State Consumer Disputes Redressal Commission
Unitech Limited vs Sh. Pushpinder Singh Sidhu on 7 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION UT CHANDIGARH First Appeal No. FA/120/2012 (Arisen out of Order Dated 02/03/2012 in Case No. CC/381/2011 of District DF-I) 1. Unitech Limited Regd. Office at #6, Community Centre Saket, New Delhi -110 017, through tis Managing Director Local Office : SCO -189-190-191, Level-1, Sector 17-C, Chandigarh ...........Appellant(s) Versus 1. Sh. Pushpinder Singh Sidhu S/o Sh. Harmel Singh Sidhu, r/o Sidhu House, Lehal Patiala through his GPA, Janinder Jain S/o Sh. Om Parkash Jain, R/o H.No. 2546, Sector 47-C, Chandigarh 2. J.D. Realtors Ltd. SCO No. 317-318, Level 1, Sector 35-B, Chandigarh - 160 022, through its Director ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE Jasbir Singh PRESIDENT DEV RAJ MEMBER PADMA PANDEY MEMBER For the Appellant: For the Respondent: Dated : 07 Jun 2017 Final Order / Judgement STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 120 of 2012 Date of Remand : 19.01.2017 Date of Decision : 07.06.2017 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 17-C, Chandigarh. ......Appellant V e r s u s 1. Sh. Pushpinder Singh Sidhu, s/o Shri Harmel Singh Sidhu, R/o Sidhu House, Lehal, Patiala, through his General Power of Attorney, Janinder Jain s/o Sh. Om Parkash Jain, R/o House No.2546, Sector 47-C, Chandigarh. 2. J.D. Realtors Ltd., SCO 317-318, Level 1, Sector 35-B, Chandigarh-160 022 through its Director. ....Respondents Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Mrs. Vertika H. Singh, Advocate for the appellant.
Sh. Sidharth Grover, Advocate for respondent No.1/complainant.
PER DEV RAJ, MEMBER.
Earlier this appeal directed against the order dated 02.03.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), was accepted by this Commission vide order dated 19.07.2012 and the order impugned was set aside. The said order dated 19.07.2012 was challenged in Revision Petition bearing No.4022 of 2012 by respondent No.1/complainant. The Hon'ble National Consumer Disputes Redressal Commission (in short 'National Commission') vide order dated 19.1.2017 allowed the Revision Petition and the order passed by this Commission was set aside, with a direction to decide the appeal afresh after giving opportunity to both the parties of being heard.
2. The facts, in brief, are that the complainant, booked a flat with Opposite Party No.1, through Opposite Party No.2 (authorized agent of Opposite Party No.1), by paying an initial sum of Rs.6,50,000/-, vide cheque dated 14.6.2006 (Ann.C-2). The Project was finally launched by Opposite Party No.1, in July 2007, as a result whereof, allotment letter dated 31.7.2007 (infact 07.11.2006), for Apartment No.204, Floor-02 of Super Area 194.7248 sq.mtr. (approx. 2096 sq.ft.), HBTN Tower-08, Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh, was issued to him. It was stated that on perusal of the details, set out in the allotment letter, it was revealed that the actual area design etc., of the apartment, in question, were not as per the representation, made earlier by Opposite Party No.2. It was further stated that the complainant was induced by Opposite Party No.2, to deposit the amount aforesaid, at the pre-launch stage. It was further stated that since the project never turned out to be, as promised and shown, the complainant did not accept the allotment letter/contract. It was further stated that the complainant, expressed his desire, to have his application money refunded to him, which was deposited alongwith the application at the pre-launch stage. It was further stated that the complainant, visited Opposite Parties, a number of times, seeking the refund of amount, and even went to the site at Noida, but did not find any trace of the project coming up even in the beginning of the year 2008. It was further stated that this showed that the complainant had been befooled by the Opposite Parties, by inducing him to part with the hard earned money, deposited by him. It was further stated that Opposite Party 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. A notice dated 31.3.2010 vide Ann.C-4, was sent to Opposite Party No.1, at Gurgaon and Noida Office, for refund of the amount, in question, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3. Opposite Party No.1, in its written version, pleaded that the complainant was not a consumer. It was further pleaded that the complaint was barred by time. It was stated that the District Forum, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint, as there was an arbitration clause, contained in the allotment letter, and the matter was referable to the Arbitrator. It was admitted that a sum of Rs.6,50,000/-, for booking the apartment, was deposited by the complainant, at pre-launch stage of the scheme. It was further stated that the allotment letter Annexure A-1, duly signed by the complainant, was sent to him, which contained all the terms and conditions. It was denied that any communication was received by Opposite Party No.1, from the complainant, for the refund of amount. It was further stated that, on the other hand, Opposite Party No.1, had been asking the complainant, to make the payment of installments, as per the payment plan, but he did not do so. It was further started that the complainant, thus, being a defaulter, was not entitled to the relief, sought for, as per the terms and conditions of the allotment letter, which was duly accepted by him, as the contract stood cancelled and the amount stood forfeited. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, in its written version, while admitting the factual matrix of the booking of apartment and payment of Rs.6,50,000/-, at that time, stated that it forwarded the request of the complainant, to Opposite Party No.1, for refund of the amount. It was denied that Opposite Party No.2, befooled the complainant, in any manner. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After remand, on 22.02.2017, Counsel for the respondent No.1/complainant stated that amount of Rs.10,000/- as directed by the Hon'ble National Commission vide order dated 19.01.2017, had been deposited in consumer Legal Aid Account of this Commission on 21.02.2017. The matter was adjourned to 23.03.2017. On 23.03.2017, none appeared on behalf of the appellant and the appeal was adjourned to 07.04.2017 subject to depositing cost of Rs.3,000/- by the appellant in the Consumer Legal Aid Account. On the said date i.e. 07.04.2017, Counsel for the appellant submitted receipt dated 06.04.2017 qua deposit of cost imposed and the matter was adjourned to 04.05.2017, on which date, none came present on behalf of respondent No.1/complainant and the matter was adjourned to 12.05.2017 for hearing arguments.
