State Consumer Disputes Redressal Commission
Gurinder Kaur Virk vs Unitech Ltd. on 18 March, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.181 of 2015
Date of institution : 27.07.2015
Date of decision : 18.03.2016
Gurinder Kaur Virk wife of Shri Faqir Singh Virk, aged about 70
years, r/o H.No.64, Sector 69, Mohali.
.......Complainant
Versus
1. Unitech Limited, Marketing Office at SCO No.189-190-191,
Sector 17-C, Chandigarh through its Authorized
Signatory/Managing Director.
2. Unitech Limited, Registered Office at 6, Community Centre,
Saket, New Delhi-110017.
3. Unitech Limited, Site Office : Uniworld City, Sector 97, Mohali,
SAS Nagar.
........Opposite parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Present:-
For the complainant : None.
For the opposite parties: Ms. Vertika H. Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Gurinder Kaur Virk, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the Act") for the issuance of following directions to the Consumer Complaint No.181 of 2015 2 opposite parties-Unitech Limited (hereinafter referred to as "opposite party"):-
i) to deliver the possession of the plot in question or in the alternative to refund the amount of Rs.60,09,933/-, along with interest at the rate of 10% per annum from 18.3.2011 till the payment of that amount;
ii) to pay compensation of Rs.2,50,000/-, for the mental agony and physical harassment caused to her on account of the non-offering of the possession as per the Scheduled time and in the alternate in not refunding the amount;
iii) to pay Rs.55,000/-, as the litigation costs;
iv) to pay penalty at the rate of Rs.50/- per square yard per month from the promised date of delivery of possession i.e. 18.3.2011.
She alleged, in her complaint, that the opposite party floated Scheme for the allotment of residential plots in the Mega Township Project known as "UNIWORLD CITY", by way of various publications/publicity by alleging that the Township had been approved by the Punjab Government. It was also averred by it that it was in possession of sufficient land in Sectors 97, 106 and 107, Mohali, Punjab. She was allotted Plot No.0091, Block-C (Gardens), approximately 358.80 square yards in that Project in Sector 97 (hereinafter referred to as "the plot"). Thereafter Buyer's Agreement dated 18.3.2008 was executed between them and as per that Consumer Complaint No.181 of 2015 3 Agreement the total sale price of the plot was Rs.62,03,652/-. As per the Payment Schedule, the entire payment, except Rs.2,65,512/-, was to be made before 1.9.2010. She had been making the payments as per the Schedule and in case of delayed payments, she paid the interest at the rate of 18%. In all, she paid a sum of Rs.60,09,303/-. As per clause 4(a)(i) of the Agreement, the opposite party was bound to deliver the possession of the plot to her within 36 months of the date of execution of the Agreement; which was 18.3.2008, but it failed to deliver the possession by the agreed date. By virtue of clause 4(c) of the Agreement it is liable to pay the penalty at the rate of Rs.50/- per square yard per month for the delay in possession. She is 70 years old housewife and had invested her hard earned money in the plot, as she wanted to construct a house for spending her old age with her family. She is suffering from various diseases and can hardly walk. All her hopes have been shattered on account of the failure of the opposite party to deliver the possession of the plot. No construction activities were going on at the spot. She made a number of requests to the opposite party to deliver the possession of the plot but every time she was asked to wait for six months. She had written letter dated 19.6.2014 to it to know the fate of the plot so allotted to her and for which she had made the payments and also made a request to hand over the possession thereof as early as possible and to pay the sum of Rs.4,34,148/-; being the delayed charges as per the Agreement. No response to that letter was received and she sent another letter Consumer Complaint No.181 of 2015 4 dated 30.7.2014 with the similar request but the opposite party failed to do the needful. All these acts on its part amount to deficiency in service and adoption of unfair trade practice and as a result of that she suffered harassment and has undergone mental agony and inconvenience.
