Chandigarh

StateCommission

CC/27/2018

Jagwant Singh Gill - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

Pardeep Kumar, Adv.

12 Jun 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	27 of 2018
Date of Institution	:	16.01.2018
Date of Decision	:	12.06.2018

 

Jagwant Singh Gill son of Sh.Jagir Singh, resident of 423, Taracove Estate Drive NE Calgary, Alberta, Canada, through power of attorney Amandeep Singh son of Gurjant Singh resident of 8054, Sunny Enclave, Sector 125, Mohali, Punjab.

…… Complainant

V e r s u s

1. Unitech Limited, SCO 189-190-191, Sector 17-C, Chandigarh
2. Unitech Limited, Real Estate Division (Marketing), Ground Floor, Signature Towers, South City-1, N.H.-8, Gurgaon, Haryana, through its Manager.
3. Sanjay Chandra, Managing Director, Unitech Limited, Office 6, Community Centre, Saket, New Delhi-110017.
4. Alice Developers Private Limited, Registered Office at Basement 6, Community Centre, Saket, New Delhi-110017

…..Opposite parties

 

Argued by:-      Sh.Pardeep Kumar, Advocate for the         complainant.

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

Ms.Kshitija Mittal, Advocate for opposite party no.4.

Opposite party no.3 exparte.

 

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

Complaint case No.	:	793 of 2017
Date of Institution	:	15.11.2017
Date of Decision	:	12.06.2018

 

1. Vinod Parkash Mahajan s/o Sh.Ajudhya Parkash Mahajan.
2. Shashi Mahajan wife of Dr.V.P. Mahajan.

Both residents of Mahajan Medical and Heart Care Centre, Sham Nagar, Dharamshala-176215 (Himachal Pradesh).

…… Complainants

V e r s u s

1. Unitech Limited, through its Managing Director having its
   1. Marketing Office at SCO 189-90-91, Sector 17C, Chandigarh.
   2. Registered Office at 6, Community Centre, Saket, New Delhi-110017.
2. Managing Director, Unitech Limited, having its

1. Marketing Office at SCO 189-90-91, Sector 17C, Chandigarh.
2. Registered Office at 6, Community Centre, Saket, New Delhi-110017.

3. Alice Developers Private Limited, having its Registered Office at Basement 6, Community Centre, Saket, New Delhi-110017, through its Managing Director.

….Opposite parties.

 

Argued by:-      Ms.Vandana Rana, Advocate for the complainants.

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

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

Opposite party no.2 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 two 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. At the time of arguments, on 23.05.2018, it was agreed between the contesting parties, that, in view of above, both complaints can be disposed of, by passing a consolidated order. In both the complaints, complainants have pressed their prayer regarding refund of the amount deposited with the opposite parties/builder, towards price of their respective units, alongwith interest, compensation etc.

