Delhi

StateCommission

CC/433/2016

GIRISH BALACHANDRAN AND ANR. - Complainant(s)

Versus

UNITECH LTD. & ANR. - Opp.Party(s)

DEEPAK KUMAR

08 Jan 2019

ORDER

 

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 08.01.2019

Date of Decision : 16.01.2019

COMPLAINT NO.433/2016

In the matter of:

 

1. Girish Balachandran,

S/o. Naryana Balachandran,

R/o. S-306, (First Floor),

Uppal Southend,

Sohna Road,

•  

Haryana, India.

 

2. Vimala Balachandran,

S/o. Naryana Balachandran,

R/o. S-306, (First Floor),

Uppal Southend

Sohna Road,

•  

Haryana, India.……Complainants

 

Versus

 

1. M/s. Unitech Ltd.,

Through its Director,

Registered Office 6 Community Centre,

Saket, new Delhi-110017.

 

2. Shri Ramesh Chandra,
3.  

Unitech Ltd., (Registered Office),

6 Community Centre,

Saket, New Delhi-110017.

 

3. Shri Ajay Chandra,

Managing Director,

Unitech Ltd., (Registered Office),

6 Community Centre,

Saket, New Delhi-110017.

 

 

4. M/s. Unitech Ltd.,

Through its authorised Signatory,

Real Estate Division (Market),

Ground Floor,

Signature Towers,

South City I, NH-8,

Gurgaon-122001, Haryana.………Opposite Parties

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. The complainants are son and mother. Their case is that Director General, Town and Country Planning, Haryana granted license bearing no.66 dated 21.07.11 for development of a Group Housing Complex on a parcel of land admeasuring 100.618 acres to be known as “Crestview”, Sector-70, Gurgaon, Haryana. OPs offered flats to be built on the above mentioned land to general public.Smt. Anita Singh Yadav applied for allotment of residential apartment vide application  dated 16.01.12. OP allotted flat no.1203 (two bed room) Tower-B-1 for Rs.74,16,575/-.
2. On 18.01.13 Smt. Anita Singh Yadav entered into an agreement to transfer the aforesaid apartment in the names of complainants. The possession was to be delivered within 36 months from the date of signing the agreement. Article 4 (c) of agreement provided that in case there was a delay in offering possession, the OP was to pay compensation @Rs.5 per sq. ft. per month. The allotment was transferred in the name of complainants vide letter dated 18.03.13 issued by OP. The sum of Rs.23,84,594/- was credited in the account of complainants. Administrative charges of Rs.1,05,675/- were paid to the OP. The complainant did not receive any demand notice for making further payment. Transfer of allotment letter dated 18.03.13 provided that first payment was due on construction which was to the tune of Rs.8,44,957/-. Since no construction started at site, no further demand was raised.
3. In April, 2015 complainant tried to check the status of the project and enquired from the OP which revealed that construction had yet not commenced  and there was no likely hood of its starting in near future. As a matter of fact the money collected for the project in question has been transferred to other projects. The complainants sent email dated 23.05.15 and 22.06.15 to the OPs requesting them to refund the amount paid towards registration of the flat, service tax developer charges with interest @24% per annum. They also claimed damages for having lost opportunity to have a flat to live in by  2015-16.Complainant sent a legal notice dated 23.11.15 for refund of Rs.47,81,316/- out of which Rs.24,90,269/- was the principal amount and Rs.22,41,238/- was interest @24% per annum. It also included cost of notice to the tune of Rs.1 lakhs. Hence this complaint for directing the OPs to pay Rs.10 lakhs as compensation towards mental stress and agony, refund Rs.24,90,269/- which is the principal  amount paid by complainants and Rs.22,41,238/- as interest @24% per annum, cost of notice amounting to Rs.1 lakh. Complainant have also paid for directions to the OP to pay Rs.6,470/- per month  for delay in project under clause 4 (c ) (ii) of the agreement from 19.04.15 till date i.e. Rs.77,640/-.
4. The OP-1 filed WS raising preliminary objection that complaint is bad in law, there is  mis-joinder of parties as much as they have wrongly impleaded Chairman as  OP-2, Managing Director as Op-3. It is settled law that Chairman and Director of the company can not be treated as agents of the company, in the conventional sense of agent, vis-a-vis third party. The complainant do not fall within the definition of consumer. The same merit dismissal with exemplary cost under Section 26 Consumer Protection Act. This  Commission has no territorial jurisdiction. The parties, by agreement, have conferred exclusive jurisdiction upon courts at Gurgaon. Clause 13 of the agreement is relevant for the purpose. The Ops placed reliance on decision of Hon’ble Supreme Court in A.B.C. Laminart Pvt. Ltd. vs. A.P. Agencies, AIR 1989 SC 1239 in support of the said plea. As per Section 16 CPC  case relating to immoveable property are