STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.      Mr. Balvinder Singh Guraya, S/o Narinder Singh Guraya, R/o 208, Sector 9C, Chandigarh.

2.      Mrs. Parveen Guraya, D/o Mr.Shamsher Singh Bedi, R/o 208, Sector 9C, Chandigarh.

……Complainants

V e r s u s

1.     Unitech Ltd., Registered Office, 6, Community Centre, Saket, New Delhi-110 017, through its Managing Director:

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

2.     J.D. Realtors Ltd., SCO 317-318, Level-1, Sector 35-B, Chandigarh-160 022, through its Director.

              ....Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:    JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

                   SH.JAGROOP SINGH MAHAL, MEMBER.

Argued by:  Complainant No.1 in person.

                   Ms.Ritam Aggarwal, Advocate for Opposite Party No.1

                   Opposite Party No.2, already exparte.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.           The facts, in brief, are that Opposite Party No.1(Unitech Limited), initiated a project, in the name of Unitech Habitat, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, for which it (Opposite Party No.1), vide Annexure C-1, appointed its authorized agent (Opposite Party No.2 i.e. J.D. Realtors Limited), for sale and marketing of the said project in North Region, at Chandigarh.  Even prior to starting of any work, on the said project, Opposite Party No.1, started booking flats, under its pre-launching scheme. Being induced by the fantastic claims, made by Opposite Party no.1, as also projected by Opposite Party No.2, the complainants, booked a flat with the former (Opposite Party No.1), through the latter (Opposite Party No.2), at Chandigarh, by paying initial sum of Rs.6,50,000/- vide cheque no. 361221 dated 14.06.2006, drawn on Centurion Bank, Sector 9D, Chandigarh. Thereafter, the project was finally launched by Opposite Party No.1, in  July, 2007, whereupon, allotment letter Annexure C-3 dated 09.06.2007, allotting apartment no.204, Floor 2, HBTN-Tower-14, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, was issued in favour of the  complainants, which was got countersigned by them. The said  allotment letter, gave details of the total payment to be made, with regard to the price of the said apartment, to the tune of Rs.72,14,504/-. It was stated that out of that amount, payment of a sum of  Rs.6,50,000/-, was acknowledged by Opposite Party No.1. According to Clause 4.a of the allotment letter, the possession of apartment was to be delivered within 36 months of signing the same. According to Clause 4.e of the allotment letter, in case Opposite Party No.1, failed to fulfill its promise of delivery of possession of the apartment, within 36 months, i.e. by June, 2010, the amount paid by the complainants, would be liable to be refunded alongwith simple interest @10% P.A. It was further stated that in pursuance of the said allotment letter, the complainants  paid a total amount of Rs.65,76,117/-, against the total price of Rs.72,14,504/-, upto 28.02.2009. It was further stated that the complainants  had taken housing loan from HDFC Limited, for the purchase of said apartment, and they had paid interest, on the said loan, to the tune of Rs.14,44,117/-. It was further stated that after having paid almost 90% of the total price of the apartment, to Opposite Party No.1, the complainants visited the site, in Greater Noida, and found that the project had still not commenced properly. It was still at the stage of infancy and there were no signs of the project, being completed and possession of the apartment, being delivered by the stipulated date. The complainants, thus, asked Opposite Party No.1, in this regard, and sought the status of construction. Opposite Party No.1, vide letter No.#UL/CU/12359 dated 15.12.2007, Annexure C-5, responded, by misrepresenting, that the possession of the above said project would be handed over to them in phased manner and the same would start by 2^nd quarter of 2009, barring any unforeseen circumstances . It was further stated that though Opposite Party No.1, had promised to deliver the possession of completely furnished apartment, within 36 months i.e. at the latest by June, 2010, yet, despite the expiry of 48 months, i.e. 4 years, from the date of issuance of allotment letter, there was no sign of completion of the project, much less, delivery of possession of the apartment. Since, there was no sign of completion of the project and delivery of possession of apartment, even after the expiry of a period of 4 years, payment of further installments, towards the price of apartment, were stopped. It was further stated that even, Opposite Party No.1, did not refund the amount. It was further stated that on account of non-delivery of possession, of apartment, or non-refund of 90% of the amount, already deposited by the complainants, towards the price of apartment, even after the lapse of more than 4 years, from the date of issuance of allotment letter, a tremendous mental agony and physical harassment, occasioned, to them (complainants). It was further stated that the complainants also suffered financial loss, on account of payment of interest, aforesaid, to HDFC Limited, wherefrom, they have obtained loan, for payment of price of the said apartment. It was further stated that the aforesaid acts, of Opposite Party No.1, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12/18 (infact Section 17) of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming refund of the amount of Rs.94,18,366/- with compound interest @18% p.a.; and a sum of Rs.5 lac, as compensation, on account of mental agony and physical harassment.

