Chandigarh

StateCommission

CC/862/2017

Anurag Thakur - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

Sanjeev Sharma, Adv.

25 Jun 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	862 of 2017
Date of Institution	:	22.12.2017
Date of Decision	:	25.06.2018

 

1. Anurag Thakur son of Sh.Sher Singh Thakur.
2. Pallavi Rana wife of Sh.Anurag Thakur, Both presently residing at DUBAI, UAE and Permanent resident of Near Girls Senior Secondary School, Ghumarwin, District Bilsapur, Himachal Pradesh through their special power of attorney Sh.Sher Singh Thakur son of Sh.Krishnu Ram Thakur resident of VPO-DHAR TATOH, Tehsil Sadar, District Bilaspur, Himachal Pradesh.

 

…… Complainants

V e r s u s

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

2^nd Address: M/s Unitech Limited, through Director Ajay Chandra, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.

2. Sanjay Chandra, Director of M/s Unitech Limited, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
3. Alice Developers Private Limited, through its Director, having Registered Office at 6,   Community Centre,  Saket, New Delhi-110017.
4. Sanjeev Hingorani, Director of M/s Alice Developers Private Limited, having Registered Office at 6, Community Centre, Saket, New Delhi-110017.
5. Sh.Satbir Singh Yadav, Director of M/s Alice Developers Private Limited, having Registered Office at 6, Community Centre,  Saket, New Delhi-110017.

 …..Opposite parties

Argued by:-      Sh.Sanjeev Sharma, Advocate for the        complainants.

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

Opposite party No.2 exparte.

Ms.Kshitija Mittal, Advocate for opposite parties no.3 to 5.

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

Complaint case No.	:	63 of 2018
Date of Institution	:	12.02.2018
Date of Decision	:	25.06.2018

 

Varun Vasudeva S/o Prem Kumar Vasudeva resident of House No.908, Sector 4, Panchkula (Haryana).

Now at present Address VPO Nasrala, Hoshiarpur, Punjab 146022.

 

…… Complainant

 

V e r s u s

 

1. M/s Unitech Limited, Registered Office at 6, Community Centre, Saket, New Delhi, through its Directors Sh.Ajay Chandra, Sh.Ramesh Chandra and Sh.Sanjay Chandra.
2. M/s Unitech Limited, SCO No.189-90-91, Sector 17-C, Chandigarh, through its Directors Sh.Ajay Chandra, Sh.Ramesh Chandra and Sh.Sanjay Chandra.
3. Alice Developers Private Limited, Registered Office at Basement 6,  Community Centre, Saket, New Delhi, through its Director Sanjeev Hingorani.
4. HDFC Ltd., SCO 153-155, Sector 8-C, Madhya Marg, Near Sindhi Sweets, Chandigarh, through its Branch Manager.

 …..Opposite parties

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

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

Ms.Kshitija Mittal, Advocate for opposite party no.3.

Ms.Anjali Moudgil, Advocate for opposite party no.4

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

Complaints under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         MR.DEV RAJ, PRESIDING MEMBER.

                        MRS.PADMA PANDEY, MEMBER

 

PER MR.DEV RAJ, PRESIDING MEMBER

                By this order, we propose to dispose of the aforesaid two consumer complaints. Arguments were heard in common, in the said cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both the complaints, the complainants are the original allottees and have sought refund of the amount paid towards their respective units, alongwith interest, compensation etc. At the time of arguments, on 14.06.2018, it was agreed between the contesting parties, that, in view of above, both the complaints can be disposed of, by passing a consolidated order.

                Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.862 of 2017 titled as Anurag Thakur and another Vs. Unitech Limited and ors. It is case of the complainants that despite the fact that they had paid Rs.42,80,083/-, they were not delivered possession of apartment bearing no.B1-04-0403 (3 Bedroom), Block B1, measuring 1485 square feet, purchased by them, from the opposite parties, in their project namely, ‘Gardens’, Uniworld City, Sector 97, Mohali, Punjab (in short the unit), for want of construction, basic amenities and necessary approvals/sanctions, whereas, vide Clause 4 a (i) of the Agreement dated 16.04.2013, Annexure C-3, executed between the parties, they (opposite parties), promised to deliver the same by 15.10.2015 i.e. within a period of 30 months, from the date of signing the same (Agreement). It was stated that total cost of the said unit was fixed at Rs.50,66,286/-, which included external development charges to the tune of Rs.66,825/-, preferential location charges to the tune of Rs.1,48,500/-, and Rs.2,25,000/- towards one car parking  It was specifically stated that number of visits were made by the complainants, at the project site, as well as office of the opposite parties, to know, as to when possession of the unit, in question, will be delivered to them, after completing the construction and basic amenities, but they kept on giving bald assurances. It was further stated that, as on today, there is no likelihood of completion of construction of the unit, in question, including the basic amenities, as such, the question of delivering possession thereof, in the near future did not at all arise. It was further stated that the opposite parties are also not in possession of necessary permissions/sanctions, as far as the present project is concerned. Request made vide email dated 30.07.2017 Annexure C-6, to refund the amount paid alongwith interest was also not acceded to, by the opposite parties. It was further stated that hopes of the complainants to have their own house, have been shattered. It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency in providing service and adoption of unfair trade practice. Hence this complaint alongwith connected complaint, has been filed by the complainants, seeking refund of the amount paid towards their respective units, alongwith interest, compensation etc.

