National Consumer Disputes Redressal
Unitech Limited, Real Estate Division vs Vivek Prakash on 13 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 125 OF 2015 (Against the Order dated 14/01/2015 in Complaint No. 130/2013 of the State Commission Uttar Pradesh) 1. UNITECH LIMITED, REAL ESTATE DIVISION (MARKETING), GROUND FLOOR, SIGNATURE TOWERS, SOUTH CITY, NH-8, GURGAON-122001 HARYANA ...........Appellant(s) Versus 1. VIVEK PRAKASH S/O. JAI PRAKASH, R/O. VILLAGE SUTHIYANA, POST OFFICE-KULESARA, DISTRICT-GAUTAM BUDHA NAGAR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MR. VINAY KUMAR, MEMBER For the Appellant : Mr. Mohit Jauhari, Advocate For the Respondent :
Dated : 13 Feb 2015 ORDER This appeal is directed against the order of the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, "the State Commission") dated 14.1.2015 whereby the State Commission directed the appellant/opposite party as under: -
"Opposite party is hereby directed to pay a sum of Rs.58,06,462/- alongwith interest @ 18% p.a. from the date of deposit till its realization to the complainant. The complainant is further granted compensation in the sum of Rs.5,00,000/- (five Lacs) as damages for the physical and mental torture, harassment, discomfort, undue hardship and agony caused to the complainant, payable by the OP within a period of 90 days, and if the payments are not made within 90 days the interest payable on the total sum from the date of expiry of 90 days will be @ 24 p.a till its realization. A sum of Rs.25,000/- is further allowed to the complainant towards cost of this case to be paid by the opposite party."
2. Briefly stated, facts relevant for the disposal of this appeal are that in June, 2006 the respondent/complainant booked apartment measuring 1730 sq. ft. in the project being developed by the appellant/opposite party. The allotment letter pursuant to the booking was issued on 11.9.2006. The complainant as per terms of the allotment contract till 28.02.2009 paid a sum of Rs.58,06,462/- against the consideration amount in instalments. As per the terms and conditions of allotment, the possession of the flat, complete in all respects was supposed to be delivered within three years. It is the case of the complainant that the opposite party instead of completing the project diverted the money received from him and the others to his other commercial project. Almost eight years have gone by but opposite party has failed to deliver the possession of flat. Claiming this to be deficiency in service, complainant filed the consumer complaint.
3. The State Commission, after admitting the complaint vide proceedings dated 10.9.2013 directed issue of notice to the opposite party fixing the date of hearing as 8.11.2013. On 8.11.2013 the matter was adjourned to 31.1.2014. On 31.1.2014 counsel for the opposite party appeared and filed Vakalatnama. The State Commission directed the appellant / opposite party to file written statement and also directed the parties to file their affidavit evidence and adjourned the matter to 11.03.2014. The opposite party failed to file its written statement as also the affidavit evidence. Therefore, on the application under Section 13 of the Consumer Protection Act, 1986 (in short, the Act) being moved by the complainant, the State Commission closed the right of the opposite party to file written statement and proceeded to hear the arguments and disposed of the complaint vide impugned order.
4. Learned counsel for the appellant/opposite party submits that on the date of final hearing appellant had submitted its written statement but the State Commission in a hurry declined to accept the written statement on record and forfeited the right of the appellant to file written statement and decided the complaint. It is contended that the State Commission has committed a grave error in deciding the complaint without even taking into consideration the grounds taken in the written statement which was already on record and, therefore, it is a fit case where the impugned order be set aside and the matter be remanded back to the State Commission for disposal.
5. Before adverting to the submissions made on behalf of the appellant, it would be useful to have a look on Section 13 (1) (a), Sector 13 (3) and 13 (3-A) of the Act.
"13. Procedure on admission of complaint (1) The District Forum shall, on admission of a complaint, if it relates to any goods,--
(a) refer a copy of the admitted complaint, within twenty-one days from the date of its admission to the opposite party mentioned in the complaint directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
(3) No proceedings complying with the procedure laid down in subsections [1] and [2] shall be called in question in any court on the ground that the principles of natural justice have not been complied with.
(3A) Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities:
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:
Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act.
Provided also that in the event of a complaint being disposed of after the period so specified, the District Forum shall record in writing, the reasons for the same at the time of disposing of the said complaint."
6. On reading of the above, it is clear that the opposite party on receipt of copy of the admitted complaint is required to file his written version, if any, within 30 days from the date of service and that period can be extended by the consumer forum for a period not extending 15 days. In the instant case, undisputedly, despite of service of notice of the complaint, the appellant / opposite party did not file its written version till 31.01.2014 when its counsel had put in appearance and filed vakalatnama. From the record, it is clear that the State Commission extended the time for filing of written statement on 31.01.2014 and directed the opposite party to file written statement alongwith affidavit evidence and adjourned the matter to 11.03.2014. Since the opposite party failed to file written statement till the adjourned date of hearing, the State Commission allowed the application of the complainant and closed the right of the opposite party to file written statement. We do not find any fault with the aforesaid order of the State Commission forfeiting the right of the opposite party to place written statement on record as the opposite party despite of the time given had failed to do the needful and also failed to file its affidavit evidence.