2. The complaint was contested by the opposite party. In the written reply it did not dispute that the Scheme for the allotment of residential plots in its Mega Township known as "UNIWORLD CITY"
was floated by it, which was given due publicity and that the complainant was allotted the plot in that Project for the total sale price of Rs.62,03,652/- and that she made the payments, as mentioned in the complaint after the Buyer's Agreement dated 18.3.2008 was executed. It admitted that the period for handing over of the possession of the plot was 36 months and the same was not delivered during that period. While denying the other allegations made in the complaint, it averred that the complainant had opted for Time Linked Payment Plan and all the payments made by her were deposited in the Bank Account, which is in New Delhi/Gurgaon. The period of 36 months for delivering the possession was only tentative time period, which was subject to force majeure circumstances. No commitment was given by it to hand over the possession to the complainant within 36 months. There was global melt down of economy, wherein the foreign investors, as anticipated by it, refrained from any kind of investment in India and there was total cash crunch. It is facing extreme financial hardship due to recession Consumer Complaint No.181 of 2015 5 in Reality Market. Non-handing over the possession was on account of the reasons beyond its control. It was also facing problems with regard to providing of electricity in this area, as the P.S.P.C.L. had been raising objections on one pretext or the other. It was to provide Sub-Station of 66 KV in the area but on account of the fact that the possession of the Flats and Plots were to be given, it made a request to the said Corporation to provide at least 1 MW connection to the Project in 2010. Since then the Corporation raised various formalities to be completed on its part for the supply of the 1 MW connection and all those formalities were complied in the year 2010 itself. That Corporation kept on raising objections regarding the release of the connection. It further imposed the condition of Bank guarantee for providing that connection and the communication is still going on between it and the Corporation. On account of the non- availability of the electricity the development work was delayed and there was also delay in providing the amenities. In fact, it has already fulfilled its obligation by offering the possession of the plot to the complainant, vide letter dated 1.8.2015. As per clause 8 (b) of the Agreement, it was entitled to the reasonable extension of time regarding the delivery of possession in case it faced force majeure circumstances and the force majeure circumstance was the global market recession in real estate sector. As per clause 4(c) of the Agreement, the compensation for delay in handing over the possession, if payable, was to be adjusted at the time of final notice of the possession. There is no deficiency in service on its part nor it Consumer Complaint No.181 of 2015 6 adopted any unfair trade practice. The complainant has no cause of action to file this complaint. The facts, as stated in the complaint, do not constitute 'consumer dispute', as defined in Section 2(e) of the Act. The issues raised relate to the contractual matter arising out of the terms and conditions of the Agreement and the same can only be adjudicated in civil proceedings. The complainant is already permanent resident of Mohali and is residing in her own house in developed Sector. She invested in the plot for resale purposes but could not resell the same due to slump in real estate market. She does not fall under the definition of 'consumer', as contained in the Act and the complaint filed by her is not maintainable. The Buyer's Agreement was executed between the parties at Gurgaon and the demands were also raised from that place and the amounts were deposited in its Bank account at New Delhi. Therefore, this Commission has no territorial jurisdiction to entertain this complaint. It prayed for the dismissal of the complaint with heavy costs; being false, frivolous and vexatious.
3. To prove the allegations made in the complaint the complainant proved on record her affidavit Ex.CA and documents Ex.C-1 to Ex.C-24. On the other hand, the opposite party proved on record the affidavit of its authorized representative Lalit Gupta Ex.OPA and documents Ex.OP-1 to Ex.OP-4.
4. We have carefully gone through the averments of the parties, the evidence produced by them in support of their respective averments and have heard learned counsel for the opposite party. Consumer Complaint No.181 of 2015 7
5. The arguments were partly heard on 10.3.2016 on which date the learned counsel for the complainant appeared and advanced arguments. It was submitted by him that from the evidence produced by the complainant, it stands proved that the plot was allotted to the complainant by the opposite party regarding which the Buyer's Agreement Ex.C-1 was executed and all the payments were made in accordance with the terms and conditions of that Agreement. After the complainant fulfilled her part of the contract, she became entitled to the possession of the plot, which was to be delivered within 36 months of the date of execution of the Agreement. The Agreement was executed on 18.3.2008 and, as such, possession was to be delivered to her on or before 18.3.2011. Admittedly the possession was not delivered by the opposite party by that date and the same amounts to deficiency in service on its part. From the evidence it also stands proved that the complainant had been repeatedly requesting the opposite party to deliver the possession of the plot but those requests fell on its deaf ears and no steps were taken till the complaint was filed. That act on the part of the opposite party amounts to adopting unfair trade practice. According to the opposite party, the possession was offered, vide letter dated 1.8.2015 Ex.OP-4 and even from that letter it cannot be concluded that the plot was fully developed before that offer was made and in fact it was a sham offer by the opposite party. The complainant was not expected to wait for all this time for possession and she became entitled to the refund of the amount also. For the Consumer Complaint No.181 of 2015 8 delay in possession the opposite party is liable to pay penalty as stipulated by clause 4 of the Agreement and in addition to that it is also liable to pay compensation for the harassment and mental agony suffered by the complainant. In case this Commission is not inclined to allow the request regarding the possession of the plot, then the complainant is entitled to refund of the amount, already deposited by her, along with interest at the rate mentioned in the complaint.
6. On the other hand, it was submitted by the learned counsel for the opposite party that the period of 36 months, so mentioned in the Agreement, was only the tentative period and the same was liable to be extended in case of force majeure circumstances faced by the opposite party. It stands proved on the record from the affidavit of Lalit Gupta, Ex.OPA, that there were force majeure circumstances, which prevented the opposite party to deliver the possession during the stipulated period. There was global market recession in the real estate and the opposite party was facing financial crunch. In addition to that the P.S.P.C.L. was creating hurdle in the development work by not releasing the electric connection in-spite of the fulfillment of all the formalities. In these circumstances the opposite party was entitled to the extension in the time for delivering the possession and the possession having been offered, vide letter Ex.OP-4, it cannot be said that there was any deficiency in service on the part of the opposite party or that it adopted unfair trade practice. The opposite party is ready to deliver fully developed plot Consumer Complaint No.181 of 2015 9 to the complainant, as and when she requires and, therefore, she is not entitled to any of the reliefs, as claimed in the complaint.