2.         It is necessary to mention here that earlier, consumer complaint bearing no.598 of 2017 had been filed by the complainants, in respect of the unit, in question, which was got dismissed as withdrawn, vide order dated 05.12.2017, with liberty to file afresh one, after giving better particulars. Hence this complaint.
3.         Notice in this complaint was issued to the opposite parties on 07.02.2018, for 13.03.2018. Initially, Mrs.Vertika H.Singh, Advocate, put in appearance on behalf of opposite parties no.1 and 2, however, later on she gave a statement on 15.05.2018 that she is not appearing on behalf of opposite party no.2. On the said date, she filed written reply and evidence on behalf of opposite party no.1 only. Accordingly, when this Commission felt that there is an attempt to delay the proceedings and at the same time, none put in appearance, on behalf of opposite party no.2, it was proceeded against exparte, vide order dated 15.05.2018.
4.         On the other hand, Ms.Kshitija Mittal, Advocate put in appearance, on behalf of opposite parties no.3 to 5 and filed written reply and evidence on their behalf.
5.          In the written statement, filed by opposite party no.1, factual matrix of the case was not seriously disputed. However, an attempt has been made to wash of its hands, by stating that as per Developer’s Agreement executed between opposite parties no.1 and 3 to 5, they (opposite parties no.3 to 5) were to construct the units and hand over possession thereof, to the purchasers including the complainants. It was further stated that as opposite parties no.3 to 5 have failed to do so, no liability can be imposed upon opposite party no.1. Territorial jurisdiction of this Commission was challenged by stating that Buyer’s Agreement was signed at New Delhi; unit in question is located at Mohali; and also all the payments which were received at Chandigarh office, demands thereof were raised by Gurgaon Office of the opposite parties and receipts thereof had also been released from the said office. Pecuniary jurisdiction of this Commission was also challenged. It was further stated that the complainants being investors, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was further stated that the complainants owned number of properties. It was further stated that the complainants have never dealt with, directly with opposite party no.2, who is the Director of the Company. In other words, it has been tried to say that he has wrongly been impleaded as party to the complaint, in his personal capacity.
6.         On merits, it was admitted that the complainants had purchased the residential unit, in question, in the said project. 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 30 months, from the date of execution of the same (Agreement). It was further stated that the said period was extendable and until such time, the sale deed is executed, the builder was to remain owner of the property, in question. Fact qua price of the unit, as mentioned in the complaint was not controverted. It was further stated that Chandigarh Office of opposite party no.1 was providing various facilities to the purchasers, including the complainants, on behalf of opposite parties no.3 to 5. It was fairly admitted that application form, in respect of the unit, in question, was accepted by Chandigarh Office of opposite party no.1 and allotment letter, was also issued by the said office. Further, while admitting that amount was collected from the complainants, by Chandigarh Office of opposite party no.1, it was stated that the same was deposited in the designated account of opposite parties no.3 to 5. It was further stated that opposite parties no.3 to 5 were authorized to use Unitech Trade Mark and Corporate Logo, of opposite party no.1, for various purposes, such as promotional, marketing, advertisements etc. It was further stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was further stated that infact the complainants should have filed recovery suit, to recover the amount paid towards the said unit. It was further stated that delay in construction of unit(s) in the said project occurred on account of force majeure circumstances, for which the developer was entitled to reasonable extension of time for delivery of possession of the unit. It was further stated that in terms of Clause 2 (e) of the Agreement, in case, the buyer cancels the allotment, and/or seeks refund of the amount deposited, the developer was at liberty to forfeit the booking/earnest amount, out of the deposited amount, as the case may be. It was further stated that since they were opposite parties no.3 to 5, which were 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 and had a very limited role. It was further stated that all necessary approvals/sanctions had been obtained from the Competent Authorities, as far as the project, in question, is concerned. It was further stated that, delay, if any, took place, is solely attributable to the Punjab State Power Corporation Limited (PSPCL) and Greater Mohali Area Development Authority (GMADA), as it  took a long time for granting approval to provide electricity to the project. It was further stated that the complaint was bad for non-joinder of necessary parties i.e. PSPCL and GMADA. It was further stated that all the basic amenities including the construction work of the unit are complete and opposite party no.1 has already applied for completion certificate vide letter dated 03.02.2016. It was further stated that the complaint filed is beyond limitation. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
7.         Opposite parties no.3 to 5 took almost the same pleas, as have been taken by opposite party no.1, in its written reply. In addition to that, it was stated that general power of attorney holder of the complainants, is not a competent person, through whom this complaint has been filed. It was further stated that opposite parties no.3 to 5 are making honest efforts to deliver possession of the unit, to the complainants, at the earliest. It was further stated that since the complainants have not paid the remaining sale consideration, as such, they were not entitled to any relief. It is averred that for any delay, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainants, in case, they are eligible for that. It was further stated that as per terms and conditions agreed to between the parties, only the Courts at Mohali, shall have jurisdiction to entertain and decide the present complaint, as such jurisdiction of this Commission is barred. It was further stated that proper court fee has not been deposited by the complainants. The remaining averments were denied, being wrong.
8.         Rejoinder was filed only in connected consumer complaint bearing no.63 of 2018, wherein, all the averments contained in the complaint were reiterated by the complainant and those against him, alleged by the contesting opposite parties were repudiated.
9.         The contesting parties led evidence in support of their cases and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
10.         The first question, that falls for consideration, is, as to whether, the complainants are speculators, and that 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, as alleged by opposite parties no.1 and 3 to 5. 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.2 of the complaint, supported by the affidavit of Sh.Sher Singh Thakur, Power of Attorney Holder of the complainants, it has been specifically stated that the unit, in question was purchased by the complainants, for their residential purposes. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 and 3 to 5, 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.  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 no.1 and 3 to 5 in their written reply, therefore, being devoid of merit, is rejected. 
11.         The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act, a consumer complaint can 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 them. In the instant case,  it is evident from contents of the Buyer’s Agreement, that it has specifically been stated that the Company i.e. Unitech is a Public Limited, having its Marketing Office at Unitech Limited, SCO 189-90-91, Sector 17C, Chandigarh. It has also come on record that at one point of time, account statement/customer ledger Annexure C-5 pertaining to the unit of the complainants was issued by Marketing Office of opposite parties no.1 and 2, at Chandigarh, as it bears the address of Chandigarh Office of the Company (Unitech Limited). Not only as above, it has been candidly admitted by opposite party no.1, in number of paragraphs of its written reply that it had received payments towards price of the said unit, from the complainants; application form in respect of sale of the said unit was also accepted by it at Chandigarh Office; and that allotment letter in respect of the said unit was also issued by opposite party no.1 at Chandigarh. If that is so, it can safely be said that the Marketing Office of the Company (Unitech) at Chandigarh, was actively playing a significant role, in respect of the transaction in question, meaning thereby that it was actually carrying on business for gains, from Chandigarh. Under these circumstances, it can safely be said that this Commission has got territorial jurisdiction to entertain and decide this complaint, in view of law laid down by the Hon’ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839, in which it was held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. Similar findings were given by the National Commission, in a case titled as Parsvnath Developers and anr. Vs. Som Nath Sharma and 2 ors., First Appeal No.1613 of 2016, decided on 21.03.2017. Relevant contents of the said order read thus:-

