JUSTICE V.K. JAIN (ORAL)

The complainant has filed rejoinder, affidavit of admission/denial of documents as well as affidavit by way of evidence more than one year ago. The opposite party has not filed either affidavit of  affidavit of admission/denial of documents or affidavit by way of evidence. On the last date of hearing, one last and final opportunity was given to the opposite party to file the said affidavits subject to payment of Rs.20,000/- as cost. Neither the cost has been paid nor the affidavits have been filed. The learned counsel for the opposite party expresses his inability to pay the cost. I have, therefore, heard the learned counsel for the parties since the matter is stated to be covered by the previous decisions of this Commission.

2.      The complainant booked two residential plots with the opposite party  in a project namely “Uniworld City” which the opposite party was to develop in Sector 97, 106 & 107  of Mohali in Punjab.  Plot No.44 in Block B was allotted to him for a consideration of Rs.74,72,010/- and he executed a buyers agreement with the opposite party on 24.4.2008, in respect of the aforesaid plot.  Plot No. 0004 in Block B of the aforesaid project was also allotted to him for the same consideration and he executed a separate agreement with the opposite party on the same date, in respect of the said plot.

3.      In terms of Clause 4.a(i) of the said agreements, the possession of the plots was to be delivered within 36  months of their execution of the said agreements.  The possession, therefore, ought to have been delivered to the complainant by 24.4.2011. The grievance of the complainant is that the possession of the plots has not even been delivered to him despite he having already paid a sum of Rs.72,28,753/- to the opposite party in respect of each of  the aforesaid plots.  The complainant is therefore before this Commission, seeking refund of the amount paid by him along with compensation etc.

4.      The opposite party filed its written version contesting the complaint and took a preliminary objection that the complainant is not a consumer he having booked the plots for investment purpose. On merits, the complaint was resisted on the grounds which this Commission is stated to have already rejected in several other consumer complaints relating to this project. As regards the objection that the plots were booked by the complainant as an investor, it is claimed in para 4 of the complaint that the one plot was booked by the complainant for himself and his family, whereas the other plot was booked for his parents who desired to have an  independent set up. There is no reason to reject the plea taken by the complainant in this regard. This is more so when no evidence has been filed by the opposite party to rebut the case set out by the complainant. A flat buyer cannot be said to be an investor merely on account of his having booked more than one plots/flats. What has to be seen is whether booking of more than one plots/flats was made by him for bonafide need of himself and his family or it was made for speculative purposes. A reference in this regard can be made to the decision of this Commission in Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Ltd. – CC No.137 of 2010 and connected matters decided on 12.2.2015, where the complainant had booked as many as three flats in the same project of the OP,  one for use and occupation for herself and her family members, one for her in-laws, and third for her younger sister. In the present case, the desire of the complainant to acquire one plot for himself and his family and the other for his parents who wanted to have an independent set up seems to have bonafide and there is no material on record to prove that the bookings were made for a speculative purpose.

5.      It is true that the complainant has made two different bookings though on the same date and executed two separate agreements with the opposite party, though on the same date. However, in the facts and circumstances of the case, it would not be appropriate to ask him , at this stage, to file two separate complaints at this stage since (i) complaint has been entertained and has been pending for more than one year (ii) the matter is covered by the precious decisions of  this Commission and (iii) even if two separate complaints are filed – one in respect of each allotment, considering the agreed sale consideration and the interest etc. claimed by the complainant, the said individual complaints will have to be instituted before this Commission only and no other consumer Forum would have jurisdiction to entertain them.

6.      The learned counsel for the complainant has submitted that the matter is in fact covered by several previous decisions of this Commission including Harinder Singh Vs. M/s. Unitech Limited, CC/25/2016 decided on 19.12.2016.  The order passed by this Commission in Harinder Singh (supra), to the extent it is relevant reads as under:-

“2.      The complaint has been opposed by the OP which has admitted the allotment made to the complainant as well as the payment made by him.  It has been stated in the written version filed by the OP that though they tried their best to hand over the possession of the plot but the project got delayed on account of reasons and circumstances beyond their control.  The following, according to the OP, are the main reasons which resulted in delaying the aforesaid project:

          (i) There was a slump in the real estate industry.

