Punjab

StateCommission

CC/97/2015

Upinder Singh Babbar - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

Rupinder Singh Jhand

14 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

Consumer Complaint No.97 of 2015

                            

         Date of institution  :   28.04.2015      

Date of decision     :   14.10.2016

 

Upinder Singh Babbar son of Harbhajan Singh Babbar, resident of House No.2131, Sector 69, Mohalli, through his special power of attorney Harbhajan Singh Babbar son of Gurdial Singh, resident of House No.2131, Sector 69, Mohali.

…….Complainant

Versus

 

1. Unitech Limited, Regd. Office 6, Community Centre, Saket, New Delhi 110 017 through its Managing Director.
2. Unitech Limited (Uniworld City, Mohali), Marketing Office at SCO-189-90-91, Sector 17, Chandigarh through its authorized officer.

…….Opposite Parties

Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.

Quorum:- 

                     Hon’ble Mr. Justice Gurdev Singh, President

                                  Shri Vinod Kumar Gupta, Member           

Present:-

          For the complainant        : Shri R.S. Jhand, Advocate.

          For the opposite parties  : Ms. Vertika H. Singh, Advocate.         

JUSTICE GURDEV SINGH,  PRESIDENT :

 

          The complainant has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, “the Act”), through his Special Power of Attorney holder Harbhajan Singh Babbar, for the issuance of following directions to the opposite parties:

1. to hand over the possession of the plot in question, along with all basic and assured amenities, immediately without any delay;
2. to pay compensation of Rs.10,00,000/-, for the monetary losses, mental and physical harassment suffered by him on account of unfair trade practice and deficiency in service on their part;
3. to pay interest at the rate of 12% on the amount deposited by him from the date of deposit till the date of actual handing over of the possession;

OR

4. in the alternative to refund the deposited amount of Rs.49,48,650/-, along with interest at the rate of 12%;
5. to pay Rs.10,00,000/- for monetary losses and mental and physical harassment suffered by him as a result of unfair trade practice and deficiency in service;

AND

6. to pay Rs.50,000/-, as litigation charges.

2.      The complainant alleged, in the complaint, that opposite parties launched a Project in the name of Uniworld City, Mohali for providing built-up flats, floors and plots, after developing the area, along with basic amenities and other facilities, as per the brochure issued by them and that Project was widely advertised.  Believing those claims he purchased one residential Plot No.0108 (Boulevard) in Block B in Unitech, Uniworld City, Mohali, Sector 107 in his name, vide Customer Code: BUM0061A, measuring 300 square meters (Approximately 358.80 square yards) for a consideration of Rs.51,12,900/-. Thereafter as per the terms and conditions of the Company, allotment letter was issued on 7.4.2008 and the Agreement was signed on 26.5.2008.  The amenities and facilities were to be provided by all the opposite parties as per their promise and were to provide direct road from Chandigarh to Mohali, along with the latest facilities provided by the Government in Mega Housing Projects.  At the time of booking he was assured by the officials of the opposite parties that the roads, streetlights, electricity, sewerage connection and other facilities were in process and would be provided within few months before the completion of the building.  He was also promised a Club House, for which the charges were levied from him. All the facilities were promised to be provided at the most in three years (thirty six months) from the date of Agreement.  He, after these assurances and details given by the Company officials, opted for construction linked payment plan. He paid all the instalments till the date of filing of the complaint, as demanded by the opposite parties, along with taxes and interest.  In all he paid an amount equal to Rs.49, 48,650/-; which comes to more than 95% of the total cost.   Booking amount was paid through one Davinder Gupta & Sons (Real Estate Agent) and the same was acknowledged by the opposite parties, vide letter dated 7.4.2008. As per the Agreement, the possession of the plot was to be provided within 36 months of the date of execution thereof i.e.26.5.2008 but the same was not offered even upto the date of filing of the complaint, though the period of about more than 4 years, from the promised date, has already passed. The construction/development of the Project has been totally stopped by the opposite parties from the last more than six months of the date of filing of the complaint.  Whenever he tried to know the status of the construction/development of the project, the opposite parties and their officials made excuses on one pretext or the other and failed to give any satisfactory reply.  There is no sign of the basic amenities at the site as assured at the time of booking.  They cheated him of his hard-earned money by showing him dreams of his own house.  These acts and conduct on their part amount to deficiency in service and adoption of unfair trade practice and as a result thereof he suffered mental and physical harassment and grave monetary loss. 

