BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.217 of 2015

                                 Date of institution:          11.05.2015

                                           Date of Decision:            12.01.2016

1.     Mrs. Savita Gupta wife of Dr. Ghanshyam Das Gupta.

2.     Dr. Ghanshyam Das Gupta son of Shri Narayan Das Gupta.

Both residents of House No.2883, First Floor, Phase-VII, SAS Nagar, Mohali, Tehsil and District SAS Nagar, Mohali.

                                      ……..Complainants

                                        Versus

1.     Unitech Limited, a Public Limited Company duly Corporate under the Companies Act, 1956 having its Marketing Office at SCO No.189-190-191, Sector 17-C, Chandigarh through its General Manager (Sales) Shri Rakesh Chhabra.

2.     Alice Developers  (P) Ltd. through its Managing Director, having their registered office at Basement, 6 Community Center, Saket, New Delhi, 110017.

                                                             ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Gaurav Sharma, counsel for the complainants.

Ms. Vertika H. Singh, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    to refund the deposited amount of Rs.5,41,840/- with interest @ 18% per annum from the date of deposit till realisation.

(b)    to pay them Rs.1,61,500/-  as penalty charges for delay in possession.

(c)    to pay them Rs.1,00,000/- as damages on account of mental tension, agony and harassment.

(d)    to pay him Rs.40,000/- as costs of litigation.

                The case of the complainants is that they booked floor/flat in the Uniword City, Mohali in 2009 vide allotment No.00035, Block-A, Floor-GF No.0016, Sector 107, Mohali. As per schedule of the payment, the complainants paid Rs.2,57,000/- to the OPs towards first installment on 05.09.2009. Thereafter the agreement was executed between the parties on 22.09.2009.   As per Clause 4- a(1) of the agreement the possession of the floor was to be delivered by the OPs within 36 months of signing of the agreement. After that the complainants paid the second installment amounting to Rs.2,84,840/- on 26.12.2009. Third installment was to be paid on commencement of the construction and fourth installments at the time when construction reaches at the plinth level. Thereafter, the remaining installments were to be made at the different phases/stages of construction.  But the OPs had not started construction of the Block-A even after passage of five years from the date of registration.  As the construction work had not started, hence the OPs had not demanded the third installment. The complainants does not own house in the vicinity of Tricity and they are living in rental accommodation for the last about seven years. The amount of Rs.5,41,840/- is lying deposited with the OPs for the last more than five years and the OPs are enjoying the money of the complainants.  The complainants have been regularly following up with the OPs but the OPs are dilly dallying the matter on one pretext or the other.  The complainants also came to know that the OPs do not have the requisite approvals for construction of the project.  The complainants sent letter dated 28.06.2014 to the OPs but inspite of that the OPs failed to deliver the possession of the floor/flat With these allegations the complainant has filed the present complaint.

2.             The OPs in the preliminary objections of their written statement have pleaded that this Forum does not have the territorial jurisdiction to adjudicate the present complaint as the buyers agreement dated 22.10.2009 was executed at New Delhi and the demand for payment has been raised from the Gurgaon office of the OPs. The complainants are simply investors who had invested for resale purposes and as such they does not fall within the ambit of definition of ‘consumer’ as defined under the Consumer Protection Act. The complaint is also liable to be dismissed for misjoinder of parties as the complainants are seeking refund from OP No.1 who is an employee i.e. General Manager of the company.  No consumer dispute has arisen for the complainant in the present case. The issue related to contractual matter which can be adjudicated in civil proceedings.  On merits, it is denied that the complainants are residing in rental accommodation for the last 7 years. The construction has been delayed due to force majeure circumstances as there is Global meltdown of the economy world wide. The OPs are facing extreme financial hardship due to recession in the reality market. These circumstances are beyond the control of the OP. As per Clause 4.C of the buyers agreement dated 22.10.2009 the OPs are liable to pay charges at the rate of Rs.5/- per sq. ft. per month of the saleable area of the floor for the period of delay beyond 36 months.  But this clause comes with a rider that the OPs shall be liable to pay the aforesaid charges except for the reasons beyond the reasonable control of the developers. As per clause 4.C the said charges, if payable, shall be adjusted at the time of final notice of possession. As per clause 8 (b) of the buyers agreement the OPs are entitled to reasonable extension of time of agreed date for delivery of possession. The OPs are making every endeavour to commence the construction work at the site.  The OPs have denied receipt of letter dated 28.06.2014 from the complainants.  Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.