7. It is very much clear from the averments of the parties and the arguments advanced by their counsel that the complainant had performed her part of the contract and paid the instalments towards the price of the plot as per the Payment Schedule contained in the Agreement and for delayed payments she paid the interest also. The Agreement contains promises and reciprocal promises. Once the instalments were paid by the complainant, as per the Payment Schedule there was reciprocal promise on the part of the opposite party to deliver the possession as per the terms of the Agreement. As per clause 4(a), the possession was to be delivered by it within 36 months of the date of the execution itself. Admittedly the Agreement was executed on 18.3.2008 and, as such, the possession of fully developed plot was to be delivered to the complainant on or before 18.3.2011. We cannot endorse the arguments raised by the learned counsel for the opposite party that the said period of 36 months was a tentative period. It was not a tentative period though as per clause 4(a), the same was subject to force majeure circumstances. The onus was upon the opposite party to prove that the non-delivery of the possession of the fully developed plot during that period was on account of the circumstances beyond its control. According to it, those circumstances were the global recession in the real estate market; as a result of which it was facing financial crunch. This was not an Consumer Complaint No.181 of 2015 10 unforeseen circumstance. The opposite party having taken up such a huge Project was to keep in mind such a situation could have arisen and should have been ready to face the same. It cannot be held to be a force majeure circumstance entitling the opposite party for the extension of the period of 36 months. The other circumstance mentioned in the written reply is the non-action on the part of the Power Corporation to supply 1 MW connection in-spite of the fact that the opposite party applied for the same in the year 2011. In support of that plea it proved on the record letter dated 9.9.2011 written by it to the Power Corporation for expediting the release of 1 MW connection for going ahead with the Project in a faster manner. It omitted to tender in evidence the letters written by the Power Corporation to it and the Secretary, Housing and Urban Development; which were filed along with the written reply. A perusal thereof shows that the Power Corporation had been writing for the fulfilment of the formalities and the delay was caused on account of the non-fulfilment of those formalities in time. It is strange that the opposite party had written for the release of 1MW connection only after 36 months when the period for delivering the possession had expired. The non-taking of steps in that direction immediately after the allotment of the plots clearly amounts to unfair trade practice on the part of the opposite party. After the period for delivering the possession was expired, it had started creating evidence to make excuses for the delay in the delivery of possession. This delay on the part of the opposite party certainly Consumer Complaint No.181 of 2015 11 amounts to deficiency in service on its part and also amounts to adoption of unfair trade practice.
8. It was only after the present complaint was filed on 27.7.2015 that the offer of possession was made by the opposite party on 1.8.2015, vide letter Ex.OP-4. Even from this letter it cannot be concluded that before the possession was offered the plot was fully developed. It is mentioned therein that the development activities/activation of essential services in the Project are in full swing and that significant progress has been made with respect to the matters mentioned therein. It is not mentioned therein that all the works had been completed. It appears that after the complaint was filed, this offer was made to the complainant for possession and it cannot be said to be a valid offer of possession; as it cannot be concluded from the evidence produced on the record that the plot had been fully developed. The Agreement Ex.C-1 stipulated the possession of the fully developed plot and not of the undeveloped plot. No one can be asked to part with money running in lakhs for undeveloped plot on which it is not possible to raise the construction.
9. Once it is proved that the possession of the plot was not delivered to the complainant within stipulated period and that there was no such force majeure circumstances for the extension of that period, the opposite party is liable to pay the penalty, as stipulated by clause 4(c) of the Agreement. For the deficiency in service and the adoption of unfair trade practice, it is liable to pay compensation to the complainant for the harassment and mental agony suffered by Consumer Complaint No.181 of 2015 12 her, as she could not construct the plot on account of the non- delivery of possession and was deprived of the opportunity to live in her own built house during her old age.
10. Accordingly the complaint is allowed and following directions are issued to the opposite party:-
i) to deliver the possession of fully developed plot to the complainant within the period of three months;
ii) to pay penalty at the rate of Rs.50/- per square yard per month of the area of the plot from 18.3.2011 till the delivery of possession of fully developed plot;
iii) to pay compensation of Rs.2,00,000/- for the harassment and mental agony suffered by the complainant;
iv) to pay Rs.11,000/-, as costs of litigation.
11. The arguments in this case were heard on 11.3.2016 and the order was reserved. Now, the order be communicated to the parties.
12. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER March 18, 2016 Bansal Consumer Complaint No.181 of 2015 13