7. Coming to the merits of the case, on perusal of the record, it cannot be disputed that the complainant had booked a flat in the project undertaken by the opposite party/appellant in June, 2006 and allotment letter was issued to him on 11.9.2006. As per the terms and conditions of allotment letter the opposite party had undertaken to deliver the possession of flat complete in all respects within three years from the date of allotment. The opposite party, however, has failed to deliver possession of the flat to the respondent/complainant till date despite of having taken entire consideration amount of Rs.58,06,462/- from the respondent / complainant much earlier by 28.02.2009. Almost nine years have gone by but the opposite party has failed to deliver the possession of flat as promised. This itself amounts to deficiency in service. In the grounds of appeal, the appellant has tried to set up a defence of force majeure. The specific grounds taken by the appellant before us are reproduced as under:
"i. There was complete blockage of construction work during the period February 2008 to February 2009 in the entire region of Greater Noida by the agitating farmers for enhancing the compensation for the acquisition of land by the State of UP and allotting it to various Builders for constructing Housing complexes.
ii. Common Wealth Games during April 2010 to March 2011- the Common Wealth Games were organized in the NCR region which resulted into an extreme shortage of labour in the region as most of the labour force was employed and/or was engaged by the Government to expedite the completion of the pending projects required for the Common Wealth Games.
This has to be seen in the light of the fact that thereafter during the Common Wealth Games the labour / workers were forced to leave the NCR region for security reason which further added to the ongoing immense shortage of labour force in the NCR region and thus it became difficult for the opposite party herein to cope with the dates scheduled for completion of construction of the entire Project.
iii. Active implementation of social schemes like NREGA and JNNURM- in addition to the above due to active implementation of alluring and promising schemes floated by the Central and State Government, there was a sudden shortage of labour / workforce especially in the real estate market. The workforce / labour forces were tempted to return to their respective States due to the guaranteed employment.
iv. In and around March 2011, as much as 471 Writ petitions were filed before Hon'ble Allahabad High Court at Allahabad, by the farmers, challenging the acquisition of land by State of U.P. which had later on been allotted to various developers for the development of Housing Complex. These Writ Petition were related to almost all the villages of Noida / Greater Noida. Subsequent to passing of the judgments by Hon'ble Supreme Court in (2011) 5 SCC 533, Radheyshyam Vs. State of UP on 06.07.2011, greater Noida Authority Vs. Devendra Kumar, whereby notifications dated 12.3.2008 and 30.06.2008 for the acquisition of the land in Greater Noida was quashed. There was unrest amongst the famers of entire Noida / Greater Noida who started doing 'Dharna' in front of the projects of the various builders and halted the construction work. All the above Writ Petitions were later on clubbed together and finally heard and decided by Full Bench of Hon'ble Allahabad High Court on 21.10.2011 in leading case Writ no. 37443 of 2011,Gajraj Singh and others Vs. State of U.P. and others. It is submitted that in the entire year 2011, due to protests and agitation of the farmers, the labours had left to their native villages, resulting in acute shortage of the labour in the entire Noida / Greater Noida Region.
v. Chronic Default on the part of the flat buyers.
That chronic defaults in payments of installments on the part of other buyers in the project due to melt down in real estate sector resulting in severe resource crunch, the progress in the project got slow and resultant delay in handing over possession within the proposed time period.
The Project Unitech Habitat comprised of 18 towers totaling 902 no. of flats of various sizes, out of which 186 flat buyers were chronic defaulters during the period 2007 to 2009. The total amount due against these unit holders was nearly Rs.57 crores. This default has also affected the progress of construction of different towers of the Project to some extent causing delay in handing over of possession.
vi. Recession in the economy - That since the real estate industry is a cyclical industry that was effected by both local and national economic conditions during the year 2008-2009. While macroeconomic conditions affect the overall state of the real estate industry, local supply and demand conditions are by far more important factors affecting the real estate markets as a result of which the availability of essential resources namely the labour and various raw material became scarce.
It is thus humbly submitted by the Opposite Party that such acute shortage of labour, water and other raw materials were not in control of the Opposite Party and such reasons were not at all forseeable at the time of commencement of construction of the Project. It has to be noted that the Opposite Party cannot be held liable for things that are not in control of the Opposite Party. It is submitted that it is despite the above mentioned genuine reasons that the opposite party are trying hard to cope up with the construction schedules and as on today 10 towers have been handed over possession to respective flat buyers, h the nature of delay was such that it was not in the hands of the Opposite party."
8. We are not impressed by above plea of force majeure. The grounds to support the plea of force majeure are vague and these are general grounds which the builders are raising in almost every consumer dispute where the possession is not delivered. During the course of arguments, we asked the learned counsel for the appellant to tell us as to how much percentage of the project was constructed till 28.2.2009 when entire payment was received by the appellant/opposite party. No satisfactory answer to this query has been given. Thus, it can be safely inferred that the appellant builder has collected entire consideration amount from the complainant with no intention to complete the project within three years. Thus, in our view, the appellant has been grossly deficient in providing the stipulated service. The appellant under these circumstances cannot be permitted to hold the money of the allottee for indefinite period without performing his part of contract. Thus, we are of the view that the State Commission has rightly allowed the complaint and we find no reason jurisdictionally or otherwise to interfere with the impugned order.
9. Appeal is dismissed in limine.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... VINAY KUMAR MEMBER