State Consumer Disputes Redressal Commission
Rajnish Grover vs Unitech Ltd. on 6 March, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 343 of 2017
Date of Institution : 09.05.2017
Date of Reserve : 21.02.2018
Date of Decision : 06.03.2018
1. Rajnish Grover S/o Sh.S.L.Grover, r/o Q 604, AWHO, Sispal
Vihar, Sector 49, Gurgaon-122018.
2. Abha Grover w/o Sh.Rajnish Grover, r/o Q 604, AWHO,
Sispal Vihar, Sector 49, Gurgaon-122018.
....Complainants
Versus
1. Unitech Limited, having its registered office at 6, Community
Centre, Saket, New Delhi-110017 through its Wholetime
Director Sh.Ramesh Chandra.
2. Sh.Ramesh Chandra, Wholetime Director of Unitech Limited,
C-41, Mayfair Gardens, Hauz Khas, New Delhi-110016.
3. Sh.Ajay Chandra, Managing Director of Unitech Limited, C-
41, Mayfair Gardens, Hauz Khas, New Delhi-110016.
4. Sh.Sanjay Chandra, Managing Director of Unitech Limited, c-
41, Mayfair Gardens, Hauz Khas, New Delhi-110016.
....Opposite parties
Consumer Complaint under Section 17
of the Consumer Protection Act, 1986.
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the complainants : Sh.S.S.Gill, Advocate
For opposite party No.1 : Ms.Vertika H.Singh, Advocate
For opposite parties No.2 to 4 : Ex-parte
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainants have filed this complaint against the opposite parties under Section 17 of the Consumer Protection Act, 1986 (for short the Act), on the averments that complainants were willing to Consumer Complaint No. 343 of 2017 2 own a residential plot in Mohali for family and personal use and accordingly they purchased the plot No.84 in Block B measuring 358.80 sq. yards in the project of the opposite parties i.e. Ranches to be developed in their Mega Township known as Uniworld City, Sector 106, Mohali from original allottee Devinder Gupta and Sons on 05.05.2011 for a total sale consideration of Rs.51,12,900/-. The opposite parties had endorsed the Buyer's Agreement with original allottees on 10.02.2011 in favour of the complainants. According to clause No.4 (a)(i) of the Plot Buyer's Agreement, the possession of the plot was to be delivered within 12 months from the date of signing of the agreement. Opposite parties vide letter dated 05.05.2011 acknowledged the receipt of Rs.50,00,000/- towards consideration of the said plot. Complainants visited the site of their project in the year 2014, 2015 and 2016 and were shocked to see that construction/ development was stopped at the site, whereas their deadline given by the PUDA was upto 30.06.2015 as per the information received under RTI from the PUDA. Although the possession of the plot was due in February, 2012 but on 21.10.2015, the complainants received a letter from the opposite parties offering them conditional possession by giving undertaking in the shape of affidavit that the complainants would not claim against the incomplete basic amenities. The said offer was merely a paper possession. Actually, there was no development at the site. Alleging deficiency in service on the part of the opposite parties, this complaint has been filed by the complainants seeking directions against the opposite parties to refund the sum of Consumer Complaint No. 343 of 2017 3 Rs.50,00,000/- received by the opposite parties from the complainants/predecessors alongwith interest; pay Rs.5,00,000/- as compensation for mental agony and harassment; Rs.1,00,000/- as litigation expenses.
