Chandigarh

DF-I

CC/835/2015

Vikrant Duggal - Complainant(s)

Versus

Unitech Ltd. - Opp.Party(s)

H.S. Saini

09 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

 

                               

Consumer Complaint No.	:	CC/835/2015
Date of Institution	:	15/12/2015
Date of Decision	:	09/08/2016

 

 

1.     Vikrant Duggal s/o Sh. A.P. Duggal,

2.     Mehak Duggal d/o A.P. Duggal,

        Both resident of H.No.66, Phase-VI, S.A.S. Nagar, Mohali.

        (Purchasers of Plot No.027, First Floor/Block-A) (Approx. 160 sq. mtrs. (approx. 191.63 sq. yards), “UNIHOMES” (SECTOR-107), “UNIWORLD CITY, Sector-107, MOHALI”).

…..Complainants

V E R S U S

1.     Unitech Limited, S.C.O. 189-191, Sector 17-C, Chandigarh, through Managing Director/Authorised Signatory (Regd. Office at Basement, 6, Community Centre, Saket, New Delhi-110017).

2.     Alice Developers Private Limited, Regd. Office at Basement, 6, Community Centre, Saket, New Delhi-110017 through Managing Director/Authorised Signatory.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	SURESH KUMAR SARDANA	MEMBER

       

 

                                                                       

ARGUED BY	:	Sh. H.S. Saini, Counsel for complainants alongwith complainant No.1 in person
	:	Smt. Vertika H. Singh, Counsel for OP-1
	:	Ms. Nidhi Ayer, Counsel for OP-2

 

PER DR. MANJIT SINGH, PRESIDENT

1.         Sh. Vikrant Duggal and Ms. Mehak Duggal, complainants have brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Unitech Limited and another, Opposite Parties (hereinafter called the OPs), for directing the OPs to pay charges @ Rs.5 per sq. ft. per month on saleable area of floor 100.6 sq. mtrs. (approx.) (1077 sq. ft. approx.) in terms of clause 4.c of the Buyer’s agreement dated 6.11.2009 w.e.f. 1.11.2012 till the date of handing over the physical possession alongwith interest @ 18% per annum; compensation of Rs.3,00,000/- with interest @ 18% per annum for causing mental agony and harassment and litigation expenses to the tune of Rs.25,000/-.

                The facts, in brief, are that in the year 2008-09, OP-1 in joint venture with OP-2 floated the residential project namely “UNIHOMES” (Sector 107) “UNIWORLD CITY, Sector-107, Mohali” and the complainants jointly agreed to purchase plot No.027, First Floor/Block-A (Approx. 160 sq. mtrs/approx.191.63 sq. yards) in the said project against the total agreed sum of Rs.23,91,304/- which was allotted to them vide sale agreement/allotment letter dated 6.11.2009. As per the said agreement, after deposit of Rs.2,12,967/- the next installment of Rs.2,40,873/- was payable within a period of 3 months of the allotment and the balance payment due was to be paid on commencement and various stages of construction in terms of construction linked installment plan as per Annexure A of the agreement/allotment letter. As per clause 2.c of the allotment letter, in the event of failure or delay to make the payment of due installment, the OP was liable to charge interest @ 18% p.a. compounded quarterly for the period of delay and as per clause 2.d., time was the essence of the contract.  As per clause 4.a, the OPs had proposed to hand over the possession within a period of 36 months (3 years) from the date of signing of allotment letter i.e. till November, 2012. It was also agreed that that the developer shall be liable to pay charges @ Rs.5 per sq. ft. per month of the saleable area of the floor for the period of delay in offering the possession of the floor beyond the period indicated in clause 4.a.  Alongwith the application form the complainants initially deposited a cheque of Rs.2,13,000/- on 30.9.2009 and another amount of Rs.2,40,840/- was paid by cheque dated 30.12.2009.  Since, till the filing of the instant complaint, no construction had been started by the OPs, therefore, they never demanded the rest of the sale price and even after lapse of more than 6 years from the date of allotment, the possession of the site in question has not been handed over to the complainants. Accordingly, complainant No.1 addressed three different registered letters dated 26.8.2015 to the OPs asking them to provide details of progress of the project and pay interest and compensation as per terms and conditions of the agreement, but, the OPs failed to respond. Hence, this consumer complaint claiming the reliefs mentioned above.