2.           Opposite Party No.1, in its written version, pleaded that the complainants had not approached the Commission, with clean hands, as they defaulted in making the payment. It was further pleaded that the complainants, did not fall, within the definition of consumer, under the Act, as, they, being permanent residents of Chandigarh, invested the amount for the purchase of apartment, in question, just with a view to resell the same, to earn profit. It was further pleaded that this Commission, at Chandigarh, has no territorial jurisdiction to entertain and decide the complaint, as according to Clause 13 of the allotment letter, only the Courts at Gautam Budh Nagar, has the jurisdiction to entertain and decide the same. It was further pleaded that according to Clause 14.b of the allotment letter, in case of dispute, the matter was to be referred to the arbitration, and, as such, the Commission, under the Act, has no jurisdiction to decide the complaint. It was admitted that the complainants,  applied for the allotment of an apartment. It was also admitted, that the allotment letter was issued, in favour of the complainants. It was also admitted, that the total amount of Rs.65,76,117/-, was paid by the complainants, against the price of apartment to the tune of Rs.72,14,504/-. It was also admitted, that,  as per the terms and conditions of allotment letter, the possession of apartment,  was to be delivered within 36 months, of signing the same, subject to the circumstances, beyond the control of the developer. It was further stated that the possession of apartment was offered to the complainants in January 2011 and they were asked to complete the formalities, but they failed to do so. It was further stated that, since the complainants themselves stopped making payment of further installments and complete the formalities as per the letter dated 15.01.2011, vide which the possession was offered to them, they were at fault, and, as such, were not entitled to the refund of amount, with interest, as also, other reliefs claimed by them.

3.           Opposite Party No.2, was duly served, but no authorized agent/representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte.

4.           The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.

5.             Opposite Party No.1, in support of its case, submitted an affidavit of Mr.Ajaypal Singh, Manager(Legal), by way of evidence, alongwith which, a number of documents were attached.  

6.             We have heard complainant no.1, as well as Opposite Party No.1, and, have gone through the evidence and record of the case, carefully. 