“Regarding the question of territorial jurisdiction, the some part of cause of action accrues in Delhi as the agreement was signed at New Delhi.  The  payment  was received at Panchkula in the office of OPs 1 to 3.  Similar issue was decided by this Commission in the case of Ravinder Kumar Bajaj vs. Parsvnath Developers Pvt. Ltd. & Ors., first appeal No. 515 of 2016 decided on 23.08.2016 qua same very builder.  It was held that “officers of opposite parties no. 1 to 3 sitting in Branch Office at Chandigarh were actively participating in marketing and propagating the project, in question.  They were dealing with the complainants throughout, by receiving their letters qua progress at the spot and also accepted payment made through cheques.  In view of above, objection raised in this regard, stands rejected.”

               

                No doubt, opposite parties no. 3 to 5 took an objection that since as per Clause 12.b of the Agreement, it was mutually agreed to between the parties that the Courts at Mohali, shall have Jurisdiction, to entertain and adjudicate the dispute(s) in respect of the unit, in question,  and, as such, the jurisdiction of this Commission was barred. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to them (complainants), to file the complaint. In view of above, objection taken by opposite parties no.1 and 3 to 5, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

12.         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 as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

13.         In the present case, total value of the unit, in question, i.e. Rs.50,66,286/-, plus compensation claimed by way of interest @14% p.a. on the deposited amount of Rs.42,80,083/-, and also Rs.2 lacs, for mental agony and physical harassment, if taken into consideration, in no way, exceeds 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.
14.         It is not in dispute that the opposite parties have failed to deliver possession of the unit, in question, within the stipulated period or even as on today. 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 reliefs or not. It is not in dispute that the complainants purchased the unit, in question, vide Agreement dated 16.04.2013. Constructed unit was sold in favour of the complainants, for an amount of Rs.50,66,286/-, which includes basic sale price, external development charges, preferential location charges etc. In all, the complainants have paid an amount of Rs.42,80,083/-, towards price of the said unit. As per condition no. 4.a.(i) of the Agreement, possession of the fully constructed unit, in a developed project, was to be delivered to the complainant within a period of 30 months, from the date of execution of the same (Agreement), subject to force majeure conditions i.e. on or before 15.10.2015. The due date of offer of possession of the unit i.e. 15.10.2015 already stood expired. Now it is June 2018.

                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, in the written statement filed, it has been candidly stated by opposite parties no. 3 to 5, that they are making best efforts to complete construction and deliver possession of the unit to the complainants. However, exact date/period has still not been given. Even at the time of arguments, Counsel for opposite parties no.1 and 3 to 5 failed to give any positive date/time, as to when, possession of the constructed unit will be given, in near future. It was said that possession of the unit, will be delivered and that they have applied for completion certificate, which is awaited. 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. As stated above, even at the time of arguments, no commitment was made to deliver possession of the unit, in near future.

                Furthermore, not even a single convincing document has been placed on record, by opposite parties no.1 and 3 to 5 to prove that the unit, in question, can be made habitable or that the development at the project will be completed, in near future. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, or it is about to complete, is on the builder/opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by opposite parties no.1 and 3 to 5, in respect of the unit, in question, to prove that the construction is about to complete. In case, all the development activities are being undertaken and construction of the units is going to be completed shortly, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify the same, but they failed to do so. Mere placing on record an application dated 03.02.2016, allegedly sent to the Competent Authorities, seeking partial completion certificate in respect of the project, in question, is of no help to the opposite parties.

                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 of the unit(s) by the stipulated date, the purchaser is not bound to accept the offer, if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble 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.”

