Chandigarh

DF-II

CC/274/2016

Rita Kaushik - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Manoj Lakhotia Adv.

06 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	274/2016
Date of Institution	:	25.04.2016
Date of Decision	:	06.10.2016

 

                                               

                                     

 

 

Rita Kaushik d/o Sh.O.P.Kaushik and Shivani  Nijhawan w/o Sh.Amitabh Nijhawan, both residents of H.No.1120, Sector 43-B, Chandigarh. 

 

                                      ...  Complainants.

Versus

1.       Unitech Ltd., Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh

2.       Alice Developers Pvt. Ltd., Registered Office at Basement, 6, Community Centre, Saket, New Delhi.

…. Opposite Parties.

 

BEFORE:    SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

 

Argued by: Sh.Manoj Lakhotia, 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 OPs jointly launched a project for setting up a Mega Township Project in the name & style of “Uniworld City” comprising of plots, villas, multistory group housing, commercial complexes and independent floors in Sector 97, SAS Nagar, Mohali. It has further been pleaded that OP No.1 was owner in possession of the project land having its office in Chandigarh and OP No.2 was the developer of the project land.  The complainants jointly booked a Two Bedroom Flat in the project of the OPs by depositing Rs.2.90  lacs as booking amount vide receipt dated 28.06.2011 (Annexure C-1). The OPs allotted a flat No.602 at 6^th Floor, Block/Tower “C”  having super area  of 1050 sq. ft. in Sector 97 (Gardens), Uniworld City, Mohali vide allotment letter dated 28.06.2011 (Annexure C-2). The total sale consideration of the flat in question was Rs.30,67,149/-.  Subsequently a Flat Buyer’s Agreement was executed with the parties on 14.07.2011 at Chandigarh  (Annexure C-3) and as per Clause 4a of the agreement in question, the possession of the unit was proposed to be offered to the allottee within 36 months of the signing of the agreement, subject to fore majeure circumstances.  Subsequently, the complainants paid a sum of Rs.3,11,613/- on 08.09.2011 and Rs.3,12,619/-  on 24.11.2011 towards second and third installment as per the payment plan (Annexure B) attached with the agreement vide receipts Annexure C-4 and C-5 respectively and the 4^th installment was to be paid on commencement of the construction and thereafter remaining installments were to be paid as per the development and in accordance with the payment plan.  In all, the complainants alleged to have deposited a sum of Rs.9,14,232/-.   It has further alleged that after waiting about more than one and half years when no demand of the installment was raised, then the complainants visited the OPs and enquired about the development of the work and they were informed by the OPs that the construction of the Tower “C” was to be completed very soon. It has further been alleged that when the OPs failed to raise the construction of the Tower “C” within the stipulated period they requested them to refund the deposited amounts with interest 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 their written statement,  OP No.1 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 OP; 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 4(a)(ii) of the Agreement,  it was stipulated that the developer shall be entitled for reasonable extension of time in case there was any default or negligence attributable to the allottee or in case the construction was delayed due to any reasons of lockout, strike, slowdown or civil commotion or by reasons of war or enemy action or terrorist action or earth quake or by act of god or due to any reason or circumstances beyond the control of the developer.  It has further been pleaded that the Agreement was executed between both the opposite parties and in the said Agreement, it was clearly mentioned  that opposite party no.2 is the developer of the project. Role played by opposite party no.1 is very limited, as such, it may not be fastened with the liability, as prayed for, in this complaint.       It has further been pleaded that for any delays, stipulated penalty has been provided in the Agreement, which safeguards the rights of the complainants.  It has further been pleaded that the answering opposite party No.1 has no liability to make refund of the amount deposited. 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.           Despite due service, OP No.2 did not turned up and hence, it was ordered to be proceeded against exparte vide order dated 16.08.2016.
4.           The complainants filed rejoinder to the written reply of the OP No.1 controverting its stand and reiterating their own.
5.           We have heard the learned counsel for the contesting parties and have gone through the documents on record.
6.           The first preliminary objection of Counsel for the OP No.1 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 is having its Marketing Office at Unitech Ltd., SCO 189-90-91, Sector 17-C, 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.  Here our view is strengthened by the judgment of the Hon'ble State Commission passed in the case titled as Sanjeev Dhir  Vs.  Unitech Limited,  Complaint case No. 177 of 2016, decided on 01.08.2016, in which it was held as under:

9.       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.”

7.           The second preliminary objection raised by OP No.1 that the complainants are not consumers as defined under the provisions of the Consumer Protection Act, 1986 also deserves to be rejected 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 so far and, therefore, the question of resale for earning profit out of it does not arise at this stage.
8.           The third preliminary objection raised by OP No.1 that this Forum does not have the pecuniary jurisdiction also deserves to be rejected because the complainants have sought the refund of Rs.9,14,232/-  only and not the possession of the unit in question and as such this Forum has got the pecuniary jurisdiction to adjudicate upon the instant complaint as per section 11 of the Consumer Protection Act, 1986.
9.           As regards the limited liability of OP No.1 is concerned, it is apt to mention here that OP No.1 was a necessary party to the Agreement (Annexure C-3) as  it marketed the project, in question; and had also received part amount from the complainants, towards the said unit, through the cheque(s) in question, favouring “Unitech” as such, it is equally liable alongwith opposite party no.2, to refund the amount paid by them (complainants). The objection raised by Counsel for opposite party no.1, in this regard, being devoid of merit, stands rejected.
10.           Admittedly, the possession of the unit, was not delivered to the complainants, by the stipulated date or even till date. Even, in the written version, OP No.1 has not stated that as to whether the construction of the Tower “C” where the unit of the complainants  is situated has been completed as on date and as to when the possession of the unit in question was likely to be offered/delivered to the complainants.   It is also evident on record that the complainants have already paid the amounts of Rs.9,14,232/- to the OPs and the rest of the amount was to be paid to the OPs as per the payment plan (Annexure B) attached with the agreement. The opposite parties were duty bound to complete the construction as per the terms of the agreement, irrespective of the recession in the market. 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 July, 2014.   Besides this, the OPs who are themselves failed to adhere to the terms of the agreement cannot be allowed to take the shelter thereof. 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.
11.           Furthermore, OP No.2 despite due service did not care to contest the case and, as such, it can be concluded without any hesitation that either it admits the claim of the complainants or has nothing to say in the matter.  
12.           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.9,14,232/- 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.

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

Announced

06.10.2016

 

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (PRITI MALHOTRA)

MEMBER