2. Upon notice, opposite party No.1 appeared and filed the written reply, whereas none appeared on behalf of opposite parties No.2, 3 & 4, therefore, they were proceeded against ex- parte vide order dated 14.07.2017. Opposite party No.1 in its written reply filed through Sh.Lalit Gupta, Legal Executive has taken the preliminary objections that the Buyer's agreement dated 10.02.2011 was executed at New Delhi, therefore, the complaint before this Commission is not maintainable; the Commission does not have pecuniary jurisdiction as the total claim exceeds Rs.1 crore; the complainants are investors as they have their residential house at Gurgaon and plot was booked only for investment purposes; there is no consumer dispute between the parties as defined under Section 2(1)(e) of the Act and that no cause of action has arisen to the complainants to file the present complaint. On merits, booking of plot is a matter of record. It is also admitted that possession of the plot was to be delivered within a period of 12 months subject to force majeure as referred in Clause 4(a) of the Buyer's agreement and in that eventuality the developer shall be entitled to a reasonable extension of time. The documents placed on the record i.e. information supplied by GMADA is not an authentic document. The complainants have not paid the instalments as per schedule and even the last instalment which is Consumer Complaint No. 343 of 2017 4 to be paid on final notice of possession and notice of possession has already been given to the complainants but they failed to get the possession. It was further mentioned that Sewage Treatment Plan was to be operational, electricity was provided from DG set and other amenities have been provided. Basically, delay occurred on account of dispute raised of the opposite parties with PSPCL on account of release of 1 MW connection to the opposite parties, therefore, there is no delay or deficiency in service on the part of the opposite parties. Complaint is without merit, it be dismissed.
3. In support of their contentions, complainant No.1 tendered into evidence the affidavit dated 18.10.2017 as Ex.C-A and affidavit of Abha Grover, complainant No.2 dated 18.10.2017 as Ex.C-B, copy of Buyers agreement dated 10.02.2011 as Ex.C-1, copy of receipt dated 05.05.2011 as Ex.C-2, copy of transfer of allotment dated 05.05.2011 as Ex.C-3, copy of RTI dated 27.07.2015 as Ex.C-4, copy of RTI reply dated 04.09.2015 as Ex.C-4/A and its translation as Ex.C-4/A(T), copy of RTI letter dated 10.10.2015 as Ex.C-4/B and copy of reply dated 23.10.2015 as Ex.C-4/C and its translation as Ex.C-4/C(T), copy of RTI information dated 13.11.2015 as Ex.C-4/D and its translation as Ex.C-4/D(T), copy of letter dated 08.09.2010 as Ex.C-5, copy of e- mail dated 19.08.2015 as Ex.C-6, copy of e-mail dated 16.08.2015 as Ex.C-6/A, copy of email dated 19.09.2014 as Ex.C-6/B, copy of email dated 15.09.2014 as Ex.C-6/C, copies of emails dated 15.09.2014, 29.08.2014, 04.06.2016, 08.05.2016, 25.04.2016, 19.03.2016, 24.02.2016, 11.01.2016, 02.01.2016, 15.12.2015, Consumer Complaint No. 343 of 2017 5 16.08.2015, 19.09.2014, 15.09.2014, 29.08.2014, 23.03.2015, 01.03.2015, 09.02.2015, 02.12.2014, 24.11.2014, 15.11.2014, 10.11.2014, 03.11.2014, 06.10.2014, 13.09.2014, 29.08.2014, 13.08.2014, 08.08.2014, 06.08.2014, 02.08.2014 and 01.08.2014 as Ex.C-6/D to Ex.C-6/AG, copy of offer of possession letter dated 21.10.2015 as Ex.C-7, copy of list of directors as Ex.C-8 whereas opposite parties No.1 filed the affidavit of Lalit Gupta as Ex.OP-A, Resolution dated 19.06.2015 as Ex.OP-1, letter dated 09.09.2011 as Ex.OP-2, letter dated 22.09.2011 as Ex.OP-3, letter dated 26.05.2014 as Ex.OP-4, letter dated 15.07.2014 as Ex.OP-5, letter dated 11.12.2014 as Ex.OP-6, letter dated 01.07.2014 as Ex.OP-7, undertaking as Ex.OP-8, letter dated 19.12.2014 as Ex.OP-9, letter dated 02.03.2015 as Ex.OP-10, letter dated 08.01.2016 as Ex.OP- 11, letter dated 27.04.2016 as Ex.OP-12, letter dated 28.04.2016 as Ex.OP-13, letter dated 16.05.2016 as Ex.OP-14, letter dated 18.05.2016 as Ex.OP-15, letter dated 03.02.2016 as Ex.OP-16.
