Chandigarh

StateCommission

CC/810/2016

Sarla Rani - Complainant(s)

Versus

Unitech Limited - Opp.Party(s)

Abhivadya Sood Adv.

25 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	623 of 2016
Date of Institution	:	22.09.2016
Date of Decision	:	25.01.2017

 

1. Kiran Arora widow of Shri Rajesh Arora.
2. Renu Aora wife of Shri Dinesh Gupta.

Both are residents of P.C.M.S.D. College for Women, Nehru Garden Road, Jalandhar (Punjab) 144001.

…… Complainants

V e r s u s

1. Unitech Limited, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO No.189-190-191, Sector 17-C, Chandigarh, through its General Manager (Sales) Shri Rakesh Chhabra.
2. Alice Developers Private Limited, through its Managing Director, having their Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

…. Opposite parties

Argued by:-      Sh.Gaurav Bhardwaj, Advocate for the      complainants.

Mrs.Vertika H. Singh, Advocate for   opposite party no.1

Opposite party no.2 exparte.

 

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Complaint case No.	:	624 of 2016
Date of Institution	:	22.09.2016
Date of Decision	:	25.01.2017

 

Ashok Goyal son of Sh.Hem Raj Goyal, resident of #2342, Astha Apartment, Sector 48-C, Chandigarh.

…… Complainant

V e r s u s

1. Unitech Limited, a Public Limited Company duly incorporated under the Companies Act 1956 having its Marketing Office at SCO No.189-190-191, Sector 17-C, Chandigarh, through its General Manager (Sales) Shri Rakesh Chhabra.
2. Alice Developers Private Limited, through its Managing Director, having their Registered Office at Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

Argued by:-      Sh.Gaurav Bhardwaj, Advocate for the      complainant.

Mrs. Vertika H. Singh, Advocate for   opposite party no.1

Opposite party no.2 exparte.

 

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

Complaint case No.	:	810 of 2016
Date of Institution	:	15.11.2016
Date of Decision	:	25.01.2017

 

1. Sarla Rani wife of Sh.Sham Lal, resident of #803, Street No.4, Anand Nagar-A, Extension, Patiala.
2. Sham Lal son of Sh.Amar Nath, resident of #803, Street No.4, Anand Nagar-A, Extension, Patiala.

…… Complainants

V e r s u s

1. Unitech Limited, Registered Office 6, its Managing Director/Director/Authorized Signatory, Regd. Office 6, Community Centre, Saket, New Delhi-110017, India.
2. Unitech Limited, through its Managing Director/ Director/Authorized Signatory, SCO 189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Authorized Signatory, Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

Argued by:-      Sh.Abhivadya Sood, Advocate for the        complainants.

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

Opposite party no.3 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 the 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 three complaints, refund of the deposited amount, alongwith interest, compensation etc. has been claimed by the complainant(s). At the time of arguments, on 19.01.2017, it was agreed between the contesting parties, that, in view of above, all these complaints can be disposed of, by passing a consolidated order.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.623 of 2016, titled as Kiran Arora and another Vs. Unitech Limited and another. Complainants no.1 and 2 are real sisters. Son of complainant no.1 was pursuing Bachelor of Engineering, at IIT Ropar. It was felt by complainant no.1 that future prospective of her son, will be better in Mohali, where a large number of offices of Multinational Companies are available, as such, the flat, in question, was purchased for settlement of her son. 

                The complainants came across an advertisement, made by the opposite parties regarding  launching of their residential project, under the name and style ‘Gardens’, situated in Mega Township, Uniworld City, Sector 97, Mohali, Punjab. Believing many tall claims raised that the project is approved by the Competent Authorities and it will contain all the best facilities, which are needed to live comfortable life etc., the complainants decided to purchase a flat. The opposite parties told them that no flat is available in the said project. However, they promised to arrange a flat in resale. Accordingly, residential flat, bearing no.0602, Block A3, Floor-06, Tower-3,  having super area of 1050 square feet (in short the unit), which had already been purchased by Sangeeta Malhotra and Keshav Malhotra, was purchased by the complainants and it was transferred in their name on 23.09.2011. Amount paid by the above said purchasers to the opposite parties was repaid to them, by the complainants. Total price of the said unit was fixed at Rs.26,59,500/-. An amount of Rs.57,910/- was paid as transfer fees, towards getting the Buyer’s Agreement endorsed in the name of the complainants from the earlier allottees. Copy of receipt dated 23.09.2011 and allotment letter dated 02.02.2011, has been placed on record as Annexures C-1 and C-2. Thereafter, the complainants continued to make payment and in all, they had paid an amount of Rs.25,89,252/- i.e. Rs.25,31,342/- plus Rs.57,910/-. In the statement of accounts, total amount paid, was wrongly shown as Rs.27,85,175/-, because one payment of Rs.2,53,833/-, was not realized, as cheque for the said amount offered was dishonored. As per the Agreement, after construction, possession of the unit was agreed to be given within 36 months, from the date of signing of the above said Buyer’s Agreement. Relevant condition no. 4.a.(i) of the Agreement reads thus:-

