Chandigarh

DF-II

CC/494/2014

Sandeep Mahajan - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Rohit Sharma, Adv.

30 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	494/2014
Date of Institution	:	19.09.2014
Date of Decision	:	30/03/2015

 

                  

                                                         

 

1.       Sandeep Mahajan s/o Late Sh.Banwari Lal Mahajan, r/o House No.2503, Top Floor, Phase-XI, Mohali(Pb.).

 

2.       Divya Mahajan daughter of Late Sh.Vishaw Mohan Joshi r/o House No.2503, Top Floor, Phase-XI, Mohali(Pb.).

                                      ...  Complainants.

Versus

Unitech Limited, Marketing Office at SCO No.189-90-91, Sector 17-C, Chandigarh-160017 through its Managing Director.

…. Opposite Party.

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

 

Argued by:  Sh.Rohit Sharma, Counsel for the complainants.

                        Ms.Vertika H.Singh, Counsel for the OP.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that the Opposite Party came up with a project in the name and style as Gardens (Sector 97) Uniworld City, Mohali and the company widely publicized the offer of selling units(Flats) in the aforesaid gardens.  The complainants were assured that the layout plan of the said Township had already been approved by the Govt. of Punjab.  The complainants agreed to purchase a flat vide application dated 28.06.2011 and were allotted Flat No.202, Block C-1, Floor-2, measuring 1050 sq. ft. in Mega Township ‘Uniworld City’ Sector 97, Mohali, Punjab vide allotment letter of the even date, Annexure C-1 for total sale consideration of Rs.32,83,305/- under construction link plan.  The copies of the allotment letter, payment schedule and demand letter, all dated 28.06.2011 are Annexures C-1 to C-3. According to the complainants, they deposited in all  a sum of Rs.9,32,083/- (i.e. Rs.3 lacs vide receipt dated 28.06.2011, Annexure C-4, Rs.3,13,647/- vide receipt  dated 07.09.2011, Annexure C-5 and Rs.3,18,636/- vide receipt dated 21.11.2011, Annexure C-6).  In response to the e-mail dated 24.11.2013, Annexure C-7, the complainants  were informed by the Opposite Party vide e-mail dated 29.11.2013, Annexure C-8 that the construction was expected to commence in Tower C in the 3^rd quarter 2014 (tentatively).  Vide e-mail dated 19.06.2014, Annexure C-9, it was informed that the commencement of the construction would be commenced in 2-3 months.  Since no action was taken by the Opposite Party, the complainant No.1 again sent a notice dated 17.06.2014 to intimate him the date on which the construction would be commenced as even 3^rd quarter of 2014 was about to start.  According to the complainants, as per Clause 4 (a) under Article 4 of the agreement, the possession of the unit was to  be delivered within 36 months of signing of the presents i.e. agreement dated 14.07.2011, Annexure C-11 subject to force majeure. According to the complainants, the time of 36 months had already expired on 13.07.2014 but what to talk of handing over the possession even the construction has not been started so far.  It has further been averred that the project was to be completed by 03.07.2014 but the same is still not even started and there is no sign of getting the same to start in near future. According to the complainants, they after losing all faith in the Opposite Party, sent various e-mails and representations asking for refund of the deposited amount 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 Opposite Party, the complainant has filed the instant complaint.
2.           In the written statement, the Opposite Party took preliminary objections with regard to the territorial jurisdiction and arbitration clause in the agreement. It was 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 was stated that the Opposite Party had absolute intention of starting the construction work and handing over the possession of the flat to the complainants and the correct status of the project was intimated to the complainant time and again.  According to OP, there is no deficiency in service on its part and the complaint deserves dismissal.
3.           The complainant filed rejoinder to the written reply of the Opposite Party controverting their stand and reiterating his own.        
4.           We have heard the learned counsel for the parties and have gone through the documents on record including the written arguments of the Opposite Party.
5.           The objection of the Counsel for the Opposite Party with regard to the territorial jurisdiction is devoid of merits because it is evident from Annexures C-5 and C-6 that the part payments towards the total sale consideration of the unit in question i.e. Rs.3,13,647/- and  Rs.3,18,636 in the shape of account payee cheques respectively, have duly been received by the Opposite Party at Chandigarh. Moreover, the Opposite Party has not denied and disputed its stamp and signatures on Annexure C-5 and C-6 as a receipt thereof which is clear from para 3 on merits of the written statement.
6.           As regards the contention of the Opposite Party with regard to the existence of the arbitration clause in the agreement is concerned, the same is not acceptable because as provided under Section 3 of the Consumer Protection Act, 1986, the provisions under the Act are in addition to and not in derogation of the provisions of any other law for the time being in force and as such mere existence of the arbitration clause in the agreement would not oust the jurisdiction of this Forum.
7.           Undisputedly, the complainants were allotted Flat No.202 in Block C-1, Gardens (Sector 97) Uniworld City, Mohali  vide allotment letter dated 28.06.2011 for total sale consideration of Rs.32,83,305/- under the construction link plan. Admittedly, the complainant made the payment of Rs.9,32,083/- towards the flat in question and the remaining payments was to be made as per the construction linked plan.  It is also factum on record that the possession of the flat in question was to be delivered to the complainants within 36 months from the date of signing the agreement dated 14.07.2011 which stood expired on 14.07.2014.  Undisputedly, the construction of the said project has neither been started  nor the possession of the allotted unit has been offered or handed over to the complainants so far.   In this view of the matter, we are of the considered view that the complainants or any allottee(s) cannot be made to wait for an indefinite period, after depositing part of their hard earned money with the OP, just on the ground of force majeure circumstances especially after the expiry of the stipulated period for handing over the possession, which in the present case is undisputedly 36 months from the date of the agreement. Not only this, it is also neither the case nor the assertion or pleading of the OP even in the reply that the construction has been started.  In any case, the OP cannot be granted double benefits, on the one hand to retain the amount of the complainants and on the other side not to start the construction for an indefinite period on the ground of force majeure circumstances. Hence, we find it to be legal & justified to direct the OP to refund the amount of the complainants.        
8.           In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed. The same is accordingly allowed. The Opposite Party is directed as under :-

1. To refund Rs.9,32,083/- 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. 

9.           This order be complied with by the Opposite Party, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry 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

30/03/2015

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

cmg

 

DISTRICT CONSUMER FORUM-II