to be filed at the place where the property is located. Since in the present case property situated at Gurgaon, this Commission has no territorial jurisdiction. As per decision of National Commission in Indian Airlines vs. R.K. Upadhyay 1991 (1) CPR 46 compensations can be for any loss or injury suffered. Thus proof that there was negligence and had caused loss or injury is sine qua non  for award of compensation. As per decision of National Commission in Lakshmi Cotton Traders Ltd. vs. CWC 3 (1996) CPJ 22 compensation can be on rational basis  on consideration of documentarily and oral evidence showing the extent of loss. To the same effect is decision of Ghaziabad Development Authority vs. Balbir Singh JT 2004 (5) SC 17.
5. Clause 2.g of terms and conditions of application form provided that in the event allottee failed to pay any installment with interest within 90 days, from the due date, the developer has a right to cancel the allotment and forfeit the entire amount of earnest/ registration money, allottee shall be left with no right or lien on the said apartment and the developer shall be free to sell the same. For this reference has been made to decision of Hon’ble Apex Court in Huda  vs. Kewal Krishan Goel (1996) SCC (4) 249.
6. On merits the OP took same defence, It also referred to clause 4.c regarding holding charges.
7. The complainants filed rejoinder affidavit. They also filed affidavit of complainant no.1 in evidence repeating the averments made in the complaint. They exhibited the documents relied upon by them as Exbt. C-1/1 to Exbt. C-1/15.
8. On the other hand the OP filed affidavit of Suman Mattu, Manager Legal in their evidence. The said affidavit proceeded on lines of WS.
9. Both the parties have filed written arguments.
10. I have gone through the material on record and heard the arguments. On 08.01.19 the counsel for the complainant gave a statement that complainants confined their claim of interest to 10% per annum and they also gave up the relief of compensation for mental agony and harassment. This was done so with a view to meet the plea of the OP that the case was beyond pecuniary jurisdiction of this commission in view of decision of three member bench of the National Commission in Amrish Shukla.
11. The objection of jurisdiction being barred by agreement is not tenable. In this regard, I  have the privilege of going through decision of National Commission in Polymax Plas Machine vs. Apple Plas IV (2006) CPJ 172, Neha Singal vs. Unitech Ltd. II (2011) CPJ 88 NC. Similar view was taken by national Commission in Shanti vs. Ansal Housing 2002 SCC online NCDRC 18. It was held that CPC is not applicable for purpose of determining territorial jurisdiction. Consumer Protection Act itself deals with the question of jurisdiction.
12. In FA no.1637/16 titled as  Exact Developers and Promoters vs. Rahul Jain decided on 14.02.17 National commission held that mention of district is not relevant  when the matter lies in the jurisdiction of State Commission. In the case in hand the agreement provides for jurisdiction of Gurgaon Court. In Gurgaon there is only a District Forum  and there is no State Commission. The case definitely pertains to jurisdiction of State Commission.
13. In III (2017) CPJ 8 State Commission Union Territory  Chandigarh held that  agreement excluding jurisdiction or confining the jurisdiction is not valid.
14. The objection of the OP regarding forfeiture of earnest money is not tenable because it is not the case of the OP that they have completed  project or offered possession to the complainant. For the same reason reference to clause 4.c pertaining to holding charges is useless.
15. The claim of the complainant for compensation for delay in possession is also unfounded as that can be only when possession is given. Since in the present case possession is not being given, there is no question of compensation for delayed possession.
16. Counsel for the complainant  relied upon decision of the National Commission in CC No.1442/16 titled as Arvind Nebitia vs. Unitech Ltd. decided on 19.07.17. The said case pertains to same project named Crestview of OP itself. In that case the National Commission directed refund of the amount with interest @12% per annum.
17. Booking in question, transfer of booking by Smt. Anita Singh Yadav in favour of the complainants, payment by the complainants are not in dispute. The OP-1 is directed to refund Rs.24,90,269/- with interest @10% per annum from the respective dates of payment till the date of refund. The order shall be complied within 45 days from the date of receipt of copy of the order. In case of failure, the complainants would be entitled to take  resort to Section 25/ 27 Consumer Protection Act.
18. Copy of the order be sent to both the parties free of cost.
19. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)