“4.a. Delivery of Possession:

(i) That Subject to the Apartment Allottee(s) complying with various terms and conditions of this agreement and other requirements as indicated by the Developer, the possession of the Apartment is proposed to be offered to the Apartment Allottee(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable by the Apartment Allottee(s)  under this Agreement have been paid within the stipulated period. It is, however, understood between the Parties that various Apartments shall be ready and shall be completed in phases and handed over to the Apartment Allottee(s) of the completed Tower/Block accordingly.”

3.         Before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent for 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 unit shall be paid by the opposite parties, to the complainants.
4.         As per the Agreement, end date to hand over possession  of the unit was 01.02.2014. Despite making numerous requests, needful was not done, by offering possession of constructed unit to the complainants. A visit to the site of the project showed that completion of the unit is not in sight, in near future.  It was averred that the opposite parties had indulged into unfair trade practice, in getting huge amount from the complainants and not performing their part of the contract. Further, it was alleged that the opposite parties were also deficient in providing service to the complainants.
5.         By stating as above, the instant complaints have been filed by the complainants with a prayer to issue directions to the opposite parties to refund the amount paid, with interest, compensation for mental agony and physical harassment alongwith litigation expenses.
6.         Notice was served upon the opposite parties.
7.         Opposite party no.1 filed its written statement, wherein, an attempt has been made to wash of its hands, by stating that Buyer’s Agreement was signed between it, opposite party no.2 and the complainants. As per Development Agreement dated 01.12.2008 opposite party no.2 was to construct the units and hand over possession thereof, to the purchasers. As opposite party no.2 has failed to do so, as such, no liability can be imposed upon opposite party no.1, which was only to market and sell the project, in question, and also to receive payments from the allottees, on behalf of opposite party no.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. Receipts were also issued by the said office. It was further stated that all demands to make payment were raised by opposite party no.1, which was collected and deposited in a designated account of the developer i.e. opposite party no.2; even the cheques handed over by the complainants were also encashed at Delhi; the unit, in question, is also situated at Mohali. Pecuniary jurisdiction of this Commission was also challenged. It was pleaded that the complaint filed is beyond limitation. It is asserted that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was averred that the complainants being reallottees, consumer complaint was not maintainable.
8.         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 towards price of the unit, as also transfer fees, referred to above, are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. Execution of Buyer’s Agreement between the opposite parties and original allottees and endorsement thereof, in favour of the complainants was also admitted. It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same.
9.         It was not disputed that as per condition no. 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 conditions. The said period was extendable and till such time, the sale deed is executed, the builder will remain owner of the property, in question. It was further stated that it was opposite party no.2, which was to construct the units and deliver possession of the same, as such, no liability can be fastened upon  opposite party no.1 as it was only the confirming party. It was also stated that  opposite party no.1 has no liability to make refund of the amount deposited. It was averred that vide Development Buyer Agreement dated 01.12.2008, opposite party no.2 was assigned development rights, with regard to more than 33.2438 acres of land, in which unit allotted to the complainants is situated. Opposite party no.2 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. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
10.         Despite deemed service, none put in appearance, on behalf of opposite party no.2 (Alice Developers Private Limited), as a result whereof, it was proceeded against exparte, vide order dated 30.11.2016.
11.         The complainants and  opposite party no.1 led evidence in support of their case. 
12.         The contesting parties, raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
13.         To defeat claim of the complainants, an objection was raised by opposite party no.1 that the complainants are speculators, as they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show that the complainants are the property dealers and are indulged in sale and purchase of property, on regular basis. In para no.1 of the complaint, it has been specifically stated by the complainants that since the son of complainant no.1 is pursuing Bachelor of Engineering at IIT Ropar, as such, for his better prospectus in Mohali, on account of availability of large number of Multinational Companies, the said unit was purchased for his settlement. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite party no.1 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. Not only as above, recently under similar circumstances, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

                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 party no.1 in its written reply, therefore, being devoid of merit, is rejected.  

