Chandigarh

StateCommission

CC/700/2016

Neelam Jindal - Complainant(s)

Versus

Unitech Pvt. Ltd. - Opp.Party(s)

Sanjeev Sharma, Adv.

02 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	700 of 2016
Date of Institution	:	17.10.2016
Date of Decision	:	02.03.2017

 

1. Neelam Jindal wife of Sh. Parveen Jindal resident of House No.B-1, PWD B & R Colony, Near Bus Stand, SIRSA, Haryana.
2. Parveen Jindal son of Sh. P.D.Jindal, resident of House No.B-1, PWD B & R Colony, Near Bus Stand, SIRSA, Haryana.

…… Complainants

V e r s u s

 

1. Unitech Limited, through its Chairman having its Marketing Office at SCO No. 189-90-91, Sector 17-C, Chandigarh.
2. Unitech Limited through its Managing Directors having registered office at 6, Community Centre, Saket, New Delhi – 110017.
3. Alice Developers Private Ltd., through its Managing Director having registered office at 6, Community Centre, Saket, New Delhi - 110017.

              ....Opposite Parties

BEFORE:         MR. DEV RAJ, PRESIDING MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

Argued by :

 

Sh. Sanjeev Sharma, Advocate for the complainants.

Mrs. Vertika H.Singh, Advocate for Opposite Parties No.1 & 2.

Opposite Party No.3 exparte vide order dated 09.01.2017.

 

PER PADMA PANDEY, MEMBER.

              The facts, in brief, are that Opposite Parties launched their project in the name of Uniworld City, Sector 97, Mohali. The complainants, who were looking for a decent residential accommodation at Mohali, were got allured by the advertisements and promotions by the Opposite Parties, as such, they agreed to purchase a residential unit in their project. The Opposite Parties allotted apartment No.0103 on First Floor/Block –A, Tower A3 having super area of approx. 137.96 sq. mtrs (approx. 1485 sq. feet) in Complex “GARDENS” to be developed in mega township known as UNIWORLD City, Sector 97, Mohali, Punjab. The sale price of first floor, allotted to the complainants, was Rs.44,05,275/-, which included Basic Sale Price and EDC. Buyer Agreement was executed between the parties on 26.04.2011, at Chandigarh (Annexure C-2) and as per Clause 4(a)(i), possession of the apartment should be delivered within a period of 36 months from the date of execution of the Agreement. It was further stated that at the time of booking, the Opposite Parties assured that all the requisite permissions/approvals were in place and they would hand over possession of the apartment by the end of year 2013. It was further stated that the complainants kept on making payment of all the installments, as and when demanded by the Opposite Parties. The complainants visited the site and were shocked to see that there was no development at the site and whole piece of land was like a jungle and moreover there were no approach/connecting roads, internal roads, water and drainage system, street lights and there was not even a semblance of any development being carried out at the project. It was further stated that the complainants made the payment of Rs.45,80,956/- towards the price of the unit, however, the Opposite Parties did not complete the development and never offered possession of the unit. The complainants approached the Opposite Parties at their Marketing Office on 11.12.2015 & lastly on 22.08.2016 but the Opposite Parties failed to deliver possession of the unit, despite repeated requests, neither paid penalty, as per the terms and conditions of the Agreement and nor refunded the amount to them. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.       