7.             The first question, that arises, for consideration, is, as to whether, this Commission, at Chandigarh, has jurisdiction to entertain and decide the complaint, or not. In para no. 1 of the complaint, it was in clear-cut terms, averred by the complainants, that Opposite Party No.1, had appointed Opposite Party No.2, as it authorized agent, for sale and marketing of the said project, launched by it, in North Region at Chandigarh. In para no. 2 of the complaint, it was again, in clear-cut terms stated by the complainants, that they booked a flat/apartment, with Opposite Party No.1, through Opposite Party No.2, at Chandigarh,  by paying initial sum of Rs.6,50,000/- vide cheque no.361221 dated 14.06.2006, drawn on Centurion Bank, Sector 9D, Chandigarh. Annexure C-1, is a copy of the letter dated 20.12.2005, written to M/s J.D. Realtors Ltd., SCO 317-318, Level 1, Sector 35B, Chandigarh-160022 (Opposite Party No.2), by Opposite Party No.1. Vide this letter, Opposite Party No.1, appointed Opposite Party No.2, as its authorized agent, for sale and marketing of various real estate projects in North India Region. Vide this letter, interalia, Opposite Party No.2, was also informed, that it will be entitled to commission on basic price, PLC and the car parking charges of the properties booked by him. Opposite Party No.2 was also informed vide this letter that he will be paid 1/3^rd commission on booking, 1/3^rd on receipt of 1^st installment and 1/3^rd after payment of 2^nd installment . Annexure C-2, is the receipt dated 14.06.2006, issued by the authorized signatory of Opposite Party No.2, at the time of booking of  apartment at Chandigarh and payment of initial amount of Rs.6,50,000/-. The complainants also deposed with regard to the aforesaid averments, and documents, in their evidence, by way of joint affidavit. From the aforesaid proved facts, and the documents, it is evident, that the apartment was booked by the complainants, through Opposite Party No.2, at Chandigarh, letter of allotment dated 09.06.2007(wrongly mentioned in the complaint as 31.07.2007), Annexure C-3, was issued to the complainants, at Chandigarh; and the initial payment of Rs.6,50,000/-, at the time of booking the apartment was made to Opposite Party No.2, at Chandigarh. Under these circumstances, a part of cause of action, arose to the complainants, to file the complaint under section 17(c), of the Act, in the territorial jurisdiction of Chandigarh. This Commission has, therefore, jurisdiction to entertain and decide the complaint.  The submission of the Counsel for Opposite Party No.1, that this Commission, has no territorial jurisdiction, to entertain and decide the present complaint, being without merit, must fail, and the same stands rejected.

8.             The Counsel for Opposite Party No.1, however, placed reliance on A.B.C. Laminart Pvt. Ltd and Another Vs. A.P. Agencies, Salem (1989) 2 Supreme Court Cases 163, Nitin Sharma Vs. M/s Unitech Limited Noida, complaint case number 78 of 2009, decided on 05.05.2011, by the State Consumer Disputes Redressal Commission, New Delhi, as also Clause 13 of the allotment letter Annexure C-3, and submitted that only the State Consumer Disputes Redressal Commission, Uttar Pradesh, has the jurisdiction to entertain and decide the complaint. A.B.C. Laminart Pvt. Ltd and Another`s case (supra), relates to the interpretation of Section 20(c) of the Civil Procedure Code. While interpreting the provisions of Section 20(c) of the Civil Procedure Code, the Hon`ble Supreme Court, held that the parties, by way of agreement, could confer jurisdiction,  on one of the two Courts, having the same (jurisdiction), to entertain and decide the lis. The provisions of Section 17(c) of the Act, did not fall for interpretation before the Hon`ble Supreme Court in A.B.C. Laminart Pvt. Ltd and Another`s case (supra).  It may be stated here, that all the provisions of the Code of Civil Procedure, except those, which are specifically mentioned, in the Act, are not applicable to the disputes, under the Act. In complaint case No.78 of 2009, decided by the State Consumer Disputes Redressal Commission, New Delhi, on 05.05.2011, reliance was placed on A.B.C. Laminart Pvt. Ltd and Another`s case (supra). Since the provisions of  Section 20(c) of the CPC, are not applicable to the disputes, under the Act, no help, therefore, can be drawn by the Counsel for Opposite Party No.1, from the principle of law, laid down, in the aforesaid cases, as also Clause 13 of the allotment letter, conferring jurisdiction, only on the Courts at Gautam Budh Nagar (Noida). Under these circumstances, the submission of the Counsel for Opposite Party No.1, being without merit, must fail and the same stands rejected.