14.         The next question that falls for consideration is, as to whether, this Commission has territorial jurisdiction to entertain and decide this complaint or not. It is contended by Counsel for   opposite party no.1 that Buyer’s Agreement was signed at New Delhi; payments were also received by Gurgaon office of the opposite parties; the flat, in question was also situated at Mohali, Punjab, as such, no cause of action has accrued to the complainants, within the territory of this Commission, therefore, it is not open to this Commission, to adjudicate the claim raised by them (complainants).

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

“Contention of Counsel for opposite party no.1 qua lack of territorial jurisdiction of this Commission to entertain and decide the complaint needs rejection. In the Buyer’s Agreement, it was specifically stated that the Marketing Office of opposite party no.1 is situated at SCO 189-90-91, Sector 17-C, Chandigarh. A similar plea raised by the opposite parties qua lack of territorial jurisdiction of this Commission to entertain and decide the complaint failed against them, was earlier rejected by this Commission, vide judgment titled as Mr.Om Parkash Dua and ors. Vs. Unitech Limited and another, decided on 22.08.2016. In that case, it was noted that the Marketing Office of   opposite party no.1 is situated in Chandigarh and the said office was responsible for development and marketing of the project, in question, as such this Commission has got territorial jurisdiction to entertain the complaint. In that case, it was observed by this Commission 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 many other cases, including the cases, titled as Amit Kohli and another Vs. Unitech Limited and Ors., complaint case no.210 of 2016, decided on 01.09.2016; Manmohan Sandhu Vs. Unitech Limited and ors., Complaint Case no.284 of 2016, decided on 07.10.2016 (02 connected cases) and also recently in Vinay Thukral and another Vs. Unitech Limited and another, Complaint case no. 451 of 2016, decided on 07.11.2016 (04 connected cases).

                Not only as above, in the present case, as is evident from the Agreement, it is specifically stated therein that opposite party no.1/Unitech is a Public Limited Company having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. It is also on record that substantial amount towards price of the said unit, by way of receipts, Annexures C-4 colly. (pages 45 to 48), had been received by Regional Office of opposite party no.1, at Chandigarh i.e. at Unitech Limited, SCO 189-191, Sector 17-C, Chandigarh-160017. Not only as above, even the statement of accounts/customer ledger Annexure C-3 in respect of the unit, in question, was issued by opposite party no.1 at Chandigarh. In view of above, contention raised by Counsel for opposite party no.1 being devoid of merit, is rejected.

15.         Another objection taken by opposite party no.1, with regard to pecuniary jurisdiction of this Commission, also deserves rejection. It may be stated here, that the complainants have sought refund of amount of Rs.25,89,252/- alongwith interest @18% p.a., from respective dates of deposits; compensation to the tune of Rs.3,62,750/- for mental agony and physical harassment; and cost of litigation to the tune of Rs.40,000/-, aggregate value whereof fell above Rs.20 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by opposite party no.1, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.
16.         It is not in dispute that the opposite parties have failed to deliver possession of the unit, in question, within the stipulated period. The complainants have sought refund of the amount paid, alongwith interest and compensation etc. 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, in resale and Buyer’s Agreement which was signed between the original allottees and the opposite parties was endorsed in their favour on 23.09.2011. Constructed unit was sold in favour of the complainants, for an amount of Rs.26,59,500/-, which includes basic sale price, external development charges, car parking charges etc. To endorse name of the complainants in the said Agreement, the opposite parties also received an amount of Rs.57,910/-. In all, the complainants paid an amount of Rs.25,89,252/-, which included i.e. Rs.25,31,342/- plus Rs.57,910/- paid towards transfer fees, referred to above. As per condition no. 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 conditions i.e. on or before 01.02.2014. At the time of endorsement of the said Agreement, in favour of the complainants, the aforesaid condition of handing over possession in 36 months, was never changed. As stated above, before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent for 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. 01.02.2014 already stood expired.