2.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no.27 of 2018, titled as Jagwant Singh Gill Vs. Unitech Limited and ors. The complainant who is an NRI and residing in Canada, came across an advertisement, published by the opposite parties, regarding launching of their residential project, under the name and style ‘UNIHOMES, situated in Mega Township, Uniworld City, Sector 107, Mohali, Punjab. Allured by the said advertisement, he decided to purchase a flat in the said project, and moved application dated 25.03.2010, as a result whereof, he was allotted flat no.A-02-0018 (3 bedroom), measuring 1077 square feet, (in short the unit) in the said project, vide allotment letter Annexure C-2 of the even date (25.03.2010).  Total sale consideration of the said unit was fixed at Rs.25,92,854/-, which included Rs.23,31,227/- towards basic price; Rs.1,11,627/- towards external development charges (EDC) and Rs.1,50,000/- towards preferential location charges (PLC). The complainant opted for construction linked payment plan. Buyer’s Agreement was executed between the parties on 19.04.2010.
3.         As per Clause 4 (a) (i) of the Agreement, after construction, possession of the unit was agreed to be given within 36 months, from the date of signing of the same i.e. on or before 18.04.2013. As per condition no.4.b. of the Agreement, it was incumbent upon the opposite parties, to give notice to the complainant, in case of delay in handing over possession of the unit, beyond the period of 36 months, subject to force majeure circumstances.  Further, as per condition no.4.c. in the Agreement penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the unit was payable, by  the opposite parties, to the complainant.
4.         It was stated that since as per the payment plan, first three payments were to be made before commencement of construction work/demarcation, accordingly, the complainant paid an amount of Rs.5,02,424/- to the opposite parties. It was averred that next payment was to be made at the time of completion of foundation work of the unit, however, construction work in the project never started. It was pleaded that despite making numerous requests to the opposite parties to complete construction and deliver possession of the unit, needful was not done. When grievance of the complainant was not redressed, left with no alternative he served notice dated 18.11.2016 Annexure C-8, requesting the opposite parties, to refund the amount paid but to of no avail.
5.         Earlier this complaint was filed before the District Forum-II, which was got dismissed as withdrawn vide order dated 16.08.2017, with liberty to file the same before this Commission. Thereafter, the complainant had filed a complaint before this Commission, which was also got dismissed as withdrawn on 22.11.2017, with liberty to file it again, with better particulars. Hence this complaint has been filed by the complainant, seeking directions to the opposite parties to refund the amount paid, alongwith interest, compensation and litigation expenses.  
6.         Notice was served upon the opposite parties. Initially, Mrs.Vertika H.Singh, Advocate, put in appearance and filed her vakalatnama on behalf of opposite parties no.1 and 2 and memorandum of appearance, on behalf of opposite party no.3. However, later on, she filed reply and evidence, only on behalf of opposite parties no.1 and 2. Even vakalatnama was also not filed on behalf of opposite party no.3. When till 03.05.2018, neither vakalatnama, nor reply and evidence were filed on behalf of opposite party no.3 and also the above-named Advocate, put her appearance and filed reply and evidence only on behalf opposite parties no.1 and 2, this Commission felt that its time was being unnecessarily wasted, and, as such, under those circumstances it (opposite party no.3) was ordered to be proceeded against exparte.
7.         Opposite parties no.1 and 2, filed their joint written version, wherein, an attempt has been made to wash of their hands, by stating that as per Development Agreement dated 01.12.2008 opposite party no.4 was to construct the units and hand over possession thereof, to the purchasers. As opposite party no.4 has failed to do so, as such, no liability can be imposed upon opposite parties no.1 and 2, which were only to receive payments from the allottees, on behalf of opposite party no.4. 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. Unit in question is also located at Mohali. It was stated that all demands to make payment were raised by opposite party no.4, which was collected and deposited by opposite parties no.1 and 2 in a designated account of the developer i.e. opposite party no.4. It was further stated that the unit, in question, was purchased for future gain, as such, the complainant who is an NRI is an investor and would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
8.         On merits, it was admitted that the complainant had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainant towards price of the unit, are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. It was 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, in fact, the complainant should have filed a civil suit for recovery of the amount deposited.
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 complainant within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It was further stated that it was opposite party no.4, which was to construct the units and deliver possession of the same, as such, no liability can be fastened upon opposite parties no.1 and 2, as they were only the confirming parties and had a very limited role being facilitators only. It was contended that opposite parties no.1 and 2 had no liability to make refund of the amount deposited. It was further stated that vide Development Buyer Agreement dated 01.12.2008, opposite party no.4 was assigned development rights, with regard to more than 33.2438 acres of land, in which unit allotted to the complainant is situated. Opposite party no.4 was also authorized to use Unitech Trade Mark and Corporate Logo, for various purposes, such as promotional, marketing, advertisements etc. It was stated that since the complainant has not affixed proper court fee and also the power of attorney filed is not proper, as such, the complaint is liable to be dismissed, on these grounds alone. It was averred that since the complainant has sought refund of the amount paid, as such, forfeiture clause will be applicable in the present case. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
10.         Opposite party no.4, in its written statement took up almost the same objections, as have been taken by Opposite parties no.1 and 2, in their joint written statement. However, it was additionally stated that delay, if any, took place on account of force majeure circumstances, faced by opposite party no.4 and it is making best efforts to deliver possession of the unit, in question, to the complainant. It was specifically stated that the complainant and his GPA (Mr.Amandeep Singh) has been duly intimated, time and again, about progress of construction at the project site. It was averred that opposite party no.4 had obtained all approvals as far as the project, in question, is concerned and had already applied for completion certificate vide letter dated 03.02.2016. It was further averred that for any delay, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainant. It was pleaded that the complainant was defaulter in making payment of installments towards price of the said unit, and, as such, cannot seek any relief, under the Agreement. It was stated that the complainant had paid only an amount of Rs.5,02,424/- and not Rs.6,77,030/- as alleged by him, in the complaint. It was averred that since the complainant had earlier filed complaints before the Forum aforesaid and also before this Commission, on the same cause of action, as such, the present complaint filed is barred by the principles of res judicata.
11.         The contesting parties led evidence in support of their cases and raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
12.         The first question, that falls for consideration, is, as to whether, the complainant is a speculator and that he has 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, he 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, 2 and 4. It may be stated here that there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties no.1, 2 and 4, 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 complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  opposite parties no.1, 2 and 4 in their written reply, therefore, being devoid of merit, is rejected.  