9.             The next submission, of the Counsel for Opposite Party No.1, to the effect, that according to Clause 14.b of the agreement, Annexure C-3, disputes and differences, arising out of, in connection with or in relation to this transaction, which could not be amicably settled, were to be referred to the arbitration, and, as such, this Commission, has no jurisdiction to entertain and decide the complaint, also does not appear to be correct. In Skypak Couriers Ltd. Versus Tata Chemicals Ltd. 2000(1) CPC 679, the principle of law, laid down, by the Apex Court, was to the effect, that even if, there is some arbitration Clause, in an agreement, which is the subject matter of a complaint, it did not act as a bar to the entertainment of a complaint, by the Consumer Foras. It was further held  that remedy, under the Act, is in addition to the provision of any other law,  for the time being, in force. It was further held, that even if, there exists an arbitration Clause,  in the agreement, and the complaint is made by the consumer, in relation to certain deficiency of service, then the existence of an arbitration Clause shall not stand in his way to maintain a complaint in the Consumer Fora. Similar principle of law, was laid down in Cholamandalam DBS Finance Ltd.  Vs. Kishore Jain, 2008(1) CPC 448. Under these circumstances, the principle of law, laid down, in the aforesaid cases, is squarely applicable to the facts and circumstances of the instant case. It is, therefore, held that this Commission, has got jurisdiction to entertain and decide the complaint, irrespective of the existence of an arbitration Clause, in the allotment letter Annexure C-3. Under these circumstances, the submission of the Counsel for Opposite Party No.1, being without merit, must fail and the same stands rejected.

10.           The next submission, of  Opposite Party No.1, is to the effect, that since the complainants are permanent residents of Chandigarh, they booked apartment, only by way of investment, with a view to sell the same, to gain profit. She further submitted that, as such, the complainants do not fall within the definition of  consumer,  under the Act, and this Commission, has no jurisdiction, to entertain and decide the complaint. The submission of the Counsel for Opposite Party No.1, does not appear to be correct. Admittedly, it was a residential apartment, which was booked by the complainants. They paid 90% of the amount, towards the price of apartment. The mere fact, that the complainants are permanent residents of Chandigarh, does not mean, that they could not go to Gautam Budh Nagar, to stay in the apartment, which was booked by them. Even, they could purchase apartments, for their residence,  at different places. The mere fact,  that two persons are having many houses/apartments, at different places, does not mean, that they are property dealers, by profession. There is nothing, on record, to show, that the apartment was booked by the complainants, by way of investment, with a view to  resell the same, to gain profit. The complainants, thus, fall within the definition of consumer, under the Act. The submission of Counsel for Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

11.           No doubt, after payment of 90% of price of the apartment, further payment of installments, was stopped by the complainants, but it was done by them, as on site visit, they  found that there was no sign of construction, what to speak of delivery of possession, within the stipulated time. The possession of apartment, was to be delivered within 3 years, as per Clause 4.a, from the date of signing the allotment letter dated 09.06.2007. It means that the possession was to be delivered, on or before 09.06.2007. Till date, the possession of apartment, has neither been offered nor delivered to the complainants, though a period of more than four and a half years, has lapsed. No doubt, the Counsel for Opposite Party No.1 placed reliance on annexure R-2, to contend that possession was offered to the complainants on 15.01.2011, and they were asked to clear their dues, but they did not do so. The careful reading of this letter reveals that only paper possession was offered to the complainants. In the last two lines of this letter, it was clarified by Opposite Party No.1 that actual physical possession of the apartment shall be handed over within 45 days of submission of possession letter at project site. Thereafter, further letters were statedly written to the complainants on 10.03.2011, 28.05.2011, 27.06.2011, 25.07.2011 and 24.08.2011. No evidence was produced by Opposite Party No.1, as to the mode, vide which these letters were sent to the complainants. No proof of delivery of these letters to the complainants was produced by Opposite Party No.1. These letters appear to have been created later on, so as to defeat the claim of the complainants. No reliance, on these letters, therefore, can be placed.  The complainants were bound to make payment of further installments, only, if there had been a sign of completion of construction or delivery of possession of the apartment, in the near future. No tangible evidence, was produced by the Opposite Parties, that the construction of apartment, had been completed by the stipulated date, or even till date,  and it was ready to deliver possession of the same. In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainant. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the complainant. It was further held that the builder cannot forfeit the entire money, paid by the complainant, on account of his own fault, in not carrying out the development work. Ultimately, the Hon’ble National Consumer Disputes Redressal Commission ordered the refund of amount with interest. The principle of law, laid down in Prasad Homes Private Limited`s case (supra), is fully applicable to the facts of the instant case. Under these circumstances, it could not be said, that the complainants were at fault. On the other hand Opposite Party No.1, was at fault in not raising the construction and delivering the possession, in time. The complainants could not wait for an indefinite period, at the whims and fancies of the builder. By neither delivering the possession by the stipulated date, nor refunding the amount, deposited by the complainants, Opposite Party No.1, was not only deficient, in rendering service, but also indulged into unfair trade practice. Under these circumstances, the complainants, are entitled to the refund of amount, deposited by them.  