                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 party no.1 failed to give any positive date/time, as to when, possession of the constructed unit will be given. It appears that delivery of possession is not in sight in the near future. 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. In a case titled as Vinay Thukral and another Vs. Unitech Limited and another, Consumer Case No.451 of 2016 decided on 07.11.2016 (alongwith 04 connected cases), while interpreting above said Clause, qua delivery of possession, it was observed as under:-

 

“It is not in dispute that the opposite parties have failed to deliver possession  of the flat, in question, within the stipulated period. As per facts on record, Buyer’s Agreement was signed between the parties on 27.02.2012. Constructed unit was sold in favour of the complainants, for an amount of Rs.33.51 lacs. 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 conditions. As per payment plan, amount was to be paid in ten installments. An amount of Rs.32,02,399/- was paid by the complainants, in nine installments. Tenth installment was to be paid, at the time of handing over possession of the unit, in question. That date already stood expired.

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, but the complainants have refused to come forward to accept the same (possession). Rather, in the written statement, it is admitted by opposite party no.1 that there is a delay in completing construction of the units. At the time of arguments, Counsel for opposite party no.1 vehemently contended that possession of the unit will be offered to the complainants, in near future.  However, he has failed to substantiate his plea raised. Similar contention was taken by opposite parties no.1 and 2, in Amit Kohli and another`s case (supra). However, it was rejected by this Commission noting that completion of the project will take a long time.

Not only this, in the present case, there is nothing on record to show that the opposite parties have even applied for getting occupation and completion/partial completion certificates, in respect of the project, in question. In this view of the matter, it is held that the opposite parties by making false promises to the purchasers including the complainants that possession of the units will be delivered within 36 months from the date of execution of the Agreement, but by not abiding the same, were not only deficient in rendering service but were also guilty of adopting unfair trade practice.”

 

17.         Besides as above, in the present case, there is nothing on record, which may deter this Commission to give contrary findings.  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. At the same time, it is also 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.”

18.         Not only this, 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.

19.         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, 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 actually deposited by them, at the time of purchase/endorsement of the unit, in question. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

20.         An objection was raised by opposite party no.1 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 condition no.4.a.(i) of the Agreement, physical possession of the 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 01.02.2014 alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. 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 consumer. In this view of the matter, the objection of opposite party no.1 in this regard, being devoid of merit, must fail, and the same stands rejected.

21.         Another objection was raised by Counsel for opposite party no.1, that since the complainants are subsequent allottees, they are not consumers. It is not in dispute, that the complainants had purchased the unit, in resale, from the original owners, referred to above. The sale transaction was endorsed by the opposite parties, in favour of the complainants. No new conditions were imposed, at the time of transfer of the said unit, in the name of the complainants, and the conditions already imposed vide the original Agreement, were kept intact. It is well settled law that once the property is transferred/endorsed, in the name of the buyers from the original owner, he/she/they (buyer(s), is/are vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she/they stepped into her/his/their shoes. It was also so said by the National Consumer Commission, New Delhi in case Vatika Limited   Vs Mr. Rajneesh Aggarwal, Revision Petition No. 525 of 2013, decided on 22.07.2014, wherein the complainant was the fourth subsequent allottee. In that case, the National Commission, held as under:-  

“So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and   purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs.”

                The principle of law laid down in the aforesaid case, decided by the National Commission is fully applicable to the present case. In view of the above, the argument raised by Counsel for opposite party no.1, being devoid of merit, is rejected.

22.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant. It is not in dispute that an amount of Rs.25,89,252/- 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). In view of above, the complainants including the complainants in other complaints in connected cases 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. 

                Out of the three connected cases, referred to above, in complaint cases bearing nos.623 of 2016 and 810 of 2016, the units therein, were purchased by the complainants, in resale, and were endorsed in their favour on 22.09.2011 and 05.06.2013, respectively, as such, in that cases, the complainants shall be entitled to get refund of the amount actually paid, alongwith interest at the aforesaid rate w.e.f. 22.09.2011 and 05.06.2013 (i.e. the date on which onward rights/obligations with respect to the unit, in question, were assigned to the complainants), on the amounts/installments and interest at the same rate from the respective dates of deposits on the amounts/installments paid after 22.09.2011 and 05.06.2013. Whatever interest was due or may have accrued in favour of the original allottees, when they had sold the unit to the complainants, on receipt of amount paid to them, has been waived off, by them.