4. We have heard the counsel for the complainants and have carefully gone through the averments as alleged in the complaint, evidence, written reply and documents filed by the parties.
5. A preliminary objection has been taken by the counsel for opposite party No.1 that Buyers Agreement took place at New Delhi, therefore, this Commission does not have the pecuniary jurisdiction to entertain this complaint. No doubt that the agreement was executed in their New Delhi office and receipts also shows that these were issued from Gurgaon but basically the Consumer Complaint No. 343 of 2017 6 plot is located at Mohali and possession of the plot is to be given at Mohali, therefore, apart of cause of action arises within the territorial jurisdiction of this Commission which was not controverted by opposite party No.1. Therefore, we are of the opinion that this Commission has the territorial jurisdiction to entertain this complaint.
6. Another objection has been taken that this Commission does not the pecuniary jurisdiction as the total value of the claim exceeds Rs.1 crore. As per the Buyer's agreement the total sale consideration is Rs.51,12,900/-. Apart from that the complainant has added the interest on this amount paid to the opposite parties but no interest rate has been mentioned in it. Normally, we award interest at the rate of 12% per annum and during the course of arguments, counsel for opposite party No.1 has not given any tabulation that in case the interest is calculated at the rate of 12% per annum then what will be the amount of interest and whether after that adding the amount of Rs.5,00,000/- claimed on account of mental agony and harassment will exceeds Rs.1 crore, therefore, this objection has been taken by the opposite parties only for the purpose of objection otherwise no data has been provided how this Commission does not have the pecuniary jurisdiction to entertain this complaint. Therefore, this objection cannot be entertained.
7. Objection has also been taken by counsel for opposite party No.1 is that the complainants are investors and not the consumers as they have already a property in Gurgaon but no Consumer Complaint No. 343 of 2017 7 document with regard to any property or house in their names has been placed on record by the opposite parties, even if they have a property at Gurgaon, even then, it has been stated in the complaint that this plot was booked by them for family is personal use. Therefore, in case any family member wanted to reside at Mohali then there is no bar to book that plot. Moreover, there is no evidence on the record or produced by the opposite parties that the complainants are trading in Real Estate business. Till such evidence is proved, it cannot be said that they booked this plot for investment purpose only. We are fortified by the judgment of Hon'ble National Commission reported in II (2017) CPJ 25 (NC) "Dr.Poonam Aggarwal Versus Gujral Associates & Anr.", wherein it was observed that unless there is evidence on record that complainant was engaged in business of selling and purchasing of properties on regular basis, it would not be proper to classify such acquisition as commercial activity merely on the basis of number of units booked by such person. Therefore, in the absence of any specific evidence on record that complainants are engaged in the business of sale and purchase of properties, no findings can be recorded that the complainants had booked the flat for commercial purposes. Accordingly, this point is determined against the opposite parties.
8. It has also been argued that the dispute involved is not a consumer dispute as defined under Section 2(e) of the Act. Section 2(e) of the Act reads as under:-
XX XX XX XX XX Consumer Complaint No. 343 of 2017 8 "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;"
XX XX XX XX XX
9. The averments stated in the complaint have been denied by the opposite parties that the complainant had engaged the construction services from the opposite parties and against that payment was made to the opposite parties for developing the land and to provide a developed plot to the complainants. The services has been denied under Section 2(o) of the Act, which reads as under:-
XX XX XX XX XX "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."
XX XX XX XX XX
10. It includes housing construction services also. In case the opposite parties as per the agreement has not delivered the developed plot to the complainants then it is a deficiency in service and in case they have been indulged in unfair trade practice by violating any law of PAPRA then it amounts to unfair trade practice and in both the cases, it is a consumer dispute. Therefore, we do Consumer Complaint No. 343 of 2017 9 not agree with the plea raised by the counsel for opposite party No.1 that the present dispute is not a consumer dispute.