2.         OP-1 filed its written statement resisting the claim of the complainants taking the preliminary objections, inter alia, that this Forum does not have the territorial jurisdiction  to adjudicate upon the present complaint as the buyer’s agreement with respect to the flat in question was executed between the parties at New Delhi, demand for payment was raised from Gurgaon office on behalf of OP-2 and final payments were also made to the Gurgaon office; this Forum does not have pecuniary jurisdiction to adjudicate upon the complaint; the complainants do not fall under the definition of ‘consumer’ under section 2(d) of the Consumer Protection Act, 1986 and the complainants are simply investors who invested in the said flat for resale purposes; the facts narrated by the complainants in the complaint do not constitute a ‘consumer dispute’ as defined in section 2(e) of the Consumer Protection Act. It is pleaded that OP-1 had limited role qua the buyer’s agreement dated 6.11.2009 and the responsibility to construct the said flat and hand over possession to the complainants within the tentative timeframe of 36 months was solely of OP-2.  It was only the developer which was liable to pay charges for the delay in handing over of the possession beyond the period of 36 months. Denying other contentions of the complainants, OP-1 prayed for dismissal of the complaint.
3.         OP-2 in its separate written statement took similar preliminary objections as taken by OP-1.  On merits, it is pleaded that the complainants are merely investors who had invested in the said flat for investment purposes. The OP was liable to hand over the possession of the flat within 36 months from the date of signing of the agreement subject to force majeure circumstances. Hence, the time frame of 36 months was not absolute and was tentative.  It is pleaded that the OP could not hand over the possession of the flat due to reasons of global meltdown of the economy worldwide wherein the foreign investors, as anticipated by the OP, refrained from any kind of investment in India and there is a total cash crunch throughout. The OP is facing extreme financial hardship due to recession in the reality market.  All these circumstances were beyond the control of the OP.  The OP was also facing problems with regard to providing electricity in the said area as PSPCL had been raising objections on one pretext or the other. It is pleaded that as per clause 8.b of the agreement, the OP is entitled to reasonable extension of time of agreed date for delivery of possession of the flat.  Denying other contentions of the complainant, OP-2 also prayed for dismissal of the complaint
4.         Separate rejoinders were filed by the complainants denying all the averments in the written statements of the OPs.
5.         The parties led evidence in support of their contentions. 
6.         We have gone through the record and heard the arguments addressed by the learned Counsel for the parties.
7.         The learned counsel for the complainants argued that as per clause 4.c. of the buyer’s agreement, OPs be directed to pay charges @ Rs.5/- per sq. ft. per month of the saleable area of the floor beyond the period of 36 months indicated in clause 4.a. of the agreement agreed between the parties. He also argued that the complainants have to suffer harassment and mental agony because of non-compliance of the agreement by the OPs. As such, the complainants are entitled to adequate compensation to the tune of Rs.3.00 lakhs besides interest and litigation expenses.  He further argued that the OPs have failed to even complete the construction within the stipulated period. Till today, OPs are not in a position to hand over the possession to the complainants as per the agreement. 
8.         The learned counsel for the OPs, on the other hand, argued that the consumer complaint filed by the complainants is not maintainable as the complainants purchased the plot in question for reselling the same for profit and they had no intention to reside in the same particularly when the complainants have a spacious residential house at Mohali.  Since the complainants wanted to get more profit by resale of the plot, so the transaction is a commercial transaction and there is no relationship of consumer and service provider between the complainant and the OPs. It is further argued that there is no consumer dispute in the present complaint as the agreement for sale/purchase of a plot is not a consumer dispute and, as such, the complainants are not consumers.  It is further argued that this Forum has no territorial as well as pecuniary jurisdiction to try the dispute between the parties. It is further argued that as per clause 2.g. of the buyer’s agreement, in the event the purchaser(s) fail(s) to pay any installment(s) with interest within 90 days from the due date, the developer shall have the right to forfeit the entire amount of booking/earnest money/registration money deposited by the purchaser(s) and in such a case, the allotment of the said floor shall stand cancelled and the purchaser(s) shall be left with no right or lien on the said floor and the Developer would be free to sell the same.  Thus, in this way, the complainants have been left with no right or lien in the allotment of the plot as they have failed to adhere to the payment schedule. It is also argued that the buyer’s agreement was subject to force majeure circumstances, as such, the time frame of 36 months was not absolute and it was a tentative time frame. It is further argued that since the necessary permission from the PSPCL was not received in spite of efforts, as such the agreement could not be performed by the OPs due to force majeure circumstances. It is further argued that the complainants themselves have failed to pay the installments as per the scheduled time frame, as such they are left with no right or lien to bring this consumer complaint claiming penalty and compensation etc. and the consumer complaint be dismissed.