3.             To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-12.

4.             Evidence of the OPs consists of affidavit of Lalit Gupta, their authorised representative Ex.OP-1/1 and copy of resolution dated 19.06.2015 Ex.OP-1.

5.             We have heard learned counsel for the parties and have also gone through the written arguments filed by them.

6.             The agreement dated 22.09.2009 Ex.C-5 for purchase of ground floor No.0016/Block-A on Plot No.16 on plot area of approximately 160 sq. meters (approximately 191.36 sq. yards) and saleable area of floor 100.06 sq. meters (approximately 1077 sq. ft. approximately) in ‘Unihomes’ to be developed by the OPs in the Mega Township known as Uniword City, Sector 107, Mohali Punjab.  Agreement Ex.C-5 for sale of the floor is admitted. As per agreement against the total sale consideration of Rs.28,31,304/-, the complainants have paid a sum of Rs.5,41,840/- as on 26.12.2009 upto the second installment. The remaining installments were to be paid as per construction linked plan. Since the OPs have not started the construction even after lapse of five years from the date of registration of the said agreement, the OPs have in the event of non development and construction of the area have been enjoying the money of the complainant without rendering any service or making any efforts to complete the sale transaction of the floor in question. Once the complainant learnt about the fact that the OPs were not having necessary approvals, therefore, vide letter dated 28.06.2014 Ex.C-12 asked the OPs to refund his deposited alongwith interest. Neither the amount has been refunded nor the OPs have offered them the possession.

7.             It is an undisputed preposition of law that the parties are bound by the terms and conditions of the contract voluntarily agreed by them. The perusal of contents of Ex.C-5 clearly stipulates that the OPs were to handover the possession of the property in question to the complainant within 36 months from the date of signing of the agreement and the said date expired on 21.09.2012. The OPs have failed to show issuance of any offer of possession to the complainants by the said stipulated date. Further the OPs have failed to show the development and construction at site for demand of third installment onwards as the said installments were to be paid by the complainant as per construction linked plan. The only plea taken by the OPs that they failed to adhere to the agreed time frame taking the shelter under force majeure clause due to market slow down including economic slowdown and recession in real estate sector. We do not agree with such contentions of the OPs. The OPs have failed to produce any material on record to show the reasons which stopped them to complete the construction of the project within the stipulated period as mentioned in the buyer’s agreement.  Thus, the delay in construction of the apartment/floor is due to the inactions of the Ops and cannot be contributed to any reasons mentioned in Clause 4.a (ii) of the buyers’ agreement. 

8.             Since the OPs have failed to show the steps taken by them for offer of possession, the complainants cannot be deprived of the benefits of their amount which was lying with the deposited since 26.12.2009 and being used by the OPs without any cause. The letter dated 28.06.2014 remained unanswered in the hands of the OPs and due to unfulfilled promise of the OPs, the complainants were forced to live in rented accommodation by paying monthly rent as per receipts Ex.C-3 (colly). Had the OPs stood by their obligations and followed the agreed time frame as per the agreement, the complainants would have walked into their own house which they had purchased with the intention to shift to the residential accommodation for residential purposes. By not doing so the OPs have indulged into unfair trade practice causing financial loss and mental agony and harassment to the complainants.   Thus, the complaint deserves to be allowed and the complainants deserve to be compensated.

9.             In view of above discussion, the complaint is allowed with the following directions to the OPs to;

(a)    to refund to the complainants total deposited amount of Rs.5,41,840/- (Rs. Five lacs forty one thousand eight hundred forty only) alongwith interest @ 12% per annum from the respective dates of deposits till actual payment.

(b)    to pay to the complainants a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

January 12, 2016.     

                       (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

            Member