 

                Not only as above, 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.

 

                Furthermore, 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 Hon’ble 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. 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.

                No doubt, a plea was also taken by opposite parties no.1 and 3 to 5 that delay aforesaid, is attributable to the PSPCL and GMADA, as they took a long time to grant approval for supply of electricity to the project. It may be stated here that mere bald plea taken by opposite parties no.1 and 3 to 5 has no legs to stand. To substantiate their stand, parties no.1 and 3 to 5 were required to place on record cogent and convincing evidence on record, to convince this Commission that despite the fact that every step was taken at their end, but the said Authorities delayed the matter, unnecessarily, leading to delay in completing the project. Had this been actually the case of the opposite parties, they would have definitely taken up the matter with the Competent Authorities, by sending letters followed by reminders, to grant timely approval with regard to provision of electricity to the project. However, no such documents are on record. As such, it can very well be said that such a plea has been taken by opposite parties no.1 and 3 to 5, just with a view to evade their liability. Under these circumstances, no help, therefore, can be drawn by opposite parties no.1 and 3 to 5, from Clause 8 (b) of the Agreement, relating to force majeure circumstances, as far as the present case is concerned. The complainants are certainly entitled to get refund of the amount actually deposited by them, towards price of the said unit, as held above.

                In view of above, it is also held that since there was no privity of contract with PSPCL/GMADA and the complainants, as such, the  plea taken by opposite parties no.1 and 3 to 5 that the said Authorities were required to be impleaded as necessary parties to this complaint, being devoid of merit, stands rejected.

15.         An objection was also raised by opposite parties no.1 and 3 to 5 that the dispute being related to contractual nature, 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 30 months, from the date of execution of the same (Agreement) i.e. latest by 15.10.2015 alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. By not doing so, the opposite parties have breached the terms and conditions of the said agreement, leading to deficiency in providing service and adoption of unfair trade practice. 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, objection taken by opposite parties no.1 and 3 to 5, in this regard, being devoid of merit, must fail, and the same stands rejected.

                Such type of objection taken by opposite parties no.1 and 3 to 5 is also bereft of merit, in view of latest judgment passed by the Hon’ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016,  decided on 3^rd March, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

“We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief.  The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society.  Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder.”

 

16.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants. It is an admitted fact that an amount of Rs.42,80,083/-, was paid by the complainants, against price of the said unit. Despite making payment of that amount, the complainants are still empty handed.  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 (@18% per annum, compounded quarterly) 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). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest. It is pertinent to add here that this Commission, under similar circumstances, in the complaints filed by similar located allottees in respect of the project in question, have been granting interest @15% compounded quarterly, (less than the rate of interest charged by the opposite parties, in case of delayed payment i.e. 18% p.a. compounded quarterly, as per Article 2.c. of the Agreement), from the date, when the amount was actually deposited, till realization, yet, in the present complaint, the complainants have sought refund of amount paid, alongwith interest @14% p.a., as such, this Commission is bound to grant interest, at such rate only.
17.         As far as the plea taken by opposite parties no.1 and 3 to 5  regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the opposite parties, that they were ready with possession of the unit, to be delivered to the complainants, by the stipulated date or even by the date when this complaint was filed but the 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 law. In this view of the matter, the plea taken by opposite parties no.1 and 3 to 5, in this regard, has no legs to stand and is accordingly rejected.

                Under above circumstances, plea taken by opposite parties no.3 to 5, to the effect that in case of delay in handing over possession of the unit, the complainants were entitled to delayed compensation @Rs.5/- per square feet of the area of the unit, for the period of delay, also stands rejected. Had the complainants sought directions with regard to possession of the unit, in question, the matter would have been different, and in those circumstances, this Commission would have passed necessary directions, in that regard, as per prevailing law.