9.         To prove their status as consumers and that of the OPs as service providers, the complainants have pleaded that at the time of allotment, complainant No.2 was unmarried and in order to settle either himself (complainant No.1) or complainant No.2 in the tricity of Mohali after her marriage, the present site/plot No.027, First Floor/Block-A in the project of the OPs was purchased by the complainants jointly. Therefore, both the complainants, being brother and sister, got allotted the plot in question jointly for residential purposes of either of them. Thus, the complainants have clearly pleaded that their intention was to purchase the plot for their residential purposes.  Even though the complainants were having a residential house at Mohali then also since complainant No.2 was unmarried and she required the accommodation for her residence after marriage, as such, in case the plot was booked jointly by both the complainants, it cannot be inferred that the complainants purchased the plot for resale for profit.  The pleadings of the complainants are sufficient to express their intention to utilize the plot for their residential purposes.  There is no other evidence on the record to suggest that the complainants purchased the plot in question for resale.  There is also no evidence on the record that the complainants are property dealers or previously also have purchased the plots for the purpose of sale with an intention to gain huge profits. The complainants have not demanded their money back; rather they are interested in the possession and till the possession is delivered they have sought compensation as per clause 4.c. of the agreement. So, it is implied that the complainants had no intention to resell the plot, but, they wanted to use the same for residential purposes. In the absence of any cogent documentary evidence, brought on record by the OPs to the effect that the complainants purchased the property for investment/commercial purpose, the objection of the OPs is not sustainable in the eyes of law and the same, being devoid of merit, is rejected.
10.         The argument of the learned counsel for the OPs that the agreement for sale-purchase of the plot in question is not a consumer dispute is also devoid of merit.  It is not the case of the OPs that the complainants purchased the plot in an open auction, on “as is where is basis”, without any further promise of OPs of providing amenities/facilities, and developing the area, where the unit, in question, is situated.  In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). The facts and circumstances of the case clearly prove that the complaint involves a consumer dispute and the same is maintainable.
11.         OP-1 is carrying on its business at S.C.O. 189-191, Sector 17-C, Chandigarh and its registered office is at New Delhi. Even though the property is situated at Mohali, this Forum has the territorial jurisdiction to decide the dispute as the OPs are running their office for gain within the territorial jurisdiction of this Forum. The buyer’s agreement (Annexure C-1) clearly proves that Unitech Limited, a Public Limited Company duly incorporated under the Companies Act, 1956, is having its Marketing office at SCO 189-90-91, Sector 17C, Chandigarh and its registered office at New Delhi. Since the OPs have their marketing office at Chandigarh, so this Forum has the territorial jurisdiction to decide the present complaint. 
12.         So far as the argument of the learned counsel for the OPs that this Forum, has no pecuniary jurisdiction, the same is also devoid of merit because the complainants have not claimed the relief of possession and have claimed the relief as per clause 4.c. of the agreement because of delayed possession, which is well within the pecuniary jurisdiction of this Forum.  So, we have no hesitation to hold that this Forum has the territorial as well as the pecuniary jurisdiction to decide the present consumer complaint. 
13.         The argument of the learned counsel for the OPs that the complainants have not made the payment as per the time schedule, as such the OPs have the right to forfeit the earnest money and the contract between the complainants and the OPs has come to an end, though seems to be attractive but the same is without any force.  The complainants have made the payment of Rs.2,13,000/- by cheque on 30.9.2009 at Chandigarh i.e. Unitech Ltd. SCO 189-90-91, Sector 17-C, Chandigarh and a sum of Rs.2,40,840/- was paid vide cheque dated 30.12.2009.  Rest of the sale consideration was payable on commencement and various stages of construction and in terms of construction linked installment plan as per Annexure A.  There is no evidence that after the expiry of the period of three months what steps were taken by the OPs to complete the construction nor there is any evidence that they have taken further steps. As per Annexure A, the complainants were bound to make the payments after the expiry of three months but a duty was cast on the OPs to start the construction. No evidence is led by the OPs as to what steps were taken by them to start the construction and the stage at which the complainants were asked to make the payment, but, they have failed to make the payment.  There is no evidence on record to prove that the OPs commenced the construction work at the site.  As such, the complainants were not obliged to make the further payment. There is no delay or default on the part of the complainants to make the balance payment.
