DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

1.                 Anand Engineers, 242, Industrial Area, Phase I, Chandigarh through Mr. Anand Aggarwal, Partner, through General Power of Attorney, Janinder Jain s/o Sh. Om Parkash Jain r/o H.No.2546, Sector 47-C, Chandigarh

2.                 Mr. Anand Aggarwal s/o Sh. R.K. Aggarwal, Partner Anand Engineers, 242, Industrial Area, Phase-I, Chandigarh, through his General Power of Attorney, Janinder Jain s/o Sh. Om Parkash Jain r/o H.No.2546, Sector 47-C, Chandigarh.

                                      ---Complainants.

Versus

1.                 Unitech Ltd., Registered Office, 6, Community Centre, Saket, New Delhi 110017 through its Managing Director

Local Office SCO 189-190-191, Level-1, Sector 17-C, Chandigarh.

2.                 J.D. Realtors Ltd., SCO 317-318, Level-1, Sector 35-B, Chandigarh – 160022 through its Director.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

Argued by:   Sh. Sandeep Sharma, Adv. for the complainants

                        None for OP No.1

                        OP No.2 already exparte. 

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Anand Engineers & Anr. have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs against opposite party No.1 :-

i)                   to pay Rs.12,23,500/- alongwith compound interest @ 18% from the date of filing of the complaint till realization

ii)                to pay Rs.5.00 lacs on account of harassment, humiliation and mental agony.

2.                           In brief, the case of the complainants is that they booked a flat with opposite party No.1 under its pre-launch scheme, through opposite party No.2, and paid initial sum of Rs.6,50,000/- vide cheque dated 14.6.2006.  According the complainants, the scheme was finally launched by opposite party No.1 in July 2007. The complainants were issued allotment letter dated 31.7.2007 for Apartment No.301, Floor-3, HBTN-Tower-6, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh.

                   According to the complainants, the details in the allotment letter revealed that the actual area and design etc. of the apartment was not as per the representation made earlier.  Earlier it was projected that the approximate area of the apartment would be between 1400 and 1900 sq. ft.  But the proposed allotment was for 2096 sq. ft. which overshot the budget by over Rs.6.00 lakhs.  Accordingly, the complainants did not accept the allotment letter/contract and sought refund of their application money.  However, the opposite parties failed to refund the amount despite visits to their site at Noida and office of opposite party No.1 at Delhi and service of legal notice dated 5.3.2010 by the complainants.

                   According to the complainants, failure on the part of the opposite parties to refund the application money amounts to deficiency in service.   In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                           Opposite party No.1 in its written reply admitted the facts with regard to booking of the apartment and the payment made.  However, it has been denied that any communication regarding refund was received from the complainants.  It has been pleaded that rather the opposite party had been asking the complainants through various letters/reminders (R-2 colly.) to make the payment in time as per the payment plan but they failed to do so.  The receipt of legal notice has also been denied.  Pleading that there is no deficiency in service on its part prayer for dismissal of the complaint has been made.

4.                           None appeared on behalf of opposite party No.2 despite due service, hence it was proceeded against exparte.

5.                           On 12.11.2012, when the case was fixed for arguments, none appeared for opposite party No.1.  Therefore, we proceeded to dispose of this complaint on merits under Rule 4 (8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Act (as amended upto date) even in the absence of opposite party No.1. 

6.                           We have heard the learned counsel for the complainants and have gone through the documents on record.

7.                           It has been argued by the ld. Counsel for the complainants that they paid the booking amount of Rs.6,50,000/- vide cheque dated 14.6.2006 in the pre launch scheme of opposite party No.1 for its project ‘Unitech Habitat at Greater Noida’.  According to the ld. Counsel, the scheme was launched in July 2007 and the complainants were allotted the apartment in question vide allotment letter dated 31.7.2007.  However, as per the allotment letter, the size of the apartment was 2096 sq. ft. as against the projected size of between 1400 and 1900 sq. ft. which overshot their budget.  Accordingly, the complainants did not accept the allotment letter/contract and returned the same to opposite party No.1 and requested for refund of the booking amount. 

8.                           On the other hand, the stand of opposite party No.1 in its written reply is that the complainants are defaulters.  According to the opposite party it sent various reminders (R-2 Colly.) to the complainants for the said purpose but they failed to make the payment in time as per the payment plan.  However, the opposite party has failed to place on record any document to prove the mode of despatch of the said reminders (R-2 Colly.).   Even a copy of the payment plan has also not been attached.  If the complainants defaulted in making the payment as per payment plan, then the opposite party should have taken prompt action, but it failed to do so.  On the contrary, the opposite party woke  up from its deep slumber on 1.12.2010, after remaining silent for a period of more than three years, and started issuing one reminder after the other, which are though not admitted to have been received by the complainants.  Even otherwise, the reminders were issued intervening the period from 1^st December 2010 to 17^th October, 2011 whereas the stand of the complainants is that immediately upon receipt of the allotment letter dated 31.7.2007, they requested for refund of the booking amount as the size of the apartment was not as projected at the pre launch time.  Once the complainants requested for refund immediately after the receipt of the allotment letter dated 31.7.2007, the question of making further payments, as per reminders (R-2 Colly.), does not arise at all. 

9.                           The act of opposite party No.1 in not refunding the booking amount to the complainants, therefore, amounts to deficiency in service and the present complaint needs to be allowed.

10.                       In view of the above discussion, the present complaint is allowed and opposite party No.1 is directed as under :-

(i)                to refund the booking amount of Rs.6,50,000/- alongwith interest @ 9% per annum w.e.f. 1.9.2007 (i.e. one month after the issuance of the allotment letter dated 31.7.2007).

(ii)             to pay compensation of Rs.50,000/-.

11.                       This order be complied with by opposite party No.1, within 45 days from the date of receipt of its certified copy, failing which the aforesaid amounts shall carry interest @18% per annum from 1.9.2007 till actual payment to the complainants.

12.                       As the complainants in the complaint have neither alleged any deficiency in service on the part of opposite party No.2 nor have prayed for any relief qua it, therefore, the complaint qua opposite party No.2 is dismissed with no order as to costs.

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

Announced

20.11.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER