State Consumer Disputes Redressal Commission
Rajan Bhateja & Another vs M/S Unicity Projects, Through Its ... on 1 April, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 4 of 2014
Date of institution: 8.1.2014
Date of Decision: 1.4.2015
1. Rajan Bhateja S/o Shri R.K. Bhateja, R/o D-1033, Gaur Green City,
Indrapuram, Ghaziabad (presently residing at Flat No. 312 Sadashiv
Alpine Residency, Chandigarh-Ambala Highway, Marryland,
Zirakpur (District-Mohali), Punjab.
2. Ramesh Kumar Bhateja S/o Sh. Niamat Rai, R/o D-1033, Gaur
Green City, Indrapuram, Ghaziabad (presently residing at Flat No.
312 Sadashiv Alpine Residency, Chandigarh-Ambala Highway,
Marryland, Zirakpur (District-Mohali), Punjab.
Complainants
Versus
1. M/s Unicity Projects, SCO 2, RM Plaza, Near Railway Crossing
Panchkula Road, NAC Zirakpur, Distt. Mohali, Punjab through its
Office Manager.
2. Shri Naveen Bansal Partner, M/s Unicity Projects, SCO 2, RM Plaza,
Near Railway Crossing Panchkula Road, NAC Zirakpur, Distt.
Mohali, Punjab.
3. Shri Sushil Bindal, M/s Unicity Projects, SCO 2, RM Plaza, Near
Railway Crossing Panchkula Road, NAC Zirakpur, Distt. Mohali,
Punjab.
4. Shri Sumeet Garg, Partner, M/s Unicity Projects, SCO 2, RM Plaza,
Near Railway Crossing Panchkula Road, NAC Zirakpur, Distt.
Mohali, Punjab.
5. Shri Jiwan Bansal son of Shri Girdhari Lal, Partner, M/s Unicity
Projects, SCO 2, RM Plaza, Near Railway Crossing Panchkula
Road, NAC Zirakpur, Distt. Mohali, Punjab.
Opposite Parties
2
CONSUMER COMPLAINT NO. 4 OF 2014
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Shri Harcharan Singh Guram, Member
Present:-
For the complainants : Sh. Vikram Bajaj, Advocate
For opposite parties No.1&2: Sh. Amish Goel, Advocate
For opposite parties No. 3to5: Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The complainant has filed this complaint under the Consumer Protection Act (in short the Act) against the opposite parties (in short the Ops) on the allegations that in order to start some independent small business venture at Zirakpur to earn their livelihood by way of self employment, both the complainants left their jobs and approached the Ops, who had launched their project for office suite and accordingly, one office suite having an area of 551 square feet was allotted to them and buyer's agreement was executed between the parties on 28.8.2010. Its total cost was Rs. 19,28,500/- out of which a sum of Rs. 3,41,620/- was paid on 3.7.2010, Rs. 5 lacs were paid on 27.8.2010 and Rs. 5,86,880/- were paid on 27.8.2010. A sum of Rs. 3,35,000/- was required to be paid by the complainant on or before 3.9.2010 and they paid Rs. 3 CONSUMER COMPLAINT NO. 4 OF 2014 2,10,000/- on 3.9.2010 and Rs. 1,25,000/- on 16.11.2010 and only a sum of Rs. 1,65,000/- remained to be paid, which was required to be paid at the time of delivery of the possession. As per the agreement, the possession was to be delivered on or before 31.12.2010. However, the Ops had deliberately left the project incomplete and did not deliver the possession and invested the money in their other projects i.e. Unicity Business Park, Vishranti Behind Best Price, Ambala NH-21, NAC, Zirakpur and Unicity Homes, Panchkula. In the meantime the price of the office space has increased from Rs. 500/- to Rs. 4000/- per sq. ft. As per Clause 29 of the agreement, the Ops were liable to pay to the complainant a return of Rs. 31,400/- per month on the investment till he was handed over the possession by the Ops to the complainant, which they had stopped from October, 2012. According to Clause 30 in case of delay in delivery of possession, the Ops were bound to pay Rs. 5/- per Sq. Ft. per month. The complainants called upon Ops for several times but with no result. Even the notices were sent through SMS from their counsel Mobile Number 98140-13764 but with no result. It has been alleged that there was unfair trade practice or deficiency in services on the part of the Ops. Hence, the complaint with a direction to the Ops to pay monthly return of Rs. 31,400/- from 1.10.2012, penalty for delay in possession @ Rs. 5/- per sq. ft. per month w.e.f. 1.1.2011, return the basic amount of Rs. 18,73,493/- alongwith interest @ 18% and cost of litigation Rs. 44,000/-.
2. The complaint was contested by the Ops, who filed the written reply taking preliminary objections that the complaint was 4 CONSUMER COMPLAINT NO. 4 OF 2014 liable to be dismissed on the ground that at the time of allotment buyer's agreement was entered into between the parties and the parties were to be governed by the terms and conditions of that agreement and the complainant cannot re-write the new terms and conditions; no cause of action had arisen to the complainant to file this complaint because the complainant had no locus-standi to file the complaint, the delay had occurred due to construction of the Railway Over Bridge, which took almost three years to complete and that the complainant had not approached the Commission with clean hands. On merits, the averments of the complainant were denied. However, it was admitted to the extent that office space 551 sq. ft. was allotted to the complainant. Payment of Rs. 3,35,000/- was admitted. Other averments were denied. No physical possession of the unit was given. Delay had occurred due to construction of Railway Over Bridge(in short ROB). It was denied that the complainant suffered any physical and mental harassment on account of delay in delivery of the possession. The complaint was false and frivolous, therefore, liable to be dismissed under Section 26 of the of the Act.
3. The parties lead their evidence in support of their contentions.
4. In support of his allegations, the complainant had tendered into evidence affidavit of Rajan Bhateja Exs. C-A & B, brochure Ex. C-1, relieving letter Ex. C-2, terms of appointment Ex. C-3, application form Ex. C-4, agreement Ex. C-5, allotment letter Ex. C-6, receipts of payments Exs. C-7 to 11, IT Return Exs. C-12 to 15, order of DF Ex. C-16, news report Ex. C-17. On the other hand, OP 5 CONSUMER COMPLAINT NO. 4 OF 2014 Nos. 1 & 2 had tendered into evidence affidavit of Naveen Bansal Ex. OP-A, reply Ex. Op-1, public notices Exs. Op-2 & 3.
5. We have heard the learned counsel for the parties and have gone through the written arguments submitted by counsel for OP Nos. 1 & 2.
6. The allotment of office space to the extent of 551 Sq. Ft. in favour of the complainant has been admitted between the parties. The execution of the buyer's agreement has been admitted. According to this agreement (Ex. C-5), the payments were made as under:-
"Rs. 3,41,620/- (Three Lakhs Fourty One Six Hundred and Twenty only) is paid through Demand Draft No. 191463, State Bank of Bikaner & Jaipur in favour of M/s Unicity Projects at Chandigarh on 3rd July 2010.
Rs. 5,00,000/- (Five Lakhs only) is paid through Demand Draft No. 191622, State Bank of Bikaner & Jaipur in favour of M/s Unicity Projects at Chandigarh on 27th August 2010. Rs. 5,86,880/- (Five Lakhs Eighty Six Thousand Eight Hundred Eighty only) is paid through Demand Draft No. 191623, State Bank of Bikaner & Jaipur on 27th August 2010. Rs. 3,35,000/- (Three Lakhs Thirty Five Thousand only) is payable through local chq/DD in favour of M/s Unicity Projects payable at Chandigarh by 3rd September 2010. Rs. 1,65,000/- (One Lakh Sixty Five Thousand only) is payable through local chq / DD in favour of M/s Unicity Projects payable at Chandigarh at the time of possession."6
CONSUMER COMPLAINT NO. 4 OF 2014
7. Whereas the complainant has alleged that he had paid Rs. 18,73,493/- to the Ops and only a sum of Rs. 1,65,000/- was outstanding, which was required to be paid at the time of delivery of the possession according to agreement Ex. C-5. He has placed on the record the receipt issued by the Op dated 25.8.2010 for a sum of Rs. 3,41,620/- Ex. C-7, Rs. 5 lacs dated 27.8.2010 Ex. C-8, Rs. 5,86,880/- dated 27.8.2010 Ex. C-9, then a cheque of Rs. 3,41,620/- have been placed on the record. In the written reply, the Ops have not denied these payments. Rather in para Nos. 4 & 6 these payments were admitted. According to agreement Clause 30, the possession was to be delivered as on 31.12.2010, failing which the complainant allottee will be entitled to get Rs. 5/- per sq. ft. per month and the seller was also liable to pay to the borrower a return on investment a sum of Rs. 31,400/- per month till possession is offered by the seller. However, it has been argued by the counsel for the complainant that the OP failed to deliver the possession of the office space by 31.12.2010 as per the agreement Ex. C-5. They also failed to pay the penalty as well as investment return @ Rs. 31,400/- per month w.e.f. 1.10.2012. Accordingly, it was requested that the claim of the complainant be accepted. Whereas OP in its written reply and arguments have taken the various points for dismissal of the complaint. He has stated that the delay in delivery of the possession was due to construction of ROB. He has placed on the record the letter received from National Highway Authority of India dated 20.12.2014 Ex. Op-1 vide which it was stated that the work on ROB was started on 1.3.2008 completed on 22.3.2012 and that was the 7 CONSUMER COMPLAINT NO. 4 OF 2014 reason for delay in completion of the project and is relied upon the judgment "Richa & Co. versus DLF Universal Ltd. & Anr." IV (2012) CPJ 597 (NC). In that case the complainant was a Limited Company and allegations were not giving the possession in time and that the office space cannot be for earning its livelihood. However, each case is to be decided on its facts. In the present case, the complainants are individuals and are not private limited company. They have stated that complainant No. 1 had left the job of Videocon Industries Ltd. and that complainant No. 2 had retired from State Bank of Bikaner and Jaipur and was working with Muthoot Finance Ltd. and consolidated salary of Rs. 22,000/-. He has also placed on the record reliving letter of Rajan Bhateja from Videocon Industries Ltd. Ex. C-2 and it was mentioned that he get in their Company from 21.4.2010 to 10.4.2012. Ex. C-3 is the letter of Muthoot Group vide which Ramesh Kumar Bhateja had joined that Group on 17.1.2011 and in the complaint they have alleged that they had purchased this office suite to launch their small venture to earn their livelihood, therefore, according to the provisions under Section 2(1)(d)(1) read with proviso, the complainant comes within the definition of the consumer. The Ops have not placed on the record that the complainants were doing some other business or had any other source of income and that this office space was not purchased to earn their livelihood for their self employment. Therefore, we do not agree with the plea taken by the OPs that the complainant does not come within the definition of the consumer.
8CONSUMER COMPLAINT NO. 4 OF 2014
7. With regard to delay in the completion of the project, it has been stated that due to construction of ROB, there was delay in completion of the project. He has placed on the record one letter received from National Highway Authority of India under the R.T.I. Ex. OP-1, according to which the work was started from 1.3.2008 and completed on 22.3.2012 whereas the application for allotment of office space was given by the complainants on 8.7.2010 and Buyer's agreement between the parties was executed on 28.8.2010, therefore, at that time, the Ops were having the knowledge that the construction of the ROB was in progress, therefore, they will not be able to complete the construction, therefore, they should not have given the outer date for delivering the possession as 31.12.2010. Even otherwise it is a matter of common knowledge that when this ROB was under construction alternative route was provided for passing of the vehicles. The Ops have not placed on the record any site plan that in view of the situation of the complex located at such place that construction was not possible, therefore, the plea taken by the OPs was afterthought. To support this preposition, he has relied upon the judgment I (2011) CPJ 208 (NC) "K.C. Sharma versus Ghaziabad Development Authority". In that case, it was held that due to stay by the Hon'ble Court, it was bound the control of the Ops to deliver the possession. But here there was no stay of any High Court. Construction of ROB was in progress at the time of agreement, therefore, he had the full knowledge of the construction of the ROB when he had agreed to deliver the possession on a specific date, Therefore, we do not agree with the plea raised by the counsel for the 9 CONSUMER COMPLAINT NO. 4 OF 2014 OPs that delay in delivery of possession was on account of construction of ROB.
8. Another plea has been taken by the Ops that the complaint is barred by limitation. The possession was to be delivered on 31.12.2010 whereas the complaint was filed firstly before the District Forum on 17.6.2013 and then before this Commission on 8.1.2014 as the District Forum had returned the complaint for want of pecuniary jurisdiction. The certified copy of the order passed by the District Forum in the said complaint has been placed on the record as Ex. C-16 passed on 25.11.2013, therefore, even if the date of filing of the complaint before the District Forum is taken that was barred by limitation because under Section 24A of the CP Act, the limitation to file the complaint is two years. In support of this plea, he has relied upon the judgment "M/s NIIT Ltd. versus Ms. Pooja Chugh" in R.P. No. 2416 of 2007 decided on 25.5.2012 vide which it was observed that a duty has been cast upon the Commission while admitting the complaint to show that it is within the limitation and in case it is beyond limitation, sufficient cause for not filing the complaint within the limitation period and there is no application to condone the delay, if any. However, in case we go through the averments as alleged in the complaint, it is not only the date when the office suite was booked but the entire facts have to be taken into consideration while determining the date of limitation. No doubt that the date for delivering of the possession was given as 31.12.2010 and after that the Ops were required to pay monthly return at the rate of Rs. 31,400/- and they have paid upto 30.9.2012 and after that they 10 CONSUMER COMPLAINT NO. 4 OF 2014 stopped it. Therefore, cause of action also arisen on 1.10.2012 and then had not delivered the possession or did not write any letter that they are unable to deliver the possession, therefore, the complainant was in the hope that someday the possession will be delivered to him. Rather in reply to the complaint, they have taken the plea that the delay was due to construction of ROB, therefore, till there is a denial not to deliver the possession, it was a continuous cause of action till the delivery of the possession, therefore, we are again constrained to take the view that the present complaint is not barred by limitation. A reference can be made to the latest judgment I(2015) CPJ 87 (UT Chd.) "Daljit Singh Saini & Anr. Versus Parsvnath Developers Limited & Ors.". In that case, in para No. 15 (relevant extract), it has been mentioned as under:-
"........It may be stated here that, no doubt, the Flat Buyer Agreement Annexure C-10, in respect of the said unit, was executed amongst the parties, on 23.4.2008, yet, neither the physical possession thereof, by the promised date i.e. 6.10.2009, was delivered to the complainant, as per the terms and conditions of the same (Agreement), nor the entire amount deposited by them, was refunded to them nor the interest was paid by the opposite parties, before filing the complaint. There was, thus, a continuing cause of action, in favour of the complainants, to file the complaint....."
9. Further in "Lata Construction & Ors. v. Dr. Rameshchandra Ramniklal Shah & Anr., III (1999) CPJ 46 (SC) in which similar facts were involved, it was held that there was a 11 CONSUMER COMPLAINT NO. 4 OF 2014 continuing cause of action, and the complaint was not barred by time. Further in "Meerut Development Authority V. Mukesh Kumar Gupta", IV (2012) CPJ 12 (SC). In that case, the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time.
10. It was further contended that according to Clause 27 of the agreement, in case of dispute, the parties were to be relegated to the Arbitration according to Arbitration and Conciliation Act, 1996. However, according to Section 8 of the Arbitration and Conciliation Act, 1996 at the time of filing the written reply, the Ops were required to move an application under Section 8 of the Act to refer the matter to the Arbitrator alongwith all the documents but no such application was moved by the Ops, therefore, they did not exercise their option to refer the matter to the Arbitrator, rather, admitted to contest this complaint before this Commission. Therefore, now he cannot take the plea that the matter be referred to the Arbitrator. In case the Ops had promised to deliver the possession by 31.10.2012 and they failed to deliver the possession whether the complainant is entitled to compensation and other charges as claimed by him in the complaint. For that a reference can be made to the of Hon'ble Apex Court titled as "Laxmi Engineering Works v. P.S.G. Industrial Institute", II 12 CONSUMER COMPLAINT NO. 4 OF 2014 (1995) CPJ 1 (SC) wherein it was observed that the parties should not be relegated to the Civil Court, the parties have lead their evidence. There is judgment of Delhi State Consumer Disputes Redressal Commission, New Delhi I (2015) CPJ 75 (Del.) "B. Ganeshan versus S.M.V. Agencies Pvt. Ltd.". In that case, there was delay in delivering the possession. The contention raised by the Op that it was due to massive project depending upon several factors was not admitted and it was observed that non-delivery of possession till date is clear cut case of unfair trade practice. Complainant is entitled to interest etc.
11. Here also, although it was agreed by the Ops to deliver the possession by 31/12/2010 but at the time of filling the written reply in the year 2014 or at the time of arguments in the year 2015, the Ops have not placed on the record any document showing the stage of the project, perhaps they have abandon the project, therefore, they have not completed it despite the fact that ROB was also completed in the year 2012 to which they were taking the excuse of delay, which clearly showed unfair trade practice on the part of the Ops. In those circumstances, the complainant is entitled to the refund of the amount deposited by them with the Ops alongwith interest etc..
12. Another plea has been taken that it was a joint complaint, therefore, permission of the Commission under Section 12-C was not taken. Such provision is necessary in case one or more consumers having the same interest are to institute the complaint. Firstly Section 12 does not so state with regard to the permission of the State Commission, moreover, the complainants are one consumers and not 13 CONSUMER COMPLAINT NO. 4 OF 2014 different consumers. Complainant 1 & 2 filed a complaint because they had jointly booked the office premises with the Ops. Therefore, this plea taken by the Op is again against the provisions of the Act.
13. In view of the above, we are of the opinion that it is clear cut case of the Ops for unfair trade practice and deficiency in services, therefore, we accept the complaint and direct the Ops as under:-
(i) refund a sum of Rs. 18,73,493/- alongwith @ 12% from the date of deposit till the date of payment;
(ii) pay monthly return of Rs. 31,400/- alongwith interest @ 12% w.e.f. 1.10.2012 till the date of payment;
(iii) pay penalty @ Rs. 5/- per sq. ft. per month w.e.f. 1.1.2011 till the date of payment;
(iv) since the cost of the office space increased manifold, therefore, the complainant will also be entitled to compensation on account of mental and physical harassment; enhancement of price on that account, the Ops are directed to pay Rs. 2 lacs as compensation; and
(v) pay litigation expenses of Rs. 21,000/-.
14. The Ops are directed to comply with the above directions within 45 days, otherwise proceedings under Section 27 of the CP Act shall be initiated against them.
15. The arguments in this consumer complaint were heard on 26.3.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
14CONSUMER COMPLAINT NO. 4 OF 2014
16. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member April 1, 2015. (Harcharan Singh Guram) as Member