23.         As far as the plea taken by opposite party no.1, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (opposite parties) case, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date but they (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 themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by opposite party no.1, in this regard, has no legs to stand and is accordingly rejected.
24.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the unit, in question, could not be made till date for want of construction, and on the other hand, amount deposited was also not refunded to the complainants alongwith interest, as such, there is continuing cause of action, in their favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by limitation. The submission of Counsel for  opposite party no.1, in this regard, being devoid of merit, must fail, and the same stands rejected.
25.         As far as the liability of opposite party no.1 is concerned, it may be stated here that once it has been proved on record that   opposite party no.1 was a necessary party to the Agreement; it also marketed the project, in question; and had also received substantial amount, from the complainants, towards the said unit, through the receipts, referred to above,  as such, it is equally liable alongwith opposite party no.2/Alice Developers Private Limited, to refund the amount paid by them (complainants). The objection raised by  opposite party no.1 in this regard, being devoid of merit, stands rejected.
26.         As far as the objection taken by opposite party no.1 in complaint case bearing no.810 of  2016, to the effect that the same is not maintainable, because it has been signed by Sham Lal only, it may be stated here that opposite party no.1 has failed to perceive that the said complaint has been signed by both the complainants i.e. Sham Lal and Sarla Rani. As such, if opposite party no.1 was negligent while going through the contents of complaint and head note thereof, no benefit can be carved out by them, by raising such a bald objection. 
27.         No other point, was urged, by the contesting parties, in all the cases.
28.         For the reasons recorded above, all the three are partly accepted, with costs, in the following manner:-

 

Consumer complaint no.623 of 2016. The opposite parties (Opposite parties no.1 and 2) are jointly and severally directed as under:-

1.       To refund the amount of Rs.25,89,252/-, alongwith interest @15% compounded quarterly, from the date of purchase/endorsement of the unit, in question, by them (complainants)  and thereafter, from the respective dates of deposits onwards .

1.       To pay compensation, in the sum of Rs.2 (two) lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
2.       To pay cost of litigation, to the tune of Rs.40,000/- (as prayed) to the  complainants.
3.       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%, in the manner explained therein, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

Consumer complaint no.624 of 2016. The opposite parties (Opposite parties no.1 and 2) are jointly and severally directed as under:-

1.       To refund the amount of Rs.25,51,349/- to  the  complainant, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.2 (two) lacs lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
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 this complaint, till realization.

 

Consumer complaint no.810 of 2016. The opposite parties (Opposite parties no.1 to 3) are jointly and severally directed as under:-

1.       To refund the amount of Rs.31,34,250/- to  the  complainants, alongwith interest @15% compounded quarterly,  from the date of purchase/endorsement of the unit, in question, by them (complainants)  and thereafter, from the respective dates of deposits onwards.
2.       To pay compensation, in the sum of Rs.2 (two) lacs 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.50,000/- 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%, in the manner explained therein, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization

 

29.         However, it is made clear that, if the complainants, in above cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
30.         Certified copy of this order be placed on the connected complaint files, referred to above.
31.         Certified Copies of this order be sent to the parties, free of charge.
32.         The file be consigned to Record Room, after completion.

Pronounced.

25.01.2017

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	810 of 2016
Date of Institution	:	15.11.2016
Date of Decision	:	25.01.2017

 

1. Sarla Rani wife of Sh.Sham Lal, resident of #803, Street No.4, Anand Nagar-A, Extension, Patiala.
2. Sham Lal son of Sh.Amar Nath, resident of #803, Street No.4, Anand Nagar-A, Extension, Patiala.

…… Complainants

V e r s u s

1. Unitech Limited, Registered Office 6, its Managing Director/Director/Authorized Signatory, Regd. Office 6, Community Centre, Saket, New Delhi-110017, India.
2. Unitech Limited, through its Managing Director/ Director/Authorized Signatory, SCO 189-90-91, Sector 17-C, Chandigarh.
3. Alice Developers Private Limited, through its Authorized Signatory, Basement, 6, Community Centre, Saket, New Delhi-110017.

…..Opposite parties

 

Complaints 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.Abhivadya Sood, 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.623 of 2016, titled as Kiran Arora and another Vs. Unitech Limited and another, this complaint has been partly accepted with cost. 

2.         Certified copy of the order passed in consumer complaint bearing no. 623 of 2016, be placed on this file.
3.           Certified copies of the main order, alongwith this order be sent to the parties, free of charge.
4.           The file be consigned to Record Room, after completion.

 

 

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.