BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Mr.Pushpinder Singh Sidhu s/o Shri Harmel Singh Sidhu, R/o Sidhu House, Lehal, Patiala, Punjab, through his General Power of Attorney, Janinder Jain s/o Sh.Om Parkash Jain, R/o House No.2546,Sector 47-C, Chandigarh.

…..Complainant

                 V E R S U S

1]  Unitech Ltd. Regd.Office, 6, Community Centre, Saket, New Delhi-110 017 through its Managing Director;

    Local Office SCO 189-190-191, Level 1, Sector 17C, Chandigarh.

2]  J.D. Realtors Ltd., SCO 317-318, Level 1, Sector 35-B, Chandigarh-160 022 through its Director.

                      ……Opposite Parties

CORAM:   SH.P.D.GOEL                  PRESIDENT

         SH.RAJINDER SINGH GILL       MEMBER

         DR.(MRS) MADANJIT KAUR SAHOTA  MEMBER

Argued by: Sh.Sandeep Sharma, Counsel for complainant.

          Mrs.Ritam Aggarwal, Counsel for OP No.1.

Sh.Harpreet Singh, proxy counsel for Sh.P.I.P.Singh, counsel for OP No.2.          

PER DR.(MRS) MADANJIT KAUR SAHOTA,MEMBER

        Briefly stated, the complainant booked a flat with OP No.1 through OP No.2 (Ann.C-1) by paying initial sum of Rs.6,50,000/- vide cheque dated 14.6.2006 (Ann.C-2). The Project was finally launched by OP No.1 in July 2007, whereupon an allotment letter dated 31.7.2007 for Apartment No.204, Floor-02, HBTN Tower-08, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, was issued to the complainant. It is alleged that details set out in the allotment letter however revealed that, the actual area and design etc. of the apartment was not as per the representation made earlier, induced by which, the complainant had given a deposit at the pre launch stage. As the project never turned out to be as promised and shown, the complainant did not accept the allotment letter/contract. The complainant thus expressed his desire to have his application money refunded to him and opt out of the application in the pre launch to the said allotment letter, whereby the complainant paid a sum of Rs.6,50,000/-.

    It is further alleged that the complainant visited the OP No.2 a number of times seeking refund of the amount and even went to the site in Noida, where there were no traces of any project coming up even in the beginning of the year 2008; revealing thereby that the OPs were only making a fool of the applicants and using the money deposited by them, without interest. Surprisingly, the OP No.1 instead of refunding the amount started claiming more money from the complainant, without considering the fact that the complainant had never accepted the allotment letter-cum-contract. The complainant asked OP No.1 for refund of the amount, paid by him alongwith interest and even sent notice dated 31.3.2010 (Ann.C-4), but OP No.1 failed to refund the amount. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2]       OP No.1 filed reply and took preliminary objections that complainant is not the consumer, the complaint is barred by Limitation; this Forum has got no jurisdiction to try this complainant as well as the arbitration clause.

          On merits, it is denied that there was any inducement by the OP. It is also denied that the complainant had never signed the allotment letter and a copy of the allotment letter duly singed by the complainant has been annexed as Ann.-1. It is pleaded that no communication has ever been received by the OP NO.1 with respect to refund of money and on the contrary, the OP No.1 had been asking the complainant to make the payment in time as per the payment plan; but the same has never been done by the complainant and thus the complainant being a defaulter (Ann.2 (colly)) is not entitled to relief as sought. Denying all other allegations made in the complaint, the OP No.1 prayed for dismissal of the complaint. 

3]       The OP No.2 in their reply, while admitting the factual matrix of the case, pleaded that after receiving the cheque, it was further sent to OP No.1. It is admitted that the complainant had approached the answering OP several times for refund of money. The OP No.2 always forwarded the request of the complainant to OP No.1 for the refund. Rather, OP No.2 has given best possible services to the complainant and even sent official from its office for assistance to the complainant. It is denied that OP No.2 has befooled the complainant in any manner. Denying all other allegations made in the complaint, a prayer has been made for dismissal of the complaint.      

4]       Parties led evidence in support of their contentions.

5]       We have heard the learned counsel for the parties and have also perused the record.

6]       The objection raised by the OPs with regard to jurisdiction of this Forum to entertain the present complaint is not maintainable.  The OP No.1 has itself admitted in para No.1 of their reply that OP No.2 was appointed as their authorized agent in Chandigarh, for selling and marketing of the project in Gautam Budh Nagar.  The booking of flat through OP NO.2 as well as deposit of money through cheque with OP No.2, is also admitted by OP No.2 itself.  The demand for refund of the money through OP No.2 is also admitted.  As such, OPs cannot say that this Forum at Chandigarh has no jurisdiction after conducting all business transaction in Chandigarh and after having received the application money in Chandigarh. Reliance has been placed on Manmohan Lal Sarin Vs. M/s. Emirates, New Delhi 2010(1) RCR (civil) 170 and M/s. Reliance Industries Limited Vs. Simon Martis, 2005 (1) CPC 519.