                At the time of arguments also, Counsel for opposite parties no.1, 2 and 4 contended that since the complainant is NRI, as such, he would not fall within the definition of consumer. The plea taken stands rejected. It may be stated here that, no law debars NRIs, with roots in India, to purchase a residential property in India. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                In view of above, plea raised by Counsel for opposite parties 1, 2 and 4 stands rejected.

13.         The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide this complaint, or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. 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. Furthermore, it has been very candidly agreed to between the parties, by way of Article 13 of the Agreement, that “Any notice or letter of communication to be served on either of the parties by the other shall be sent by prepaid recorded delivery of registered post by fax at the address shown at the recital of the Agreement (Marketing Office)”¸ meaning thereby that the Marketing Office of the opposite parties at Chandigarh was actively playing a significant role, in respect of the transaction in question. This fact also fortifies from the candid admission made by opposite parties no.1 and 2, in number of paragraphs of their joint written reply, that they had received payment towards price of the said unit, from the complainant being facilitator. If that is so, it can safely be said that the Marketing Office of the Company at Chandigarh, at the relevant point of time, was actually carrying on business for gains, at Chandigarh. Once, it has been proved on record that Marketing office of the Company is located at Chandigarh; the project, in question, was marketed from Chandigarh;  payments were also received at that place, this Commission has 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 and also in view of Section 2 (1) (aa) and (b) of the Act.

                In view of above, objection taken by opposite parties no.1,2 and 4, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected. 

14.         An objection was also raised by opposite parties no.1, 2 and 4 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 complainant 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 18.04.2013 alongwith all basic amenities as mentioned in Article 2.a.(iii) 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, negligence 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 complainant has 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 him, as he falls, within the definition of consumer. In this view of the matter, objection taken by opposite parties no.1,2 and 4, in this regard, being devoid of merit, must fail, and the same stands rejected.

                The above objection taken by opposite parties no.1,2 and 4 is also bereft of merit, in view of 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.”

 

15.         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 complainant has sought refund of the amount paid, alongwith interest, 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 complainant, to claim above said relief or not.