Opposite Parties No.1 and 2, in their joint written version, stated that this Commission has got no territorial jurisdiction to try the complaint because Buyer Agreement was executed between the parties at New Delhi ; demand of payments was raised and receipts of the same issued by the Gurgaon Office of the replying Opposite Parties on behalf of Opposite Party No.3. It was stated that the Chandigarh office has received some of the cheques from the complainants only as a facilitator, which was eventually deposited into the designated account of Opposite Party No.3, who was to develop the said unit. It was further stated that the Buyer Agreement was executed between the complainants and Opposite Party No.3 and the replying Opposite Parties were only a “Confirming Party” to the said Agreement and the same was clearly stipulated in the Agreement. It was further stated that vide Development Agreement dated 01.12.2008, Unitech Limited has assigned to the developer (Alice Developer Pvt. Ltd.) the development rights with respect to  33.2438 acres of land and it was further mentioned that the developer should construct and complete multistory group housing complex to be known as ‘Gardens’. It was further stated that Opposite Party No.3 was authorized to use the Unitech Trade Mark and Unitech Corporate Logo for various purposes such as promotional, marketing, advertisements, brochures, hoardings etc. Copy of the Trademark Licence  Agreement is Annexure OP-2. It was further stated that the consumer complaint is not maintainable, and only a Civil Court, could adjudicate the dispute, in question. It was further stated that the liability to construct the said flat and hand over possession of the unit was of Opposite Party No.3 because Opposite Party No.3 was the developer and the replying Opposite Parties had a limited role in the said project. It was denied that the complainants had bought the said flat for themselves because they are permanent residents of Sirsa, Haryana and no reason whatsoever has been given by the complainants, for which, they bought the said unit in an undeveloped area of Mohali. It was further stated that the complainants were never allured by the replying Opposite Parties and they had bought the said unit keeping in view the investment feasibility of the said property in open market. It was further stated that the replying Opposite Parties issued allotment letter dated 01.01.2011 only on behalf of Opposite Party No.3. It was further stated that the replying Opposite Parties never assured the complainants to hand over possession within 24 months. It was further stated that all the payments received by the replying Opposite Parties were duly deposited into the designated account of Opposite Party No.3, as per terms and conditions of the Agreement and the sole responsibility to complete the construction and hand over possession was only of Opposite Party No.3. It was further stated that the replying Opposite Parties cannot be held liable for delay in construction work.  It was further stated that the complainants never approached the replying Opposite Parties regarding any kind of grievances. It was further stated that since the amount paid by the complainants was never retained by the replying Opposite Parties, hence the question of assuring them regarding refund of entire amount alongwith interest did not arise at all. It was further stated that as per the Agreement, if the complainants sought refund, then forfeiture clause would be applicable upon them. It was further stated that as per Clause 4(c) of the Agreement, the developer i.e. Opposite Party No.3 was liable to pay compensation for the period of delay in offering the possession of the said unit. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor it indulged into unfair trade practice.
3.       After issuance of notice to Opposite Party No.3, none appeared on its behalf. Hence, Opposite Party No.3 was proceeded against exparte vide order dated 09.01.2017.
4.       The Parties led evidence, in support of their case.
5.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 
6.       The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. Counsel for Opposite Parties No.1 & 2 stated that Agreement was executed between the parties at New Delhi and payments were received by the Gurgaon office of Opposite Parties No.1 and 2 on behalf of Opposite Party No.3, as such, this Commission has no territorial Jurisdiction to entertain and decide the complaint.

