi 110017 (hereinafter referred to as Unitech/Confirming Party) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its executors, administrators, successors and assigns) acting through its authorized signatory”

 

It is clearly mentioned that the Marketing Office of opposite party no.1 is situated at SCO 189-90-91, Sector 17-C, Chandigarh. It has been earlier noticed by this Commission, in the case of Sanjeev Dhir  Vs.  Unitech Limited,  Complaint case No. 177 of 2016, decided on 01.08.2016, that it was the Marketing Office of opposite party no.1 situated at Chandigarh, which was responsible for development and marketing of the project, in question. Taking note of information placed on record, in the above case, it was observed as under:-

 

“It is clearly mentioned that the Company has its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. Registered Office is situated at 6, Community Centre, Saket, New Delhi.  Be that as it may, as per documents placed on record by the opposite party, alongwith written statement, it becomes apparent that Marketing Office at Chandigarh/opposite party was responsible for development and marketing of the project, in question. Entire correspondence with the Authorities qua development of the project and getting necessary permissions were being taken up by the Officers of the opposite party,  posted at Chandigarh. Above fact makes it clear that the Branch Office at Chandigarh was substantially taking up the activities qua the project, in question. Copy of customer ledger account Annexure C-25 in respect of the unit, in question, was also issued by the opposite party at Chandigarh. In para no.1 of the preliminary submission, it is also mentioned that Marketing Office of the Company is situated at Chandigarh. Besides all above, it has been candidly admitted by the opposite party, in para no.24 of its reply on merits, that that all the payments were received from the complainant by Chandigarh Office of the Company. The Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839 held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. In view of fact of Marketing Office of  the opposite party at Chandigarh and also as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the  opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

 

Not only as above, payment of Rs.1,36,695/- vide cheque dated 21.07.2012, was received by the Regional Office of opposite party no.1, at Chandigarh. Photocopy of the cheque with receipt given is available at page 36 of the paper book. Facts narrated above, clearly goes to show that a part of action has accrued to the complainants at Chandigarh i.e. within the territory of this Commission, as such, this Commission has got territorial jurisdiction to entertain and decide the complaint.”

               Similar view was reiterated by this Commission in a case titled as Amit Kohli and another Vs. Unitech Limited and Ors., complaint case no.210 of 2016, decided on 01.09.2016 and also in Manmohan Sandhu Vs. Unitech Limited and ors., Complaint Case no.284 of 2016, decided on 07.10.2016 (02 connected cases) and thereafter also, in number of similar cases.

                Not only as above, in the present case also, it is specifically stated that opposite party no.1 is the Public Limited Company having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. At the same time, it has been candidly admitted by opposite parties no.1 and 2, in their joint written reply that the payments were received by them, from the complainants, in respect of the unit, in question. Further, it was also clearly admitted by opposite parties no.1 and 2, in their joint written version that they were providing facilities such as transfer/allotment, assignment of rights etc. to the purchasers, including the complainants, being confirming parties. This admission of opposite parties no.1 and 2, is sufficient to prove that they were actively marketing the project, in question, from their Chandigarh office and have received payment in respect of the unit, in question, from the complainants at that Office. Furthermore, the fact of receiving substantial amount towards the said unit by opposite parties no.1 and 2 at their Regional Office at SCO 189-191, Sector 17-C, Chandigarh-160017, is fortified from copy of the cheque in the sum of Rs.3,22,395/-placed on record at page 49 of the file. In view of fact of Marketing Office of opposite parties no.1 and 2 at Chandigarh and also as per the documents, referred to above, issued from Chandigarh Office of the Company, a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  Contention raised by Counsel for  opposite parties no.1 and 2, in this regard, being devoid of merit, is rejected.

13.         To defeat claim of the complainants, another objection was raised by Counsel for opposite parties no.1 and 2, that the complainants are investors, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by  opposite parties no.1 and 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. 2016 (1) CPJ 31, 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,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 2, in their written reply, therefore, being devoid of merit, is rejected.  
14.         Another objection was raised by Counsel for opposite parties no.1 and 2, that the dispute being related to contractual matter, the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainants 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  Agreement, physical possession of the constructed unit, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 28.11.2014 alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. There is a breach of terms and condition of the Agreement, on the part of the opposite parties, which act amounted to deficiency in providing service and adoption of unfair trade practice. 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 complainants have 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 them, as they fall within the definition of a consumer. In this view of the matter, the objection of opposite parties no.1 and 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

15.         It is not in dispute that the opposite parties have failed to deliver possession of the unit, in question, within the stipulated period or even till date. As stated above, except two connected complaints, referred to above, wherein the complainants have sought refund of amount paid alongwith interest,  the complainants in consumer complaint bearing no.186 of 2017 have sought refund of the amount paid, alongwith interest, as per Clause 4 (e) of the Agreement.

                It is to be analyzed as to whether, in view of facts noted above; pleadings on record and arguments raised, it is open to the complainants, to claim above said relief or not.