12.           The next question, that arises for consideration, is, as to whether, the complainants are entitled to interest, if so, at what rate. According to Clause 4.e, of the allotment letter Annexure C-3, signed by the complainants and an authorized signatory of Opposite Party No.1, which constitutes a concluded contract, if for any reason, the developer was not in a position to offer the apartment altogether, it shall offer the allottee(s), an alternative property or refund the amount in full, with simple interest @10% per annum, without any further liability, to pay damages or any other compensation on that account. It is a settled principle of law, that the parties are bound by the terms and conditions of the agreement; executed between them. The complainant, is, thus entitled to interest, as per the letter of allotment, referred to above @10% per annum, on the amount deposited, from the respective dates of deposit(s).

13.           The next question, that arises, for consideration, is, as to whether, the complainants are entitled to compensation, on account of non-delivery of possession in time,  if so, at what rate. According to Clause 4.c.ii)., the developer would pay charges @Rs.5/- per square feet, per month of the super area, for the period of delay, in offering the delivery of possession of the said apartment, beyond the period indicated in clause 4.a.i)., save and except, for reasons beyond the reasonable control of the developer and force majeure events. It may be stated here, that no plausible evidence, was produced  by Opposite Party No.1, that it was on account of force majeure events or for the reasons beyond its control, that the project could not be completed, within the stipulated period. Under these circumstances, according to Clause 4.c ii)., Opposite Party No.1, is also liable to pay charges @Rs.5/- per square feet, per month, of the super area from 10.06.2010 [09.06.2010, being the date for delivery of possession of apartment], till realization.

14.           The next question, that arises, for consideration, is, as to whether, the complainants are entitled to compensation, on account of mental agony and physical harassment, as also on account of suffering of financial loss, due to non- delivery of possession, within the stipulated period or not. It may be stated here, that according to Clause 4.e of the allotment letter Annexure C-3, the developer was not liable to pay any damages or any other compensation.  As state above, the parties are bound by the terms and conditions of the allotment letter Annexure C-3, which constitutes a concluded contract. The complainants, are, thus, not entitled to any compensation, on account of mental agony and physical harassment or suffering of loss, due to payment of interest, on the loan amount, raised by them, from HDFC Limited, for purchasing the apartment, aforesaid.

15.           No relief was sought, against Opposite Party No.2. Accordingly, complaint against it is dismissed.

16.           No other point, was urged, by complainant no.1, as well as Opposite Party No.1.

17.           For the reasons recorded above, the complaint is partly accepted, with costs, against Opposite Party No.1, in the following manner:_

i)                 Opposite Party No.1,  is directed to refund Rs.65,76,117/-, to the complainants, i.e. the amount deposited by them, with it, for the purpose of purchase of apartment.

ii)               Opposite Party No.1, is further directed to pay interest @10% p.a., on the amount of Rs.65,76,117/-, from the respective dates of deposit, till realization.

iii)              Opposite Party No.1, is further directed to pay charges @Rs.5/-per square feet per month, of the super area, from    10.06.2010 [09.06.2010,  being the date for delivery of possession of the apartment],till realization.

iv)               Opposite Party No.1, is also directed to pay the costs of   litigation to the tune of Rs.7,000/-.

v)                The aforesaid payable amounts, shall be paid, by Opposite Party No.1, within 45 days, from the date of receipt of a copy of the order, failing which, it shall pay penal interest @12% p.a., from the date of default,  till realization, besides payment of litigation costs.

18.           Certified Copies of this order be sent to the parties, free of charge.

19.           The file be consigned to Record Room, after completion

Pronounced.

January 23, 2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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