            According to Section 17 of the Act, a consumer complaint could be filed by the complainant(s), before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case,  Customer Ledger (at page No.61 of the file) was issued by the Chandigarh office of Opposite Parties No.1 and 2 i.e. ‘Unitech Limited, SCO 189-90-91, Sector 17-C, Chandigarh.’ Not only this, even the cheque dated 17.03.2011 in the sum of Rs.4,01,124/- (at page No.53 of the complainant’s documents), in respect of the unit, in question, was received by Regional Office of Opposite Parties No.1 and 2, at Chandigarh i.e. “Unitech Limited, Regional Office, SCO 189-191, Sector 17-C, Chandigarh-160017” , as is clearly shown from the stamp affixed on the said document. Since, as per the documents, referred to above, a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by Counsel for Opposite Parties No.1 & 2, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

7.       Another objection taken by Opposite Parties No.1 & 2, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here, that the complainants sought refund of an amount of Rs.45,80,956/- paid by them, alongwith interest @18% per annum from the date of deposit till its actual realization;  compensation to the tune of Rs.10 lacs, for mental agony & physical harassment and cost of litigation, to the tune of Rs.75,000/-, aggregate value whereof [excluding the interest claimed] fell above Rs.50 lacs and below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint.

            As far as the interest claimed by the complainants, on the deposited amount is concerned, it is not required to be added, at this stage, to the value of the reliefs claimed, for determining the pecuniary Jurisdiction of this Commission, in view of law laid down by three Member Bench of the National Commission, in a case titled as Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. & Ors. II (2003) CPJ 81 (NC), wherein it was clearly held that since rate and the period for which interest has to be allowed, is within the discretion of Consumer Foras, and that too at the stage, when the complaint is finally disposed of, as such, the same being imaginary would not be taken into consideration, at the time of filing of the same (complaint), for the purpose of determination of pecuniary jurisdiction. Not only as above, in the case of Denis Exports Pvt. Ltd Vs. United India Insurance Co. Ltd, Consumer Case No. 196 of 2016, decided on 08 March 2016, it was clearly held by the National Commission that interest component being imaginary, will not be added in the reliefs sought by the consumers, for determining pecuniary jurisdiction of the Consumer Foras. This issue has already been elaborately dealt with by this Commission in Surjit Singh Thadwal Vs. M/s Emaar MGF Land Pvt. Ltd. & Anr., Consumer Complaint No.484 of 2016, decided on 15.12.2016. Relevant portion of the aforesaid judgment reads thus :-

“13.  Now we will deal with another contention of the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.  As per admitted facts, the complainant has sought refund of amount paid i.e. Rs.48,95,264/- alongwith interest @12% p.a. from the respective date of deposits; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment and cost of litigation to the tune of Rs.55,000/-. It is argued by Counsel for the opposite parties that if his entire claimed amount is added, alongwith interest claimed, it will cross Rs.1 crore and  in that event it will not be open to this Commission to entertain and adjudicate this complaint, for want of pecuniary jurisdiction. To say so, reliance has been placed upon ratio of judgment of a Larger Bench of the National Commission, in the case of Ambrish Kumar Shukla (supra). In the said case, it was specifically observed that when determining pecuniary jurisdiction of the Consumer Foras, it is the value of the goods and services, which has to be noted and not the value of deficiencies claimed. Further, that interest component also has to be taken into account, for the purpose of determining pecuniary jurisdiction.

14.         In the first blush, if we look into the ratio of the judgment, referred to above, it appears that this Commission will not have pecuniary jurisdiction to entertain this complaint.  However, on deep analysis, we are going to differ with the argument raised by Counsel for the opposite parties.  Judgment in the case of Ambrish Kumar Shukla (supra) was rendered by Three Judges Bench of the National Commission, without noting its earlier view of the subject. This issue, whether, when determining pecuniary jurisdiction of the State Commission/ Consumer Foras, interest is to be added with other relief claimed or not, came up for consideration, before the Three Judges Bench of the National Commission in Shahbad Cooperative Sugar Mills Ltd. Vs. National Insurance Co. Ltd. And Ors., II 2003 CPJ 81 (NC). In the said case, noting similar arguments, it was observed as under:-

“3. Complaint (at pp 17-36) was filed with the following prayer :

“It is, therefore, respectfully prayed that the complaint be allowed and the opposite parties be directed to pay the claim to the tune of Rs. 18,33,000/- plus interest @ 18% from the date of claim till its realization. Also the suitable damages caused to the complainant be ordered to be paid to the complainant.”

4. Bare reading of the prayer made would show that the interest claimed by appellant pertains to the period upto the date of filing complaint, pendente lite and future. Rate and the period for which interest has to be allowed, is within the discretion of State Commission and the stage for exercise of such a discretion would be the time when the complaint is finally disposed of. Thus, the State Commission had acted erroneously in adding to the amount of Rs. 18,33,000/- the interest at the rate of 18% per annum thereon till date of filing of complaint for the purpose of determination of pecuniary jurisdiction before reaching the said stage. Order under appeal, therefore, deserves to be set aside. However, in view of change in pecuniary jurisdiction w.e.f. 15.3.2003, the complaint is now to be dealt with by the District Forum instead of State Commission.”

 

15.         It was specifically stated that interest claimed by appellant/complainant pertained to the period upto the date of filing complaint, pendente lite and future, need not be added in the relief claimed, to determine pecuniary jurisdiction of the State Commission/Consumer Foras. It was rightly said that the rate and period for which the interest has to be allowed, is within the discretion of the particular Consumer Fora, and the stage for exercise of such discretion would be the time, when final order is passed. We are of the considered opinion that the view taken is perfectly justified. There may be cases, where the complainant may not be entitled to claim any interest upon the amount paid, like the one, where he is rescinding his contract and  further at what rate interest is to be granted will be determined by the competent Consumer Fora, by looking into the facts of each case. All cases cannot be put into a straitjacket formula, to add interest claimed, to determine pecuniary jurisdiction of the Consumer Foras. The interest, which is a discretionary relief, cannot be added to the value of the goods or services, as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Foras. As per provisions of the Consumer Protection Act, 1986 (Act) value of the goods purchased or services plus (+) compensation claimed needs to be added only, for determining pecuniary jurisdiction of the Consumer Foras.