                It is not in dispute that the complainants purchased the unit, in question, for which Buyer’s Agreement was signed between the parties on 29.11.2011. Constructed unit was sold in favour of the complainants, for an amount of Rs.31,62,450/-, which includes basic sale price, preferential location charges etc. In all, the complainants paid an amount of Rs.9,45,060/-. As per condition no. 4.a.(i) of the Agreement, possession of the built-up unit was to be delivered to the complainants, within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions i.e. on or before 28.11.2014. Before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent upon the opposite parties, to give notice to the complainants, in case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances. It was further provided in condition no.4.c.(ii) in the Agreement that penalty @Rs.5/- per square feet, per month of the super area, for the period of delay in delivery of possession of the flat shall be paid by the opposite parties, to the complainants. The date of offer of possession of the unit i.e. 28.11.2014 already stood expired. Now we are in May 2017.

16.         Contention of Counsel for the complainants that construction at the spot is not complete needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainants. It is not a case of the opposite parties that possession of the unit was ready to be delivered by the stipulated date, but the complainants have refused to come forward to accept the same (possession). Rather, at the time of arguments, Counsel for opposite parties no.1 and 2 failed to give any positive date/time, as to when, possession of the constructed unit will be given. It was only said that construction will be completed soon and opposite parties have applied for partial completion certificate to the Competent Authorities. It appears that delivery of possession is not in sight in the near future. At the same time, opposite parties no.1 and 2, have failed to prove, by placing on record any convincing evidence that they had faced any force majeure circumstances, on account of which, they failed to offer and deliver possession of the unit, to the complainants. Qua this very project, in a large number of cases, it has been found as a matter of fact that construction has come to stand still. As stated above, even at the time of arguments, no commitment was made to deliver possession of the unit, in near future. Under these circumstances, it can be said that there is a material violation on the part of the opposite parties. It is a settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

17.         Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

18.         Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                However, in the present case, as stated above, possession of the unit(s), has not even been offered, what to speak of delay in offering thereof. Under these circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit by the stipulated date or by the time, this complaint was filed, the complainants are thus, entitled to get refund of amount deposited by them.

19.         As far as the liability of  opposite parties no.1 and 2, is concerned, it may be stated here that once it has been proved on record that  opposite parties no.1 and 2 were necessary parties to the Agreement; they also admittedly marketed the project, in question; and had also received payments from the complainants, towards the said unit, as such, they are equally liable alongwith opposite party no.3, to refund the amount paid by them (complainants). Not only as above, the National Commission, in a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016, has held that even the marketing agency, who sells out a project, if found deficient, at any stage and the project is not complete, as per commitment made, has to face the consequences of duping the gullible buyers, of their hard-earned money. As such, the objection raised by Counsel for opposite parties no.1 and 2, to the effect that they being only confirming parties are not liable to refund the amount paid by the complainants, being devoid of merit, stands rejected.
20.         As far as the plea taken by opposite parties no.1 and 2, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties no.1 and 2) case, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date but the complainants wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainants are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per law. In this view of the matter, the plea taken by opposite parties no.1 and 2, in this regard, has no legs to stand and is accordingly rejected.
21.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants, if yes, to what extent. It is not in dispute that an amount of Rs.9,45,060/- was paid by the complainants, 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%) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments.  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).  No doubt, under similar circumstances, while ordering refund of the amount deposited, this Commission has been awarding refund of the amount deposited, alongwith interest @15% compounded quarterly, but, since in consumer complaint bearing no.186 of 2017, the complainants themselves have sought interest @10% p.a. on the amount paid i.e. as per Clause 4 (e) of the agreement, as such, we are inclined to grant such rate of interest. In such circumstances, it is held that the complainants in the said complaint are entitled to refund of the amount paid alongwith interest @10% p.a. from the respective dates of deposits, till realization, as prayed for by them.  However, in the remaining two connected cases, bearing nos. 249 of 2017 and 256 of 2017, the complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @15% compounded quarterly, (less than the rate of interest charged by the opposite parties, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization. 
22.         Once this Commission has held that the complainants in all the complaints are entitled to get refund of the amount deposited, alongwith interest and compensation, as such, the plea of opposite parties no.1 and 2 that the complainants are entitled to get penalty amount @Rs.5/- per square feet of super area of the unit, in question, has no legs to stand and is accordingly rejected.
23.         No other point, was urged, by Counsel for the contesting parties, in all three complaints.
24.         For the reasons recorded above, all the complaints are partly accepted, with costs, in the following manner:-

 

In Consumer complaint bearing no. 186 of 2017 titled as Sandeep Walia and another Vs. Unitech Limited and others, the opposite parties jointly and severally are directed as under:-

1. To refund the amount of Rs.9,45,060/- to  the  complainants, alongwith interest @10% p.a., as prayed for, from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.50,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the  complainants.
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 @13% p.a., instead of @10%, from the respective dates of deposits onwards, and interest @13% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of the complaint, till realization.

 

In Consumer complaint bearing no. 249 of 2017 titled as Parminderpal Kaur and anr. Vs. Unitech Limited and others, the opposite parties jointly and severally are directed as under:-

1. To refund the amount of Rs.52,53,675/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/-  to the  complainants.
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 complaint, till realization.

In Consumer complaint bearing no. 256 of 2017 titled as Abhishek Jain and anr. Vs. The Managing Director, M/s Unitech Limited and others, the opposite parties jointly and severally are directed as under:-

1. To refund the amount of Rs.36,13,100/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1.25 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/-  to the  complainants.
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 complaint, till realization.

25.         However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said units, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
26.         Certified copy of this order, be placed on connected complaint files, referred to above.
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.

29.05.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

MEMBER

 Rg.