                It is not in dispute that the complainant purchased the unit, in question, vide Agreement dated 19.04.2010, for total amount of Rs.25,92,854/-, which includes basic sale price, external development charges etc. The complainant has paid an amount of Rs.5,02,424/-, towards price of the said unit. It is also a proven fact that thereafter, no further demand was ever raised by the opposite parties. 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 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions i.e. on or before 18.04.2013. Before delivery of possession, as per condition no.4.b. of the Agreement, it was incumbent upon  the opposite parties, to give notice to the complainant, 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. in the Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay in delivery of possession of the flat shall be paid by  the opposite parties, to the complainant. The due date of offer of possession of the unit i.e. 18.04.2013 already stood expired. Now it is June 2018.

                Contention of Counsel for the complainant that construction at the spot has not yet started needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainant. At the time of arguments, Counsel for opposite parties no.1,2 and 4 failed to give any positive date/time, as to when, construction will be started and after completion thereof, possession of the constructed unit will be given. It is only said that opposite party no.4 is making best efforts. 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.

                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, is on the builder/the 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 the opposite parties, in respect of the flat, in question, to prove that the construction has started and it is near completion. In case, the project is near completion and the development activities are being undertaken, 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 taking a plea that an application dated 03.02.2016, had been allegedly sent to the Competent Authorities, seeking 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 by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage (in the present case, not offered) 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”.

 

                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 complainant is entitled to get refund of amount actually deposited by him. In view of above facts of the case,  the opposite parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him, as also escalation in prices.

                No doubt, a plea was also taken by opposite parties no.1,2 and 4 that delay aforesaid is attributable to the force majeure circumstances faced by them.  It may be stated here that mere bald plea taken by opposite parties no.1,2 and 4 has no legs to stand. To substantiate their stand,  the opposite parties were required to place cogent and convincing evidence on record, to convince this Commission. As such, it can very well be said that such a plea has been taken by  opposite parties no.1, 2 and 4, just with a view to evade their liability. Under these circumstances, no help, therefore, can be drawn by opposite parties no.1, 2 and 4, from Clause 8 (b) of the Agreement, relating to force majeure circumstances, as far as the present cases are concerned. The complainant is certainly entitled to get refund of the amount deposited by him, towards price of the said unit, as held above.

16.         Now coming to the objection taken by opposite parties no.1, 2 and 4 with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.2,000/- being the claim of the complainant above Rs.20 lacs and below Rs.50 lacs, has been paid by him. Objection taken in this regard, as such, being frivolous, is rejected.
17.         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.5,02,424/- was paid by the complainant, 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 (@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 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest. At the same time, it is also held that by no stretch of imagination, it can be said that any forfeiture clause is applicable to the present case. Had construction been complete and had possession of the unit been offered and had the complainant refused to take the same, on some personal ground, the matter would have been different and the findings would have been given accordingly, in that regard, as per law.
18.         Since it has been held above that the complainant is entitled to refund of the amount deposited alongwith interest, as such, the plea taken by opposite party no.4 that sufficient safeguard is provided to the complainant by way of delayed compensation and that it is ready to pay Rs.5/- per square feet, per month, of the area of the unit, in question, for the period of delay, cannot be taken into consideration. Had possession of the unit, in question, been sought by the complainant, the matter would have been different, and in those circumstances, necessary directions would have been passed, as per law.   

                At the same time, it is also held that when no further demands were raised by the opposite parties, after the complainant had already paid an amount of Rs.5,02,424/- towards price of the unit, in question, because its construction did not take place, the plea taken by opposite party no.4 that the complainant was defaulter in making payments, cannot be accepted and is accordingly rejected.