                As per ratio of the judgment of the Supreme Court in the case of New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013, decided on 04.12.2015, we would like to follow the view expressed by Three Judges Bench (former Bench) of the National Commission in Shahbad Cooperative Sugar Mills Ltd. case (supra), in preference to the ratio of judgment passed by a Bench of co-equal strength (subsequent Bench) of the National Commission in the case of Ambrish Kumar Shukla case (supra).

                In New India Assurance Co. Ltd. case (supra), it was specifically observed by the Supreme Court that when a former Bench of co-equal strength has given a finding qua one legal issue, it is not open to the subsequent Bench of co-equal strength to opine qua that very legal issue and give a contrary finding. At the maximum, the subsequent Bench of co-equal strength can refer the matter to the President/Chief Justice of India to constitute a bigger Bench, to look into the matter and reconsider the legal proposition. It was further specifically held that, in case, there are two contrary views by the former and later co-equal strength Benches, the former will prevail. It was so said by looking into the ratio of judgment rendered by the Five Judges Bench of the Supreme Court of India, in Central Board of Dawoodi Bohra Community & Anr. Vs. State of Maharashtra & Anr. (2005) 2 SCC 673, wherein, when dealing with similar proposition,  it was observed as under:-

 

“12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :-

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion  doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and

(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Hansoli Devi.”

16.         In Ambrish Kumar Shukla case (supra), ratio of judgment-Shahbad Cooperative Sugar Mills Ltd. (supra) was not even discussed and considered. In view of above proposition of law laid down by the Five Judges Bench in Central Board of Dawoodi Bohra Community & Anr.`s and also Three Judges Bench of the Supreme Court, in New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. case (supra), it is not open to the Bench of co-equal strength to give contrary findings, to the view already expressed by a Former Bench of same strength. In Shahbad Cooperative Sugar Mills Ltd. case (supra), decided on 02.04.2003, it was specifically observed by Three Judges Bench of the National Commission that when determining pecuniary jurisdiction of the Consumer Foras, interest component claimed by the complainant/party, is not to be added. We are of the considered view that in view of proposition of law, as explained above, the view taken in Shahbad Cooperative Sugar Mills Ltd. case (supra), to determine pecuniary jurisdiction without taking interest claimed, will prevail. As such, in the present case, we are not looking into the interest claimed by the complainant, when determining pecuniary jurisdiction of this Commission.  If the interest part is excluded, the amount claimed in the relief clause fell below Rs.1 crore and above Rs.20 lacs. Hence, this Commission has pecuniary jurisdiction to entertain and decide the present complaint. In view of above, the objection raised by the opposite parties, in this regard, being devoid of merit, must fail and the same stands rejected.”

The principles of law, laid down, in the cases referred to above, are fully applicable, to the facts of the instant case. In view of the above, the objection taken by Opposite Parties No.1 and 2, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

8.       To defeat claim of the  complainants, another objection was raised by Counsel for Opposite Parties No.1 & 2, that the complainants had not bought the said flat for themselves because they are permanent residents of Sirsa, Haryana and no reason has been given by the complainants for which, they bought the said unit in an undeveloped area of Mohali, as such, they did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986.  After going through the record of the case, we do not find any merit in the contention of Counsel for Opposite Parties No.1 & 2 because the complainants have specifically mentioned in their complaint that the complainants were looking for a decent residential accommodation at Mohali, as lot of their relatives are residing at Chandigarh/Mohali/ Panchkula.  It may be stated here that there is nothing, on the record to show, that the complainants are the property dealers, and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Counsel for Opposite Parties No.1 & 2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for Opposite Parties No.1 & 2, therefore, being devoid of merit, is rejected.
9.       Another objection was raised by Counsel for Opposite Parties No.1 & 2 that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the  complainants hired the services of the Opposite Parties, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the Apartment Allotment Agreement dated 26.04.2011,  the Opposite Parties were liable to offer possession of the unit, within a period of 36 months, from the date of signing of the same (Agreement) i.e. latest 25.04.2014, alongwith all basic amenities as mentioned in Article 2.a.(ii) of the Agreement. Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. 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). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section  3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by them, as they fall within the definition of consumer. In this view of the matter, the objection of taken by Counsel for Opposite Parties No.1 & 2, in this regard, being devoid of merit, must fail, and the same stands rejected.