7]       The second objection of OPs about limitation is also not tenable.  The receipt of booking amount is admitted by the OPs.  The said amount is still lying with OPs, is also not disputed.  Further, the last notice relied upon by them was allegedly given to the complainant on 27.4.2011 wherein the application money paid for allotment stands admitted. Thus, the complaint has been filed well within the period of limitation. 

8]       The next objection raised by OP No.1 regarding booking of apartment for commercial purposes, is completely wrong and baseless.  As per the case of OP No.1 itself, the matter pertains to allotment of residential apartment in Group Housing Complex.  The document Ann.1 itself shows that the application was for residential apartment. Thus, there is no question of the flat being booked for commercial purposes, as the same stood rebutted of their own.

9]       The objection raised by OPs with regard to arbitration clause, is not maintainable in view of Section 3 of the Consumer Protection Act, 1986, which clearly states that “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”  Thus, the arbitration clause cannot and does not oust the jurisdiction of Consumer Forum.  Reliance has also been placed on Associated Road Carriers Ltd. Vs. Kamlender Kashyup and others, 2008 (1) CPC 622; Cholamandalam DBS Finance Ltd. Vs. Kishore Jain, 2008 (1) CPC, 448 and Skypak Couriers Ltd. Vs. Tat Chemicals Ltd., 2000(1) CPC 679.  

10]      The sole grouse of the complainant, in this complaint, is that the project of the OPs never turned out to be, as promised and shown, at the time of booking of the flat, that also, despite assurances & representations given, at the time of pre-launch of the scheme.  Moreover, the terms and details mentioned in the application form were totally in contrast & contrary to the earlier one.  Consequently, he did not accept the allotment letter/contract sent by the OPs, henceforth, expressed his desire for refund of initial amount of Rs.6.50 lacs deposited with the OPs, as he has opted out of the pre-launch scheme. Moreover, the initial payment was made on 14.6.2006 and to his surprise; there was no progress in their work, even till the beginning of the year 2008. However, instead of refunding the amount deposited by the complainant in 2006, the OPs started asking the complainant for more money. 

11]      On the other hand, OP-1, in their written reply, has alleged that the complainant himself has defaulted, as he had stopped making payment since 2006 onwards.  OP-1 has further pleaded that the complainant has failed to make the payment in time in accordance with the allotment letter as well as terms & conditions of the agreement.

12]      Whereas, OP No.2, in its reply, while denying all other allegations of the complainant, has admitted the factum of the case regarding booking of the flat as well as initial payment made towards that.  OP No.2 further admitted that the complainant had approached him several times for refund of money, which he has always forwarded to OP No.1 to do the needful.  Meaning thereby, it had provided best possible services towards the complainant.

13]      The complainant further alleged that the dimension of the said flat varies from the previous one, when he got the said flat initially booked.  Therefore, the specification, mentioned in the allotment letter, sent by the OP No.1, was beyond his reach as well as exceeded his budget, therefore, he never signed/accepted it and returned it back to OP No.1 as such.

14]      Going deeply into the facts & circumstances as well as the documents placed on file, it is a matter, proved by evidence that the flat was booked by the complainant after making initial deposit of Rs.6.50 lacs.  It is again a matter of proof that he never signed the allotment-cum-contract letter, which was required to be signed by the complainant as well as sent it back to the OPs.  The plea of the complainant is that the OPs have used the money deposited by him way back in June, 2006, without accepting the allotment letter/contract. Therefore, they have no locus standi and are not supposed to retain his money, when he did not wish to take the flat, which is contrary to the initial agreed one. Hence, he genuinely/ legitimately asked for refund of the money, as he did not wish to proceed with the proposal any further, which is beyond his reach from every angle.  

15]      The complainant had paid the initial amount at the pre-launch stage of the scheme and had not accepted/signed the allotment letter of the OPs. Therefore, lawfully, the only option available with OP No.1 was only to refund the money of the complainant, as requested, but they did not do so, which is a clear cut deficiency on their part.

16]      From the above analysis of the case as well as thoroughly considering the pleadings and viewing the evidences & documents filed by both the parties, consequently, it is proved beyond doubt, that the deficiency in service, on the part of OPs, is writ large, as the OPs have failed to refund the initial amount deposited by the complainant i.e. Rs.6.50 lacs, as requested. Therefore, we opine that the complaint must succeed, as it has lot of merit, weight and substance. The same is accordingly allowed. The OPs are, jointly & severally, directed to refund a sum of Rs.6.50 lacs, along with interest @12% per annum from the date of deposit/encashment i.e. 20.6.2006 till its actual payment to the complainant, apart from Rs.15,000/- as litigation cost.

         This order be complied with by the OP, within one month, from the date of receipt of the copy of the order, failing which they would be liable to pay the above awarded amount, alongwith interest @ 15% p.a. instead of 12% p.a., from the date of deposit/encashment i.e. 20.6.2006 till its actual payment to the complainant, besides paying Rs.15,000/- as litigation cost.

        Certified copies of this order be sent to the parties free of charge. The file be consigned.