14.         The OPs have pleaded that the buyer’s agreement was subject to force majeure circumstances and have taken the plea that the PSPCL has failed to provide the electric connection and imposed various objections regarding release of 1 MW connection on one pretext or the other, which prevented the OPs to complete the project.  The plea of force majeure circumstances has been taken by the OPs just to defeat the rightful claim of the complainants as the OPs have failed to indicate the circumstances which were beyond their control. To take the plea of force majeure, the OPs were required to prove that the circumstances were beyond their control and in spite of best efforts, they were not in a positon to complete the construction work.  If the PSPCL and other authorities raised certain objections while releasing the electric connection, then these objections cannot be said to be force majeure circumstances. It was for the OPs to remove those objections and get the electric connection released.  Force majeure circumstances are such which are beyond the control of a human being like a war situation or a total failure of the government machinery or natural calamities, but, the OPs have failed to plead any such circumstances which attract the plea of force majeure. Hence, the argument of the learned counsel for the OPs that the construction could not be completed because of force majeure circumstances is devoid of merit.
15.         Admittedly, the possession has not been delivered to the complainants by the OPs till now. Even the OPs have failed to produce any evidence with regard to the status of the construction work.  The complainants opted for the construction linked installment plan.  OP-2 in para 5 (on merits) of its written statement has pleaded that in the present case the company could not hand over the possession of the flat due to reasons of global meltdown of the economy worldwide wherein the foreign investors, as anticipated by the OP, have refrained from any kind of investment in India and there is total cash crunch throughout.  The pleas of recession in the reality market and that the connection could not be obtained because non-cooperative attitude of the PSPCL were also taken and there was also correspondence with GMADA in this regard.  The plea that the foreign investors refrained from any kind of investment in India is devoid of merit because there was no term and condition that the foreign investors would come to India and only then the project would be completed. Recession in the market itself is no ground for stopping the construction work and denying the rightful claim of the complainants. Thus, it is proved that there is delay on the part of the OPs in delivering the possession to the complainants. As per clause 4.a. of the buyer’s agreement dated 6.11.2009 (Annexure C-1), the possession of the floor in question was proposed to be offered to the complainants within 36 months of signing of the agreement, subject to force majeure circumstances. The aforesaid period of 36 months expired on 5.11.2012.  There are no circumstances leading to force majeure. Since the OPs have failed to deliver possession of the unit complete in all respects within 36 months, as such, they are deficient in service. Thus, the delay is clearly attributable to the OPs from the stipulated date i.e. 5.11.2012.  Since there is delay on the part of the OPs in delivering the possession of the unit within the stipulated period, therefore, the complainants are entitled to compensation as per clause 4.c. of the agreement. 
16.         When the Consumer Foras have been vested with the jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainants. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Reliance in this regard can be placed on the judgment in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC). In the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of OPs, as they failed to deliver the actual physical possession of unit in question to them (complainants), by the promised date i.e. 5.11.2012. The complainants purchased the unit, with the hope to live in, but their hopes were dashed to the ground. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the OPs. As such the complainants are also entitled to compensation for mental agony and harassment suffered by them and interest on the amount as per clause 4.c of the agreement.
17.         Though it is pleaded and argued that it was the responsibility of OP-2 to develop the area, complete the development works and hand over the possession, but, both the OPs joined hands to complete the project and entered into an agreement with the complainants to hand over the possession within 36 months.  Both the OPs were hands in glove with each other, as such, they cannot be allowed to shift the burden of handing over the possession on one another.  It was the joint responsibility of the OPs to deliver the physical possession as per the agreement and also their joint liability to pay the penalty as per clause 4.c. of the agreement. Hence, both the OPs are jointly and severally liable to pay the compensation to the complainants.
18.         In the light of the aforesaid discussion, the present consumer complaint deserves to succeed. The same is accordingly partly allowed. The OPs are jointly and severally directed as under:-

(i)     To pay to the complainants charges @Rs.5/- (Rupees five only), per sq. ft. per month of the saleable area of the floor in question, from 6.11.2012 (i.e. after completion of 36 months from the date of execution of the Buyer’s Agreement), as per Clause 4.c of the said Agreement, till the possession is delivered to the complainants, alongwith interest @9% per annum from the date penalty for each month w.e.f. 6.11.2012 became due.

(ii)    To pay Rs.50,000/- as compensation to the complainants for the unfair trade practice and harassment caused to them

(iii)   To also pay a sum of Rs.11,000/- to the complainants as litigation expenses.  

19.         This order be complied with by the OPs within two months from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
20.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-		Sd/-
09/08/2016	[Suresh Kumar Sardana]		[Dr. Manjit Singh]
hg	Member		President