10.       With regard to the objection raised by Opposite Parties No.1 and 2 in their written statement that liability to construct the said unit and develop the area was of Opposite Party No.3 because Opposite Party No.3 was the developer, as such, they (Opposite Parties No.1 & 2) had a limited role in the said project. This issue has already been decided by this Commission, in the case titled as “Kulwant Kaur Vs. Unitech Limited, Complaint Case No.85 of 2016 on 09.06.2016” alongwith two other connected complaints, which reads thus :-

“11. With regard to the objection raised by Opposite Parties No.1 and 2 in their written statement that liability to construct the said unit and develop the area was of Opposite Party No.3 because Opposite Party No.3 was the developer, as such, they (Opposite Parties No.1 & 2) had a limited role in the said project. It was further stated that as per Clause 1(a) of the Buyer Agreement, the developer i.e. Opposite Party No.3 agreed to sell the apartment to the allottee and vide Clause 4(a), the liability to hand over possession with the tentative time frame of 36 months of the signing of the Buyer Agreement was of Opposite Party No.3, which is a separate body corporate duly registered under the Companies Act, 1956. After going through the record of the case, we are not satisfied with the objection raised by Opposite Parties No.1 and 2 in their written statement. A bare perusal of Annexure OP-3/2 clearly reveals that various communications relating to electrical connection was communicated between Unitech Limited, GMADA as well as PSPCL.  Not only this, even Unitech Limited i.e. Opposite Parties No.1 and 2 had applied for issuance of Partial Completion Certificate (Annexure OP-3/3) to the Chief Administrator, GMADA, Mohali. It is pertinent to note that allotment letter dated 01.12.2010 (Annexure C-2) and Payment Schedule  (at page No.25 of the file) were issued by Unitech (Opposite Parties No.1 and 2). Moreover, the cheques for payment of the unit, was received by the regional office of Opposite Parties No.1 and 2. Not only this, Apartment Allotment Agreement dated 08.02.2011 was executed between Alice Developers Private Limited (Opposite Party No.3), Unitech Limited (Opposite Parties No.1 and 2) and the complainant. The Customer Ledger (Annexure C-4) was also issued by Opposite Parties No.1 and 2. Moreover, brochure (Annexure C-1) in respect of the unit, in question, was issued by Opposite Parties No.1 and 2 in the name of ‘UNIWORLD CITY, MOHALI’. After going through all the documents, it is clearly proved that from the advertisement to the stage of receipt of consideration amount from the complainant was done by Opposite Parties No.1 and 2 ; relevant permission to develop the project from Govt. Authorities i.e. GMADA was obtained by Opposite Parties No.1 & 2. Opposite Parties No.1 and 2 in their written statement stated that vide Development Agreement dated 01.12.2008, Unitech Limited has assigned to the developer (Alice Developer Pvt. Ltd.) the development rights with respect to  33.2438 acres of land and it was further mentioned that the developer should construct and complete multistory group housing complex to be known as ‘Gardens’. However, no Development Agreement dated 01.12.2008 has been placed on record by Opposite Parties No.1 and 2, to prove the same. At the time of arguments, Counsel for Opposite Parties No.1 and 2 stated that no doubt, the amount in respect of the unit, in question, was received by Opposite Parties No.1 & 2 from the complainant but the same was put in a separate account and, thereafter, the said amount was forwarded to Opposite Party No.3. It may be stated here that no proof has been placed on record by Opposite Parties No.1 and 2 that the amount received by them was put in a separate account and forwarded to Opposite Party No.3.  It is pertinent to note that even in Article 4.a (iii), it has been mentioned as under :-

 “That it is further agreed by the Apartment Allottee(s) that after completion of the Apartment and receipt of full consideration and other charges, if any, payable by the Apartment Allottee(s), a Sale Deed between Developer, Unitech, and the Apartment Allottee(s) shall be executed in favour of the Apartment Allottee(s) as per the standard format. X x x x x x x”

So, it is clearly proved that Opposite Party No.3 is hand in glove with Opposite Parties No.1
& 2. From above, it is clear that there is no fault on the part of the complainant because being an innocent buyer, she had paid the huge amount to Unitech Limited and she is not aware about the mutual understanding between Opposite Parties No.1 & 2 and Opposite Party No.3. So, we are of the view that all the Opposite Parties are equally responsible for the lapse of not handing over possession to the complainant.”