19.         As far as the liability of opposite parties no.1 and 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 aforesaid; it also marketed the project, in question; and had also received substantial amount from the complainant, towards the said unit, as such, they (opposite parties no.1 and 2) are equally liable alongwith opposite parties no.3 and 4, to refund the amount paid by him (complainant). The objection raised by  opposite parties no.1 and 2 to the effect that they being facilitators or confirming parties, are not liable to refund the amount paid by the complainant, alongwith opposite party no.4, being devoid of merit, stands rejected.
20.         As far as the objection regarding power of attorney filed by the complainant is concerned, it may be stated here that opposite party no.4, in its reply, in para no.9, has candidly submitted that the construction status of the unit, in question, had been duly intimated to the complainant and its GPA time and again. It means that it was in the knowledge of opposite party no.4 that Sh.Amandeep Singh is the valid GPA holder of the complainant, who was also apprised about the status of the project, time and again by opposite party no.4. Thus, as this stage, taking an objection with regard to GPA of the complainant, is nothing, but a tool to defeat his (complainant) 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, plea taken by opposite party no.4, in this regard,  stands rejected.

21.         Now coming to objection taken by opposite party no.4 that since, the complainant had earlier filed consumer complaints, in respect of the unit, in question, firstly before the Forum aforesaid and thereafter, before this Commission, as such, the present complaint is not maintainable, as per the principles of res judicata.  It may be stated here that we have gone through the record of the earlier complaints filed and found that the complaint filed before the Forum aforesaid, was got dismissed as withdrawn, by the complainant, may be for want of jurisdiction. However, the complaint which was earlier filed before this Commission, was got dismissed as withdrawn, with liberty to file a fresh one, with better particulars. Had the Forum or 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, 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.4, in this regard, being devoid of merit, must fail and the same stands rejected.
22.         In connected complaint bearing no.793 of 2017, pleas were taken by opposite party no.1/Unitech Limited 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; that the complaint filed is beyond limitation; and that this Commission did not vest with pecuniary jurisdiction.

                First, we will deal with an objection, raised in connected complaint bearing no.793 of 2017, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, 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 objection raised by opposite party no.1, in this regard, being devoid of merit is rejected.

23.         The next question, that falls for consideration, in connected complaint bearing no.793 of 2017, 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 by the stipulated date or even till date for want of completion 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.
24.         The next question, that falls for consideration, in connected complaint bearing no.793 of 2017, is, as to whether, this Commission vests with pecuniary jurisdiction. 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. ”

 

                In the connected case, total value of flat therein i.e. Rs.40,14,720/-, plus compensation claimed by way of interest @18% p.a. on the amount deposited to the tune of Rs.38 lacs; compensation claimed for mental agony and physical harassment alongwith other relief, if taken into consideration, it exceeds Rs.20 lacs and fell 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 in the said connected case, that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

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

 

Consumer complaint no.27 of 2018:-  The opposite parties jointly and severally are directed as under:-

 

1.       To refund the amount of Rs.5,02,424/- alongwith @15% p.a. (as prayed), from the respective dates of deposits onwards.
2.       To pay compensation, in the sum of Rs.30,000/-, 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.11,000/- to the  complainant.

 

Consumer complaint no.793 of 2017. The opposite parties are jointly and severally directed as under:-

 

1.       To refund the amount of Rs.38 lacs to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.
2.       To pay compensation, in the sum of Rs.1 (one) lac, for causing mental agony and physical harassments, to the complainant, as also escalation in prices.
3.       To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants.

     

27.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii) above in both the cases, 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) thereafter shall carry penal interest @18%, instead of 15%, in the manner ordered above, from the date of default and interest @15% p.a. simple, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of respective complaints, till realization.
28.         However, it is made clear that, if the complainant(s), 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). It is further made clear that, in case, if the complainant(s), in any of the complaints aforesaid, have purchased the respective unit(s), under subvention scheme, the amount so ordered to be refunded, shall be paid by opposite parties (Unitech Limited and Alice Developers Pvt. Ltd.), after deducting/adjusting the amount paid by them, towards Pre-EMI interest, to the Bank concerned.
29.         Certified copy of this order be placed in connected complaint file, referred to above.
30.         Certified Copies of this order be sent to the parties, free of charge.
31.         The file be consigned to Record Room, after completion.

Pronounced.

12.06.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

 

 (PADMA PANDEY)

        MEMBER

Rg.