18.         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, as stated above also, it is an admitted case that offer of possession of the unit, in question, could not be made till date for want of completion of construction and basic amenities, 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 parties no.1 and 3 to 5, in this regard, being devoid of merit, must fail, and the same stands rejected.
19.         As far as the liability of opposite party no.1, including opposite party no.2, is concerned, it may be stated here that once it has been proved on record that the Company i.e. Unitech Limited was a necessary party to the Agreement; it also marketed the project, in question; documents such as allotment letter, application form etc. was also issued by the said Company (Unitech); and it had also admittedly received substantial amount from the complainants towards the said unit, as such, opposite parties no.1 and 2, are equally liable alongwith opposite parties no.3 to 5/Alice Developers Private Limited, to refund the amount paid by them (complainants). The objection raised by opposite party no.1 to the effect that it being facilitator or confirming party and was having a limited role, is not liable to refund the amount paid by the complainants, alongwith opposite parties no.3 to 5, being devoid of merit, stands rejected.
20.         An objection was also taken by Counsel for opposite party no.1 that opposite party no.2 being Managing Director/Director was wrongly impleaded as a necessary party, in his personal capacity. We do not agree with the objection raised.  A similar question fell for determination before the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017, wherein, it was held as under:-

“From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company.  Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company.  By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint.  It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties.  The impugned order passed by the State Commission is, therefore, upheld and the appeal is ordered to be dismissed with no order as to costs.”

 

                In view of above, objection raised by Counsel for opposite party no.1 stands rejected.

21.         As far as the objection taken by opposite parties no.3 to 5, to the effect that power of attorney holder of the complainants namely Sh.Sher Singh Thakur, was not competent to file this complaint and depose affidavit, it may be stated here that he (Sh.Sher Singh Thakur) is the father of complainant no.1, as is evident from the contents of the Special Power of Attorney, Annexure CA. In the affidavit filed by him alongwith the complaint, it has been, in a very candid manner, sworn by him that he is well conversant with the facts of the present complaint and is competent to depose the said affidavit. It is settled law that a power of attorney holder can depose evidence, by way of affidavit, on behalf of the complainant, in case, it is brought to the knowledge of the Court that he has full knowledge of the facts of the case concerned. In A.C. Narayanan Vs. State of Maharashtra & Anr., Criminal Appeal No.70 of 2007, decided on 13.09.2013, it was held by the Hon’ble Supreme Court of India, that the Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint, if he is possessed with due knowledge regarding the transaction, in dispute. Relevant part of the said order reads thus:-

“The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions”

 

Since, in the present case also, as stated above, the power of attorney holder namely Sh.Sher Singh Thakur has sworn by way of affidavit before this Commission that he is well conversant with the facts of the case, as such, at this stage, taking an objection with regard to GPA of the complainants, is nothing, but a tool to defeat their (complainants) genuine claim. Even otherwise, the Act, 1986, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. Kishan Rao  Vs, Nikhil Super Speciality Hospital and another, Civil Appeal NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on March 8, 2010. Relevant contents of the said order reads thus:-

“The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice”

                In view of above, objection taken by opposite parties no.3 to 5, in this regard, stands rejected.

22.         At the time of arguments, plea was taken by opposite parties no.1 and 3 to 5, that in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitrator, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. In view of above, the plea raised by opposite parties no.1 and 3 to 5, in this regard, being devoid of merit is rejected.
23.         Now coming to the objection taken by opposite parties no.3 to 5 with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.4,000/- being the claim of the complainants above Rs.50 lacs and below Rs.1 crore, has been paid by them. Objection taken in this regard, as such, being frivolous, is rejected.
24.         In connected complaint bearing no.63 of 2018, an objection was also taken by opposite party no.3/Alice Developers Pvt. Limited, that since the complainant therein, had earlier filed consumer complaint bearing no.630 of 2017, before this Commission, in respect of unit bearing no.B-02-0159, in the project of the opposite parties, but the same was got dismissed as withdrawn, as such, the present complaint (63 of 2018) is not maintainable, as the principles of res judicata will come into force.  It may be stated here that we have gone through the record of earlier complaint filed (630 of 2017) and found that the said complaint filed before this Commission, was got dismissed as withdrawn, by the complainant, with liberty to file a fresh one, with better particulars. Had this Commission, dismissed the complaint, referred to above, on merits and had no liberty been granted to the complainant, to file fresh complaint on the same cause of action, the matter would have been different. A consumer has liberty to withdraw the complaint, at any stage and file it again, if it is found that the same has not been filed before the appropriate fora or that he needs to file it again, with better particulars. In this view of the matter, objection taken by opposite party no.3, in this regard, being devoid of merit, must fail and the same stands rejected.
25.         In the connected complaint bearing no.63 of 2018, an objection was also taken by opposite parties no.1, 2 and 3 that the complainant is not a consumer, as he is the owner of multiple properties. It was stated that the complainant has purchased another property in the project of the opposite parties, against which, a consumer complaint is pending before the State Consumer Commission, Punjab, which fact has been concealed by him, as such, it can safely be said that he is a speculator. It may be stated here that 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.  Separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in one city, may also purchase a house in other city, for the purpose of staying in that house during short visits to that city.  At the same time, a person may buy two or three houses, in a project, if the requirement of his family cannot be met in one house, and also with a view that they can live together, in the vicinity of each other, while maintaining individual privacy.  Under these circumstances, it would not be appropriate to say that the said transaction would be a commercial one. 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.”