11. As per Ex.C-2, it is an admitted fact that originally the plot was booked in the name of Mr.Rahul Royal then Devinder Gupta and Sons and on 05.05.2011 it was transferred in the name of the complainants and when it was transferred in the name of the complainants they had issued the letter showing deposit of Rs.50,00,000/- and the same was transferred in the name of the complainants. The Buyer's agreement Ex.C-1 shows that it was with the Rahul Roy then it was endorsed in the name of Devinder Gupta & Sons and then it was endorsed in the name of complainants on 05.05.2011. According to clause 4(a) (i) of the agreement, the possession of the plot was to be given within the period of 12 months from the date of agreement, which will be given in February, 2012 but it was not given within the stipulated time and that they issued the possession-cum-allotment letter, Ex.C-7 dated 21.10.2015 but in this letter Clause 2 and 3 shows that Sewage Treatment Plan has not commenced and electricity was being supplied from the D.G. Set, therefore, no provision of electricity, no completion certificate was taken on the record. They have placed on record the document Ex.OP-16 vide which, application was given for partial completion certificate. Against that, objections were raised by the GMADA, it seems that the amenities at the spot are not complete and that is the reason that even partial completion certificate has not been given. It is now settled Consumer Complaint No. 343 of 2017 10 preposition of law that till no completion certificate is there, no possession can be offered, therefore, it is just a paper possession.
12. So far as the delay in the project is concerned, they have referred a dispute with the PSPCL. Certainly, these departments are also working under some Rules and in case some formalities are not completed i.e. Bank Guarantees were required to be deposited in order to complete the formalities by the opposite parties, therefore, that cannot be said the reason for delay in the project. No other force majeure or any other circumstances have been referred by the counsel for opposite party No.1. The possession was to be given in February, 2012 and now we are in Feb, 2018 i.e. already six years delay in delivering the possession. In case, there is a delay in delivering in possession, it amounts to deficiency in service. It has been so held by the Hon'ble National Commission reported in II (2014) CPJ 131 "PUDA Versus Kanwalpreet Singh" that in case there is delay in handing over the possession, it amounts to deficiency in service and refund order can be passed. A reference has also been made to I (2017) CPJ 513 (NC) "Neha Suri versus Unitech Reliable Project Pvt. Ltd." In that case, the possession of the flat was not given as agreed. It amounts to deficiency in service. Amount deposited alongwith interest was ordered to be refunded. Similar order was passed in I (2017) CPJ 113 "Vishal Issar Versus Park Wood Developers Pvt. Ltd.".
13. Counsel for opposite party No.1 was unable to controvert the arguments raised by the counsel for the Consumer Complaint No. 343 of 2017 11 complainants and how it was not deficient in service on the part of opposite party No.1 in case the possession of the plot was not given within the agreed time.
14. In case, the plot has not been delivered within the agreed time then complainants are entitled for refund but what will be the rate of interest. In this regard, we can refer to Rule 17 of PAPRA Rules, 1995:-
"17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under subsection (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
15. According to this Rule, in case of refund, the opposite parties are required to refund the amount at the rate of 12% per annum and that seems to be a reasonable rate of interest and it has been so held in other cases. A reference can be made to C.C. No.58 of 2016 titled as "Vikas Verma & Anr. Vs. Unitech Limited & Anr." and C.C. No.86 of 2017 titled as "Navneet Sidhu & Anr. Vs Unitech Limited & Ors.".
16. No other point was argued by the counsel for the parties.
17. Sequel to the above, we accept the complaint and direct the opposite parties as under:-
Consumer Complaint No. 343 of 2017 12
(i) to refund a sum of Rs.50,00,000/- alongwith interest at the rate of 12% p.a. from the respective dates of deposit till realization as per Rule 17 of the PAPRA;
(ii) pay Rs.1,00,000/- as compensation for mental agony and harassment; and
(iii) pay Rs.21,000/- as litigation expenses.
18. Ops are directed to comply with the above directions within 45 days from the receipt of copy of the order, failing which the compensation amount shall canny interest @ 12% p.a. from the date of order till realization.
19. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
20. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER March 06, 2018 parmod