7. We have heard Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
8. It is evident from record that the complainant booked an apartment by depositing booking amount of Rs.6,50,000/- vide cheque dated 14.6.2006(Annexure C-2) and he was issued allotment of Apartment No.204, Floor-2, HBTN Tower-8, measuring 2096 sq.ft. in Unitech Habitat, Plot No.9, Sector Pi-II, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh (Annexure -I at page 60 of District Forum file). Total price of the apartment as indicated in Annexure- A payment plan (Page 75 of the District Forum file) was Rs.68,29,952/- plus other charges in the sum of Rs.3,84,552/-, totaling Rs.72,14,504/-. The allotment letter was duly signed by the complainant and the authorized signatory of the Opposite Party. Admittedly except the booking amount in the sum of Rs.6,50,000/- , the complainant did not make payment of remaining installments as per payment schedule (at page 76 of the District Forum file), despite various letters dated 26.3.2010, 1.12.2010, 24.12.2010, 19.1.2011, 11.4.2011 and 27.4.2011 (at page 86,87,88,89, 90 and 91 of District Forum file). Clauses 2.f and 2.g of the Allotment Letter Annexure A-1 read as under ;
" 2.f Earnest/Registration Amount:
The payment of Earnest/Registration Amount is to ensure fulfillment of the terms and conditions as stipulated in the application & this agreed. An amount equivalent to 20% payable as per para 2.a above shall always be deemed to have been paid by the Allottee(s) as and by way of earnest/Registration Amount."
"2.g Failure/Delay in Payment:
In the event Allottee(s) fails to pay any instalment(s) with interest within 90 days from due date, the Developer shall have the right to cancel the allotment and forfeit the entire amount of Earnest/Registration Money deposited by the Allottee(s) and the Allottee(s) shall be left with no right or lien on the said Apartment and the Developer shall be free to sell the same. The amount paid, if any, over and above the Earnest/Registration money shall be refunded by the Developer without interest after adjustment of interest accrued on the delayed payment(s), if any, due from the Allottee(s). "
When complainant, despite a number of communications sent by Opposite Party No.1 , failed to pay instalments with interest within 90 days from the due date, allotment stood cancelled and the Earnest/Registration money of Rs.6,50,000/- stood forfeited. Since forfeiture was in terms of the provision in the Allotment Letter, the appellant/OP was not deficient and finding of the District Forum that there was deficiency in rendering service on the part of the OPs for not refunding the amount of Rs.6,50,000/-was thus not correct.
9. It was argued by Counsel for the respondent No.1/complainant that pre-launch area represented to him was less and area of the Unit which was allotted was more. Reliance has been placed on Annexure A2 & A3 which are copies of emails at page 45 & 46 of the District Forum file. Perusal of email dated 3.2.2007 Annexure A-2/ (C-3) reveals that same was not sent to the complainant. It was from Mr.Anurag Dwivedi to some undisclosed recipient relating to other allottee of MU Sector. Email dated 1.3.2007 Annexure A-3/(C3) was from Dr.Devinder Gupta for its coming up project at Greater Noida in front of Unitech's Habitat. Firstly both these emails did not relate to the complainant. Secondly these emails pertained to the period after the issuance of Allotment Letter dated 7.11.2006 and making of payment by the complainant on 14.6.2006 (Annexure C-2). No reliance, therefore, could be placed by the complainant on these emails to say that some other Apartment with lesser area was promised to be allotted to him but the allotment was made of some other Apartment with increased area in a different scheme. The District Forum was, therefore, wrong in placing reliance upon the same.
10. Counsel for respondent No.1/complainant also placed reliance on letter dated 31.3.2010 (Annexure C4) in the complaint and A-5 in the appeal). It was argued that the complainant through this letter requested the appellant/OP No.1 to refund the amount with interest. On the other hand, Counsel for the appellant/OP No.1 submitted that letter Annexure C-4 was not received by it. It was also so mentioned in para 5 of its reply. The Counsel further argued that firstly there was no proof viz-a-viz the mode by which the aforesaid letter was sent, secondly assuming that letter was sent and when we go through the contents of the aforesaid letter, it transpires that there is no averment qua lesser area which the appellant/OP No.1 represented to the complainant before allotment and that area was increased later on.
11. There is also weight in the plea of Counsel for the appellant/OP No.1 that the Unit was allotted in the year,2006 and as already stated above, when respondent No.1/complainant did not make further payment, the allotment stood cancelled, and the complaint was thus barred by limitation. Rather contents of the letter dated 31.3.2010 reveal that the complainant admitted that OP No.1 was sending demand letters for payment time and again.
12. No other point, was urged by the Counsel for the parties.
13. In view of position stated above, there was no deficiency on the part of the Opposite Parties. The District Forum erred in allowing the complaint.
14. The order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
15. For the reasons recorded above, the appeal, is accepted. The impugned order is set aside.
16. Certified Copies of this order be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion.
Pronounced. [HON'BLE MR. JUSTICE Jasbir Singh] PRESIDENT [ DEV RAJ] MEMBER [ PADMA PANDEY] MEMBER