         (ii) There was extreme shortage of labour/workers due to Commonwealth Games organized in 2010. 

         (iii) There was shortage of labour on account of schemes like National Rural Employment Guarantee Act (NREGA) and Jawaharlal Nehru National Urban Renewal Mission (JNNURM).

          (iv) There was an acute shortage of water in NCR region.

         (v) Vide notification dated 14.09.1999, Ministry of Environment and Forest had barred excavation of soil for manufacture of bricks. 

         (vi) There was shortage of raw materials such as sand on account of mining operations having been suspended by the Hon’ble Supreme Court vide its order dated 08.05.2009.

          It is also stated in the written version filed by the OP that in case of delay in offering possession, the purchaser is entitled to a penalty compensation of Rs.50/- per sq. yard per month of the area of the plot and therefore, the calculation of the compensation cannot exceed the said amount. 

3.      The learned counsel for the complainant submits that the present complaint is squarely covered by the decision of this Commission in CC No. 346 of 2013 Lt. Col. Anil Raj & Anr. Vs. M/s Unitech Ltd. & Anr. decided on 02.05.2016.  In Col. Anil Raj (Supra), the complainants had entered into an agreement for purchase of a plot in this very project i.e. Uniworld City in Mohali, Punjab but the OP had failed to deliver possession of the said plot within the time stipulated in the Buyers Agreement.  The OP, during the course of hearing of the aforesaid complaint, expressed willingness to refund the amount deposited by the complainant alongwith interest @ 10% per annum.  They were directed by this Commission to refund accordingly.  The OP however, failed to comply with the said order.  This Commission, considering the deficiency on the part of the OP in rendering services to the aforesaid complainant and also taking note of the conduct of the OP in not honouring its own commitment of refund alongwith interest @ 10% per annum, directed it to pay simple interest @ 18% per annum from the date of each deposit till realization.  The OP was also directed to pay cost of Rs.3,00,000/- to the complainant and deposit Rs.2,00,000/- with the Consumer Welfare Fund of this Commission. 

4.      Even on merits, I find no justification for the delay in offering possession of the plot to the complainant.  As far as the Commonwealth Games are concerned, they were held way back in October 2010, almost five years before the parties entered into the second Buyers Agreement.  Therefore, reference to the said Games is wholly misplaced. 

          There is absolutely no evidence of the OP having tried to recruit labourers and having not been able to do so on account shortage of labour in the market.  Therefore, there is no merit in the plea that the project could not be completed on account of shortage of labour.  In any case, the alleged shortage of labour refers to NCR region whereas the plot in question is stated in Mohali. 

5.      As regards the alleged shortage of water, the order passed by the Punjab and Haryana High Court on 16.07.2012, the notification issued by the Ministry of Environment and Forest on 14.09.1999 as well as the order of the Hon’ble Supreme Court dated 08.05.2009 suspending the mining operations in Aravali Region are concerned, all these events happened prior to the parties entering into the second Buyers Agreement dated 23.03.2015.  The OP despite the aforesaid events, having agreed to deliver possession of the plot to the complainant within six months of the said Buyers Agreement, cannot take the plea that the completion of the project has been delayed on account of the aforesaid reasons.  I am therefore, satisfied that there was no justification for the delay in completion of the project and offering possession to the complainant.” 

7.      The learned counsel or the complainant states on instructions that the complainant is restricting his claim to the refund of the entire principal amount along with simple interest @ 10% per annum in terms of Clause 4(e) of the Buyers’ Agreement, which reads as under:

“4.e.  If for any reason the Developers are not at all in a position to offer the plot, as agreed herein, the Developers may offer the purchaser(s) an alternative property or refund the amount in full with interest @ 10% per annum without any further liability to pay damages or any other compensation.”

8.    For the reasons stated hereinabove, the complaint is disposed of with the following directions:-

(i)      The opposite party  shall pay the entire principal amount of Rs.1,44,57,506/- alongwith compensation in the form of simple interest @ 10% per annum with effect from the date of each payment till the date on which the entire principal amount along with compensation in the form of interest is actually refunded.

(ii)        The opposite party shall also pay a sum of Rs.25,000/- as the cost of litigation to the complainant.

(iii)       The payment in terms of this order shall be paid within three months from today.