In the present case also, Apartment Allotment Agreement dated 26.04.2011 was executed between Alice Developers Private Limited (Opposite Party No.3), Unitech Limited (Opposite Parties No.1 and 2) and the complainants. The Customer Ledger (at page No.61 of the complainant’s documents) was also issued by Opposite Parties No.1 and 2. Even, Opposite Parties No.1 and 2 in their written statement stated that vide Development Agreement dated 01.12.2008, Unitech Limited has assigned to the developer (Alice Developer Pvt. Ltd.) the development rights with respect to  33.2438 acres of land and it was further mentioned that the developer should construct and complete multistory group housing complex to be known as ‘Gardens’. However, no Development Agreement dated 01.12.2008 has been placed on record by Opposite Parties No.1 and 2, to prove the same. It is also pertinent to note that the amount in respect of the unit, in question, was received by Opposite Parties No.1 & 2 and Opposite Parties No.1 and 2 failed to place on record any document, which could show that the said amount was further forwarded in the separate account of Opposite Party No.3.  In view of the afore-extracted judgment, passed by this Commission, we are of the view that all the Opposite Parties are equally responsible for the lapse of not handing over of possession to the complainants.

11.       The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainants. According to Article 4.a.(i) of the Apartment Allotment Agreement dated 26.04.2011 (Annexure C-2), the Opposite Parties, were to hand over possession of the unit, in question, to the  complainants, within a period of 36 months, from the signing of the same (Agreement) i.e. latest by 25.04.2014. Admittedly, possession of the unit, was not delivered to the  complainants, by the stipulated time frame, as mentioned in the Agreement or even till date. In the present case, Opposite Party No.3 failed to put in appearance, as such, it was proceeded against exparte. Even Opposite Parties No.1 and 2 did not explain regarding non-delivery of possession due to any force majeure circumstances. By making a misleading statement, that  possession of unit, in question, would be delivered within a period of 36 months, from the date of signing of the Agreement, but on the other hand, by not abiding by the commitments made, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
12.        The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.45,80,956/-, deposited by them. It is an admitted fact that the Opposite Parties are unable to deliver  possession of the unit, in question to the complainants and firm date of delivery of possession of the unit, could not be given to them (complainants). The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. As stated above, the Opposite Parties failed to prove, by placing on record, any cogent and convincing material, that it encountered any force majeure circumstances, as a result whereof, possession of the unit, in question, was delayed. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The  complainants are, thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

13.       As far as the plea taken by the Company regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the Opposite Parties, that they were ready with possession to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of non-performance of the Opposite Parties i.e. failure to hand over possession by the stipulated time and are seeking refund of the amount deposited. Had this been for other reasons, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, they are entitled to the amount deposited, after deduction of the earnest money, as per the terms and conditions of the Agreement. In this view of the matter, the plea taken by Opposite Parties No.1 and 2, in this regard, has no legs to stand and is accordingly rejected.    

14.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is not in dispute that an amount of Rs.45,80,956/-, was paid by the  complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest (compounded quarterly @18% p.a.) as per Article 2.c. of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainants are certainly entitled to get refund of the amount deposited by them alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the Company, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.

15.       No other point, was urged, by Counsel for the parties, in both the cases.  

16.       For the reasons recorded above, this complaint is partly accepted, with costs, in the following manner and the Opposite Parties are jointly and severally directed as under :-.

1. To refund the amount of Rs.45,80,956/-, to  the  complainants, alongwith interest @15% compounded quarterly,  from the respective  dates  of  deposits onwards.

 

2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants.

 

3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.

 

4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15% compounded quarterly, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

           

17.             However, it is made clear that, if the  complainants, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
18.             Certified Copies of this order be sent to the parties, free of charge.
19.             The file be consigned to Record Room, after completion.

Pronounced.

02.03.2017                                                  Sd/-

(DEV RAJ)

PRESIDING MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rb.