 

                As far as objection regarding concealment of fact that one consumer complaint is pending before the Punjab State Consumer Commission, in respect of another flat purchased by the complainant in the project of the opposite parties is concerned, it may be stated here that the complainant has clarified his stand, by way of filing rejoinder that the said flat was also  purchased by him, to fulfill the growing needs of his family, especially for settlement of his parents, as his father  is under medical treatment at Chandigarh.  Had the complainant took a plea in consumer complaint no.63 of 2018 that he did not own any other flat, except flat bearing no.B-02-0159, only in that event, it could have been said that there is concealment on his part. Once, it is settled law that mere purchasing of two to three residential properties, would not straightway mean that the same has been purchased with a view to generate profits out of the same, by selling the same, in open market, therefore, such objection taken by the opposite parties, has no significant value in the eyes of law.

26.         No other point, was urged, by the contesting parties, in the cases, referred to above.
27.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-

 

Consumer complaint no. 862 of 2017. Opposite parties no.1 to 5, are jointly and severally directed as under:-

1.       To refund, to the complainants, the amount of Rs.42,80,083/-, alongwith interest @14% p.a. (as prayed) from the respective dates of deposits onwards.
2.       To pay compensation, in the sum of Rs.1,25,000/-, 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.33,000/- 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 further carry penal interest @16% p.a., instead of 14%, from the date of default and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.
5.       However, it is made clear that, if the complainants in this case have availed loan facility from any banking or financial institution, for making payment of installments towards the unit, in question, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

 

Consumer complaint no.63 of 2018. Opposite parties no.1 to 3, are jointly and severally directed as under:-

1.       To refund, to the complainant, the amount of Rs.26,17,935/-, alongwith interest @12% p.a. (as prayed) from the respective dates of deposits onwards.
2.       To pay compensation, in the sum of Rs.1,00,000/-, 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.22,000/- to the  complainant.
4.       Complaint against opposite party no.4, is dismissed with no order as to cost.
5.       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 further carry penal interest @14% p.a., instead of 12%, from the date of default and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing this complaint, till realization.
6.       It is on record that in this case, the complainant had availed housing loan from opposite party no.4/HDFC Limited, for making payment towards the unit purchased by him, in the project of opposite parties no.1 to 3, as is evident from Annexure OP-4/3 colly. (at page 26 of the written reply filed by opposite party no.4) and total outstanding as on 10.03.2018 was shown as Rs.13,89,457/-. Under these circumstances, it is held that opposite party no.4/HDFC Limited shall have the first charge of the amount payable, to the aforesaid extent plus interest which may accrue, till the amount is refunded.

28.         Certified copy of this order be placed on the connected complaint files, referred to above.
29.         Certified copies of this order be sent to the parties, free of charge.
30.         The file be consigned to Record Room, after completion.

Pronounced.

25.06.2018

 

Sd/-

(DEV RAJ)

PRESIDING MEMBER

 

 

Sd/-

 (PADMA PANDEY)

 MEMBER

Rg.