BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.167 of 2015
Date of institution: 10.04.2015
Date of Decision: 23.10.2015
1. Sunil Kalra son of Late A.S. Kalra, resident of H.No.4-A, Flat No.708, Printers Apartment, Sector 13, Rohini, Delhi 110085.
2. Anshu Kalra w/o Sunil Kalra, resident of H.No.4-A, Flat No.708, Printers Apartment, Sector 13, Rohini, Delhi 110085.
……..Complainants Versus
Unitech Limited, Real Estate Division (Marketing), Ground Floor, Signature Towers, South City-1, NH-8, Gurgaon-122001 Haryana through its Managing Director.
IInd Address:
Garden Gallaria, Uniworld City Township, Sector 106, Mohali through its authorised representative.
………. Opposite Party
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 Munish Kumar, counsel for the complainants.
Ms. Vertika H. Singh, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint seeking following directions to the OP to:
(a) pay them Rs.8,84,799/- alongwith interest @ 18% per annum.
(b) pay them Rs.7/- per sq. ft. per month from 16.06.2012 till 16.03.2012 i.e. Rs.1,43,259/-.
(c) pay them Rs.2.00 lacs as compensation for mental tension, harassment, undue hardship and agony.
(d) pay them Rs.1,00,000/- for unfair trade practice and Rs.55,000/- as costs of litigation.
The case of the complainants is that the OP widely publicized its project under the name and style as ‘Garden Galleria’ in Uniworld City Township, Sector 106, Mohali. The complainants were told by the OP that the Mega Township shall comprise of plots, villas, multi storey, group housing, commercial complexes etc. It was also assured that the layout plan of the township had already been approved by the Govt. of Punjab. The complainant agreed to purchase a shop measuring 620.17 sq. ft. in the project of the OP for themselves for earning their livelihood by way of self employment at Mohali. The complainant submitted application form dated 16.08.2010 alongwith cheque of Rs.2,25,000/- receipt whereof was issued by the OP. Out of this amount, Rs.2,17,059/- was accepted towards booking amount and Rs.7,941/- towards advance for the next installment. Thereafter, the complainants were allotted shop No.0022 Block No.00 vide allotment letter dated 16.08.2010 for a total consideration of Rs.21,70,595/-. An agreement to sell was executed between the parties on 16.09.2010. The complainants also paid Rs.2,09,118/- vide cheque to the OP vide receipt dated 14.10.2010. As per Clause 4.1 of the agreement, the possession of the unit was to be delivered within 21 months which period had expired on 16.06.2012. Till date there is no development at the site. The complainants visited the OP number of times but every time a false assurance was given to them regarding possession. On asking of the OP, the complainant paid further sums of Rs.2,28,033/- vide cheque dated 16.12.2010 and Rs.2,26,648/- vide cheque dated 26.12.2011. Till date the complainants have paid Rs.8,84,799/- but the construction of the project has not been started. The complainants requested the OP to pay them compensation for delay in offering possession as per Clause 4.3 of the agreement and to refund their deposited amount alongwith reasonable interest but till date nothing has been paid to the complainants by the OP. The complainants are entitled to compensation of Rs.7/- per sq. ft. per month of super area which was 620.17 sq. ft. which comes to Rs.4341.19 per month from 16.06.2012. With these allegations the complainant has filed the present complaint.
2. After admission of the complaint, notice was sent to the OP. OP in the written statement has pleaded in the preliminary objections that this Forum does not have the territorial jurisdiction to adjudicate the present complaint. The agreement to sell dated 16.09.2012 was executed at New Delhi and the payments have been made to the Gurgaon Office. The complainants are not consumer as they have bought the shop for commercial purposes. The complainants are investors who have invested in the shop for resale purpose. On merits, it is denied that the complainants had bought the unit for earning their livelihood. As per Article 17 of the agreement to sell all disputes, differences or disagreements arising out of, in connection with or in relation to this agreement, shall be mutually discussed and settled between the parties. Clause 17.2 stipulates that if the disputes, differences, or disagreements could not be amicably settled then they shall be finally decided by arbitration in accordance with the provisions of Arbitration and Conciliation Act, 1996. The OP could not handover possession of the shop due to global meltdown of the economy world wide. The OP is facing extreme financial hardship due to recession in the reality market. These circumstances were beyond the control of the OP. As the complainants themselves are defaulters, they could not claim possession of shop from the OP. The OP has denied that the complainants ever visited its office or site or any assurance was given to them regarding possession of the shop. As per Clause 4.5 of the agreement to sell, the OP is entitled to reasonable extension of time in delivery of possession in the event of any force majeure circumstances beyond the control of the OP. As per clause 4.3 of the agreement to sell the compensation @ Rs.7/- per sq. ft. of super area per month is payable subject to the force majeure circumstances. It has been specifically stipulated vide Clause 12.2 of the agreement to sell that various time lines indicated and agreed in the agreement to sell shall stand automatically stand extended during the operation, occurrence or continuance of force majeure. The OP vide e-mail dated 19.09.2013 made implicitly clear that such compensation shall be adjusted on the final payments made by the complainants. As per Article 15 of the agreement, the OP shall have the right to terminate the agreement and forfeit the earnest money which as per Clause 2.5 of the agreement is Rs.2,17,060/-. The complaint is barred by limitation as there is no continuous cause of action for filing the present complaint. The complainants are seeking refund of the deposited amount and not the possession of the unit. The possession of the unit was to be handed over by 16th June, 2012 and the limitation of filing the present complaint expired on 15.06.2014. Denying any deficiency in service on their part, the OPs have sought dismissal of the complaint against it.
3. To succeed in the complaint, the complainants tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-8.
4. Evidence of the OP consists of affidavit of Lalit Gupta, its authorized representative Ex.OP-1/.
5. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.
6. It was submitted by learned counsel for the complainants that from the evidence produced by the complainants it stands proved that against the agreed sale consideration of Rs.21,70,595/- the complainants have paid a total sum of Rs.8,84,799/- as on 26.12.2011 As per Clause 4.1 of the agreement Ex.C-4 the possession of the unit was to be delivered within 21 months which period had expired on 16.06.2012, as per the duly signed agreement dated 16.08.2010. The possession was never delivered nor offered nor can it be made out from the averments of the OP that there is possibility of delivery of possession in the near future. There is no development at the site till date as the complainants have visited the OP number of times and have been given false assurances of offer of possession. As per Clause 4.3 of the agreement, in the event of default of offer of possession by the stipulated period, the OP is under obligation to pay to the complainants compensation of Rs.7/- per sq. ft. per month for the super area of 620.17 sq. ft. of the disputed site in question and the said obligation has not been discharged by the OP. The total amount on this account comes to Rs.4,341.19 per month from 16.06.2012 till the offer of possession. The plea of the OP that the project could not be completed on account of force majeure cannot be held to be sustainable as the OP had failed to show any circumstances which were beyond its control. Once it collected such a huge amount, it was required to fulfill its obligation under the agreement. Since the OP has failed to make offer of possession within the stipulated period and even there is no possibility of completion of project and delivery of the possession of the allotted shop, the OP cannot retain the money of the complainants for all the periods to come and it is bound to refund the same alongwith interest as prayed for in the complaint. In support of their contention, the complainants have relied upon the orders passed by the Hon’ble Punjab Consumer Disputes Redressal Commission in Consumer Complaint No.90 of 2014 titled as Balbir Kaur Vs. Unitech Ltd. decided on 13.07.2015 and Consumer Complaint No.90 of 2012 titled as Brij Mohan Gupta Vs. Unitech Limited, decided on 13.08.2014 . As per the complainants the facts of the present complaint are squarely covered by the aforesaid decision of the Hon’ble Punjab Consumer Disputes Redressal Commission. On account of non delivery of possession, inspite of receipt of considerable amount and further not raising any demand for the remaining amount which the complainants were ready and willing to make payment, the act of the OP amounts to deficiency in service and unfair trade practice, which resulted in physical, mental agony and harassment for which they deserve compensation.
7. On the other hand it is submitted by learned counsel for the OP that the agreement itself excuses the OP for not delivering the possession within the stipulated period in case of force majeure circumstances. The plea of the OP in its written statement that there is worldwide recession in the real estate and financial hardship suffered by the OP due to this fact forced it to slow down the development of the project and such circumstances are beyond its control. Therefore, on this account, the complainants cannot ask for refund of the amount and at the most are entitled to benefit of penalty clause as per terms of the agreement. Further as per the OP the complainants have purchased the shop in question for further selling and as such for the purchases for commercial purpose; the complainants are not consumers as defined under the Consumer Protection Act. In support of its contention the counsel for the OP has relied upon decision of Hon’ble National Commission in Harish Kumar Kochar Vs. Gillco Developers Pvt. Ltd. Revision petition No.2386 of 2011 decided on 27.01.2015. On these grounds the OP has prayed for dismissal of the complaint.
8. Before taking up the matter on merits, it will be appropriate to address the preliminary issue of maintainability of the complaint, as alleged by the OP that the complainants are not consumers as they have purchased the shop in question for commercial purpose. In this regard it will be appropriate to refer to Para No.3 of the complaint wherein the complainants have disclosed that complainant No.1 was working in the MTS company which is dealing with internet services and has resigned from the company in the year 2013 and started his own business of data card and allied services with the hope that he will get his own shop at Garden Galliara for running his business for his own livelihood in the year 2013. In support of his intention to start business, complainant No.1 has attached the resignation and relieving letter from his employer i.e. MTS as Ex.C-1. All these facts were duly stand proved from the deposition made by the complainant No.1 in his affidavit Ex.CW-1/1. The said letter and intention of the complainant No.1 makes it amply clear that he is qualified and experienced to run the data card and allied services business as he has the competence and ability to start his own venture for earning livelihood. Therefore, the case of the complainants falls very well within the definition of Section 2 (1) (d) explanation of the Consumer Protection Act. The complainants having availed the services of the OP for consideration are consumers of the OP. The order of the Hon’ble National Commission Harish Kumar Kochar Vs. Gillco Developers Pvt. Ltd. (supra) relied upon by the OP are entirely different from the facts of the complaint in hand. There is no rebuttal evidence to these facts produced by the OP. In the rebuttal affidavit of Shri Rohit Jindal, authorized representative of the OP proved as Ex.OP-1/1, perusal of the same shows that such an affidavit is no affidavit in the eyes of law as it is only the written reply filed by the OP, which has been given the form of an affidavit. That witness was required to specifically deny or rebut the facts in the affidavit which he has failed to do so. Thus, the affidavit of the complainants remained unrebutted.
9. In view of the admission made in the written reply by the OP and evidence produced on record by the complainants, it stands proved that the complainants applied for shop in question by moving an application dated 25.03.2010 and thereafter shop in question was allotted to them vide allotment letter Ex.C-3. Then the agreement Ex. C-4 was executed between the parties on 16.08.2010 and against the agreed sale price of the shop as mentioned in the agreement, the complainants have paid Rs.8,84,799/- as on 26.12.2011 against the receipts duly issued by the OP.
10. It is also an admitted fact and is clear from the agreement Ex.C-4 that the possession of the shop was to be delivered to the complainants by the OP by 16.06.2012 but the same has not been offered till today. The first question to be determined is whether the non completion of the project and non delivery of the possession of the shop in question to the complainants by the OP was on account of force majeure. According to Clause 4.1 of the agreement, the possession of the flat was to be delivered within 21 months but subject to force majeure circumstances as mentioned in Clause 4.3 of the agreement. The force majeure circumstances as explained by the OP in the written reply, to us those circumstances cannot be termed as force majeure. Any circumstance which can be foreseen cannot be held to be force majeure. Only unforeseen circumstances which are beyond the control of a party can be said to be force majeure circumstance. At the time of entering into the business of development/real estate operetta, the OP was supposed to foresee that there can be financial crunch or financial dynamic operating in the market which may affect the real estate business. By no stretch of imagination it can be held that the recession in the market is a force majeure circumstances.
11. The next question to be determined whether on account on non delivery of possession, the complainants are entitled to refund of amount so paid by them alongwith interest or whether they are entitled to recover the amount which was to be imposed as penalty upon the OP by virtue of Clause 4.3 of the agreement. For the purpose of appreciation, clause 4.3 of the agreement is reproduced here below:
“That the Purchaser agrees that if after dispatch of written notice of Possession of the Unit, the Purchaser fails or neglects to take the possession of the Unit, the Purchaser shall be liable to pay holding charges @ Rs.7/- per sq. ft. per month of the Super Area for the space/unit from the date indicated in the notice for Possession till the date the Purchaser takes actual physical possession of the Unit. These holding charges shall be payable in addition to the amount payable by the Purchaser as his/her share of the Govt. or Municipal dues, taxes, levies, maintenance charges or any other administrative charges on proportionate basis, as determined by the Developer or the Maintenance Agency, until the Purchaser has taken actual physical possession of the Unit.
Similarly, subject to Force Majeure circumstances, if any, the Developer shall be liable to pay compensation @ Rs.7/- per sq. ft. of the Super Area per month for the space/unit for the period of delay in offering possession of the said space/unit beyond the committed date.”
12. A minute perusal of this clause makes it clear that this clause can be invoked if there is some delay in offering the possession but cannot be invoked when there is inordinate delay beyond the control of the developers. The OP in its written reply has no where submitted to complete the project in near future. For all this time, the OP has no right to withhold the hard earned money of the complainants particularly when the complainants have been deprived of the opportunity to settle their business for earning their livelihood by not getting the possession of the flat in question which they were expecting in 2012. The retaining of money of the complainants and non delivery of possession and further making no efforts to complete the project amounts to deficiency in service on the part of the OP. Thus, it is liable to refund the amount and for retaining the amount till date, the OP is liable to interest at a suitable rate in addition to just and reasonable compensation for harassment and mental agony caused to the complainants.
13. Admittedly the amount of Rs.8,84,799/- remained in the possession of the OP and it had utilized this money for furtherance of its own cause and without giving any benefit to the complainants, the complainants are squarely entitled to minimum interest @ 12% per annum as has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission in case titled Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited and others, 2014 (2) CLT 401.
14. In view of above discussion, the complaint is allowed with the following directions to the OP:
(a) to refund to the complainants amount of Rs.8,84,799/- (Rs. Eight lacs eighty four thousand seven hundred ninety nine only) with interest thereon @ 12% per annum from the respective dates of deposits till actual refund.
(b) to pay to the complainants 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.
October 23, 2015. (Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