3.      The complaint was contested by the opposite parties, who filed joint written reply, in which they did not dispute that the complainant purchased the residential plot in question from them for a consideration of Rs.51,12,900/- and that as per the terms and conditions of the Company, allotment letter was issued on 7.4.2008 and the Agreement was signed on 26.05.2008. They also did not dispute that the amounts were deposited with them by the complainant and that the possession of the plot has not been handed over to him so far. While denying the other allegations made in the complaint, they averred that the complainant is not an original allottee and the said plot was initially allotted to Davinder Gupta and sons, Realtors. The allotment of the said plot thereafter was transferred in the name of the complainant, vide transfer letter dated 7.4.2008.  The period of 36 months, so mentioned in the Agreement, was the tentative time period for the delivery of possession and was subject to force majeure circumstances.  No date was ever committed by them for the delivery of possession of the plot.  The Company could not hand over the possession due to reasons of Global meltdown of the economy worldwide wherein the foreign investors, as anticipated by them, refrained from any kind of investment in India and there was a total cash crunch throughout.  They are facing extreme financial hardship due to recession in the realty market and all those circumstances were beyond their control.  They are also facing problems with regard to providing electricity in the said area as P.S.P.C.L. (hereinafter referred to as, “Power Corporation”) has been raising objections on one pretext or the other.  They were to provide electricity Sub Station of 66 KV.  On account of the possession of some of the flats and plots already given by them, they made a request to the Power Corporation to provide at least 1 MW connection to the Project in the year 2010 but it kept on raising objections regarding the compliance of various formalities and those were duly complied with by the Company.  It further imposed the condition of Bank guarantee for providing of 1 MW connection, vide its letters dated 19.12.2014 and 2.3.2015.  On account of the non-providing of that connection the rest of the development work and the amenities have been delayed.  They are dependent on Power Corporation for the supply of electricity and other amenities in the Project. Despite all the odd conditions they are making every endeavour to complete the development work at the site and are making sincere efforts to hand over the possession of the plot to the complainant. The construction work is in full swing and the possession shall be shortly handed over to him.  As per clause 4(c) of the Agreement, they have made themselves liable to pay charges at the rate of Rs.50/- per square yard per month of the area of the plot, for the period of delay in offering the possession beyond the period of 36 months but the payment of those charges are subject to any reason beyond their control and those are to be adjusted at the time of issuance of final notice of possession.  The complainant is merely an investor, who had invested in the plot for resale purposes. He could not resell the said property due to slump in the real estate market and, as such, he has frivolously sought this legal remedy before this Commission. As he had purchased the said plot for commercial purposes, so he does not fall within the ambit of the definition of the ‘consumer’, as per the Act.    No cause of action has accrued to him to file the complaint and the same is not maintainable under the provisions of the Act.   No deficiency in service can be attributed to them, as throughout they discharged all their services to the complainant in a bona fide manner.  They also averred that this Commission has no territorial jurisdiction to entertain this complaint as the Agreement dated 26.5.2008 was executed at New Delhi and the demand for the payment had been raised from their Gurgaon Office, which has not been impleaded as a party.  Even the payments were made by the complainant through cheques; which were payable at New Delhi and were deposited in their Bank account at that place itself.  The facts, as narrated in the complaint, do not constitute “consumer dispute’ as defined in Section 2(1) (e) of the Act.  The complainant is seeking relief, which is not covered under the definition of “consumer dispute”.  They raised issues relating to contractual matter arising out of the terms and conditions of the Agreement and the interpretation thereof and the same can be adjudicated upon only in civil proceedings. The complainant has not impleaded the original allottee of the said plot in question i.e. Dr. Davinder Gupta and sons as party and as such, the complaint deserves to be dismissed for non-joinder of necessary parties. They prayed for the dismissal of the complaint with heavy costs; being false, frivolous and vexatious.

4.      For proving the allegations made in the complaint the complainant proved on record the affidavit of his Special Attorney Ex.C-A and documents Ex.C-1 to Ex.C-14/A.  On the other hand, the opposite parties proved on record the affidavit of their Authorized Representative Lalit Gupta, Ex.OP-A and documents Ex.OP-1 to Ex.OP-5.

5.      We have carefully gone through the averments of both the sides, evidence produced by them in support of their respective averments and have heard learned counsel on their behalf and have also gone through the written arguments submitted by the learned counsel for the complainant. 

6.      It was submitted by the learned counsel for the complainant that all the allegations made in the complaint stand proved from the affidavit of the Special Attorney of the complainant and the documents proved on the record and some of those allegations also stand proved from the admissions made by the opposite parties.  It is proved on the record that the complainant purchased the plot from Davinder Gupta and Sons, Realtors; who was one of the authorized agents of the opposite parties.  Thereafter the same was transferred in his name.  The letter for transfer of allotment was issued on 7.4.2008 Ex.C-2 whereas the Agreement Ex.C-3 was signed on 26.5.2008.  The total price of the plot was Rs.51,12,900/- and he paid all the instalments in time and in all paid Rs.49,48,650/-; which comes to 95% of the total sale price.  These facts have not been disputed by the opposite parties.  After having paid the instalments, as per the Payment Plan, he became entitled to the possession of the plot; which was to be delivered to him within 36 months of the date of the execution of the Agreement and that period expired on 26.5.2011.  Even after that the complainant waited for about more than four years but the possession of the plot was not delivered and he was compelled to file the complaint.  He noticed that the construction/development of the Project had been stopped at the site by the opposite parties. In these circumstances he is entitled to the refund of the amount so deposited by him, along with interest.  For the delay in delivering the possession he is entitled to the penalty as stipulated by Section 4(c) of the Agreement. By not delivering the possession of the Plot by the agreed date the opposite parties committed deficiency in service, as a result of which the complainant suffered harassment and mental agony; as for all this time he was hoping to have his own plot.  On that account he is entitled to compensation as claimed in the complaint.

7.      On the other hand, it was submitted by the learned counsel for the opposite parties that the period of 36 months as mentioned in the Agreement was the tentative period and that period was subject to force majeure circumstances and other circumstances beyond the control of the opposite parties.  From the evidence produced by them, it stands proved that the completion of the Project was delayed on account of the non-providing of additional connection of 1 MW by the Power Corporation though strenuous efforts were made by them to get such a connection for completing the Project.  When such is the position, it cannot be said that the opposite parties committed any deficiency in service by not delivering the possession of the flat to the complainant.  They were liable to pay the penalty, as stipulated by the Agreement, in case there were no such circumstances beyond their control.  The complainant is not entitled to any interest on the amount deposited by him as there was no such stipulation in the Agreement.  The opposite parties cannot be penalized twice by imposing the penalty stipulated in the Agreement and by issuing direction to pay the interest on the deposited amounts.  She further submitted that the opposite parties are making every effort to complete the Project and immediately after the completion thereof the possession of the plot shall be delivered to the complainant.  She also submitted that since the complainant is a re-allottee, so he does not fall within the ambit of ‘consumer’.

8.      So far as the submission of the learned counsel for the opposite parties that the complainant being a re-allottee is not covered within the ambit of the definition of ‘consumer’ is concerned, it has not been disputed by the learned counsel for the complainant that the payment of booking amount of Rs.20,72,352/- was made through Davinder Gupta and Sons, Realtors. Thereafter the same was transferred in his name, vide letter dated 7.4.2008, Ex.C-2 and Buyer’s Agreement Ex.C-3 was executed in his favour on 26.5.2008. As per the contents of that letter the opposite parties confirmed that the amounts which were paid by that Davinder Gupta and Sons, Realtors, were credited to the account of the complainant.  By no stretch of imagination it can be held that he is not covered within the ambit of the definition of ‘consumer’; as the amount which was so paid by Davinder Gupta and Sons, Realtors, was duly credited in his name. After letter dated 7.4.2008 Ex.C-2 was issued and the Agreement Ex.C-3 was executed in favour of the complainant he stepped into the shoes of the original allottee and became entitled to all the benefits under the Agreement.   

9.      It is the admitted case of the parties that the complainant purchased the plot from Davinder Gupta and Sons, Realtors. Thereafter the same was transferred in his name.  The letter of transfer of allotment was issued on 7.4.2008 Ex.C-2 whereas the Agreement Ex.C-3 was executed on 26.5.2008.  The Payment Plan is annexed with that Agreement and a perusal thereof shows that it was Time Linked Payment Plan.  For proving that the payments were made as per that Schedule, the complainant proved on record the Receipts dated 13.9.2008, 5.12.2008, 18.2.2009, 27.5.2009, 15.9.2009, 25.11.2009, 3.3.2010, 31.5.2010, 28.8.2010 as Ex.C-4 to Ex.C-12 and Statement of Account as Ex.C-13. As per this Statement of Account, all the payments as per the Schedule have already been paid by the complainant.  As per clause 4(a) of the Agreement Ex.C-3, after those payments had been made, the possession of the plot was to be offered to him by the opposite parties within 36 months of the signing of the Agreement.  The same was signed on 26.5.2008 and, as such, the possession of the Plot was to be delivered to him on or before 26.5.2011.  It is a fact that it is mentioned in the said clause itself that the delivery of possession of the plot within that period was subject to force majeure circumstances and the opposite parties have tried to take the benefit of that proviso.  The question arises, whether they have been able to prove on the record that the non-delivery of possession of the plot to the complainant within the period of 36 months was on account of force majeure circumstances or circumstances beyond their control?

10.      The word “force majeure” has been defined in Concise Law Dictionary by P. Ramanatha Aiyar as “irresistible force or compulsion; circumstance beyond one’s control”.  It was held by the Hon’ble Apex Court in AIR 1961 SC 1285 (M/s Dhanrajamal Gobindram v. M/s Shamji Kalidas and Co.) that force majeure means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal wave, flood, lightning, explosion, fire and any other happening which the lessee would not reasonably prevent or control.

11.    To take refuge under the force majeure circumstances, it was incumbent on the part of the opposite parties to prove that the alleged circumstances were beyond their control.  There may be worldwide recession and crunch in the real estate business but the opposite parties were bound to fulfil their commitment under the Agreement for developing the Project and delivering the possession of the plot to the complainant within the agreed time.  These were the circumstances, which could have been foreseen and should have been kept in mind while agreeing upon the terms and conditions so mentioned in the Agreement.  If these are to be taken as an excuse to wriggle out of the condition so imposed in the Agreement, then in every case such a plea would be taken as an excuse for not performing their part of the contract, by the Developers. 

12.    The other such circumstance, which has been argued before us and which has been so mentioned in the written reply of the opposite parties, is that they had applied for additional connection of 1 MW to the Power Corporation in the year 2010 but it failed to provide the same; which resulted in the delay in the completion of the Project.  It stands proved from the documentary evidence produced by the opposite parties and which consists of the letter dated 9.9.2011 Ex.OP-5 that they did apply to the Power Corporation for the release of 1 MW connection on 28.9.2010 and the same was not provided and they had been repeatedly writing to the Power Corporation for the release thereof.  It may be so but the question to be determined is, whether the non-completion of the Project was on account of the non-supply of that additional connection of 1 MW?  Lalit Gupta, Authorized Representative of the opposite parties made a detailed deposition in his affidavit Ex.OP/A regarding the applying of that additional connection to the Power Corporation and the non-providing thereof by the Power Corporation on one pretext or the other and that period of 5 years has already consumed for obtaining that additional connection.  He also deposed in that affidavit that on account of the non-availability of that electricity the rest of the development work and amenities have been delayed, as they were dependent upon the Power Corporation for the supply of that electricity and further amenities in the project.  He also deposed in that affidavit that every endeavour is being made to complete the development work at the site and sincere efforts are being made for handing over the possession of the plot to the complainant. 

13.    It is not the case of the opposite parties that they could not start with the Project on account of the non-providing of additional electric connection by the Power Corporation and according to them, the rest of the development work has been delayed.  This Lalit Gupta is not a technical person to make a statement that on account of the non-supply of additional electric connection the development of the Project was delayed.  Such a fact could have been proved only by a technical person, who was also required to disclose as to how such electricity was required for the development of the Project and that there was no other alternative with the opposite parties to complete the Project.  Such a circumstance cannot be said to be force majeure circumstance or a circumstance beyond the control of the opposite parties. 

14.    The opposite parties had been collecting huge amounts from the customers for the development of the Project and we wonder where that amount had been going.  They are not to play the game at the cost of others.  When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement.  Thus, the delay in not delivering the possession of the plot within the agreed period of 36 months amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.

15.    The Special Power of Attorney holder of the complainant deposed in his affidavit Ex.CA that at present the construction/development of the Project is totally stopped without any reason for the last more than six months and whenever he tried to know the status of the construction/development of the Project, every time the opposite parties and their officials made excuses on one pretext or the other.  He also deposed that when he visited the site and made those enquiries from the officials, they failed to give any satisfactory reply regarding the stoppage of the development/work and there is no sign of basic amenities.  He also deposed that the construction/development of the project has been stopped by the opposite parties intentionally which shows their mala fide intention. 

16.    To rebut this evidence of the complainant, Lalit Gupta deposed in his affidavit Ex.OPA that the construction work at the site is in full swing and he is making diligent and sincere efforts to complete the construction work and hand over the plot to the complainant.  There is no corroborative evidence in support of that deposition.  The opposite parties could have produced the recent photographs of the site for proving all those facts but have failed to do so.  In the absence of such corroborative evidence it cannot be held that the deposition made by the Special Attorney of the complainant in his affidavit stands rebutted by the affidavit of Lalit Gupta.  It stands proved that the construction work has been totally stopped by the opposite parties and there is no possibility of the delivery of possession of the plot to the complainant in near future.  No useful purpose will be served by issuing a direction to the opposite parties to deliver possession of the plot to the complainant. In these circumstances when the opposite parties are not in a position to fulfil their part of the Agreement, they cannot retain the amount so deposited by the complainant.

17.    For the deficiency in service on the part of the opposite parties the complainant is entitled to the compensation for the harassment and mental agony suffered by him on account of the betrayal by the opposite parties in shattering his hope of getting the plot by waiting for all this period.

18.    Accordingly the complaint is allowed partly and following directions are issued to the opposite parties:-

i)        to refund the amount of Rs.49,48,650/-, along with interest at the rate of 12% per annum from the date of deposit of different amounts till the payment thereof;

ii)       to pay Rs.4,00,000/-, as compensation for the harassment and mental agony suffered by the complainant; and

iii)      to pay Rs.11,000/-, as costs of litigation.

The compliance of this order shall be made by the opposite parties within one month from the date of receipt of the certified copy of this order and failing that they shall be liable to pay interest on the said amount of Rs.4,00,000/- at the rate of 12% per annum from the date of this order till the date of payment.

19.    The arguments in this case were heard on 5.10.2016 and the order was reserved.  Now, the order be communicated to the parties.

20.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.                                               

 

                                                                                                                               (JUSTICE GURDEV SINGH)

                                                                          PRESIDENT

 

 

 

                                                              (VINOD KUMAR GUPTA)

                                                                             MEMBER

October 14, 2016

Bansal