Chandigarh

DF-II

CC/25/2015

Raminder Singh Kainth - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Sh. N.S.Jagdeva Adv.

17 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	25/2015
Date of Institution	:	16.01.2015
Date of Decision	:	17.06.2015

 

                  

                                                         

 

 

Raminder Singh Kainth s/o S.Gurmail Singh resident of # 78, Sector 21-A, Near Sekhon Market, Mandi Gobindgarh, District Fatehgarh Sahib, Punjab.

                                      ...  Complainant.

Versus

 

1.       Unitech Limited, through its Chairman/Managing Director, SCO No.189-191, Sector 17-C, Chandigarh.

 

2.       Alice Developer Pvt. Ltd., through its Chairman/Managing Director, having its Registered Office at Basement-6, Community Center, Saket, New Delhi-110017.

…. Opposite Parties.

 

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

SMT.PRITI MALHOTRA, MEMBER

 

 

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

                        Ms.Vertika H.Singh, Counsel for OP No.1

                        OP No.2 exparte.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that the Opposite Party launched a project under the name and style as UNIWORLD located in Sector 97, Mohali, Punjab.  The complainant applied for a flat measuring 1050 sq. ft. According to the Buyer’s Agreement dated 17.11.2011, Annexure C-1 entered between the parties, the total sale consideration of the flat was Rs.31,09,950/-.  He was issued the allotment letter dated 17.11.2011, Annexure C-2.  He opted the construction linked plan.  On 25.10.2011, the complainant deposited Rs.3 lacs through cheque dated 01.11.2011, Annexure C-3 which was acknowledged by the Opposite Party vide receipt, Annexure C-3A.   The complainant further deposited a sum of Rs.3,21,165/- towards 2^nd installment vide D.D. dated 28.01.2012 against receipt, Annexure C-4. Subsequently, he deposited Rs.3,24,000/- through cheque dated 12.04.2012. In all, the complainant deposited Rs.9,45,000/-. It has been averred that all the above mentioned payments have been made by the complainant at the Chandigarh Marketing Office of OP No.2. The account statement dated 15.09.2014 issued by the Chandigarh Office of OP No.2 acknowledging all the three payments has attached as Annexure C-5. It has been averred that thereafter no such demand of further installment has been raised by the OPs due to the fact that no construction of the Tower No.2 has been started.  According to the complainant, the payment of the installments were to be made as per the construction linked plan. As per Article 4 of the terms of the Buyer’s Agreement dated 17.11.2011, the Opposite Parties was to deliver the possession of the fully construction flat within a period of 36 months from date of the agreement.   As per Clause 4 (c) (ii) of the agreement, in case, the OPs failed to deliver the physical possession then the Company was liable to pay to the allottee a compensation calculated @ Rs.5/- per sq. ft. per month of the super area of the apartment for the period of delay in offering the possession of the apartment beyond the period indicated in Clause 4.a.(i).  The complainant visited the site of the OPs in the month of November, 2014 but to his surprise, no construction of the Tower No.2 was started by the OPs.  Ultimately, the complainant got served a legal notice dated 10.11.2014, Annexure C-6 upon the Opposite Parties whereby he requested the OPs to refund his deposited amount but to no effect.  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 the written statement, Opposite Party No.1 took preliminary objections with regard to the territorial jurisdiction and that the complainant has invested in the said flat for resale purposes. It has been admitted that the possession of the unit, in question, was to be handed over within 36 months from the date of agreement but the same was subject to the force majeure circumstances.  It has also been admitted that the Marketing Office of the OP had received the payments. It has been pleaded that the Company is facing extreme financial hardship due to the recession in the reality market. It has further been pleaded that as per Clause 4(a) of the agreement in question, the handing over of the possession of the said flat within 36 months from the date of agreement, was subject to the force majeure circumstances.  It has been pleaded that answering OP has absolute intention of completing the construction work of the said flat and handing over the physical possession of the flat to the complainant at the earliest and to pay the compensation for delay in delivery of possession in terms of the agreement.  According to OP, there is no deficiency in service on its part and the complaint deserves dismissal.
3.           Opposite Party No.2 was duly served through registered AD notice but despite due service it failed to put in appearance and as a result thereof it was ordered to be proceeded against exparte vide order dated 24.02.2015.
4.           The complainant filed rejoinder to the written reply of the Opposite Party controverting its stand and reiterating his own.  
5.           We have heard the learned counsel for the contesting parties and have gone through the documents on record including the written arguments of the Opposite Party.
6.           The objection of the Counsel for the Opposite Party No.1 with regard to the territorial jurisdiction is devoid of merits because it is evident from Annexures C-3-A  and Annexure C-5 that the part payment towards the total sale consideration of the unit in question in the shape of account payee cheque(s)/demand draft (s) have been received by Opposite Party  No.1 at Chandigarh Moreover, Opposite Party No.1 has not denied and disputed its stamp and signatures on Annexure C-3A as a receipt thereof. In addition to this, OP No.1 admitted in its written statement that the cheques from the complainant was received by its Chandigarh Office and as such part of cause of action has arisen to the complainant within the territorial jurisdiction of this Forum and the objection of the OP No.1, in this regard, is rejected accordingly.  
7.            The other objection raised by OP No.1 that the complainant is not consumer as defined under the provisions of the Consumer Protection Act, 1986 is not sustainable as it has failed to prove by leading any documentary evidence on record that he purchased the unit in question for resale purpose. Therefore, we have no hesitation to conclude that the complainant is a consumer 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 complainant and, therefore, the question of resale for earning profit out of it does not arise at this stage.
8.           Undoubtedly, the complainant was allotted the unit in question vide allotment letter, Annexure C-2 for a total sale consideration of Rs.31,09,950/- under the construction link plan. Admittedly, the complainant deposited Rs.9,45,000/- towards the unit, in question, and the remaining payments were to be made as per the construction link plan.  It is also factum on record that the possession of the flat, in question, was to be delivered to the complainant within 36 months from the date of signing the agreement, Annexure C-1 which stood expired on 17.11.2014.  Admittedly, neither the construction of the said project has been completed nor the possession of the unit has been offered/handed over to the complainant so far.  
9.           As regards the plea of Opposite Party No.1 that the possession of the flat in question could not be delivered to the complainant because it was facing extreme financial hardship due to recession in the real estate market is concerned, we find no force in the same because 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, Annexure C-1 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 complainant 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 17.11.2014.  The complainant was, thus, right in seeking the refund of his amount which the Opposite Parties have failed to refund despite service of the legal notice. The Opposite Parties are, therefore, deficient in rendering the promised services to the complainant. Hence, we find it to be legal & justified to direct the OPs to refund the deposited amounts of the complainant.        
10.           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.9,45,000/- to the complainant 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 complainant;
3. To pay Rs.7,000/- as costs of litigation. 

11.           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.
12.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17.06.2015

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

Sd/-

(PRITI MALHOTRA)

MEMBER