State Consumer Disputes Redressal Commission
Anil Manaktala vs Unitech Limited on 6 June, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.311 of 2015
Date of institution : 04.12.2015
Date of decision : 06.06.2016
1. Anil Kumar Manaktala son of Sh. Chuni Lal,
2. Mrs. Shashi wife of Anil Kumar Manaktala,
Both residents of House No.3036, Phase-7, Mohali.
.......Complainants
Versus
1. Unitech Limited, Regd. Office 6, Community Centre, Saket,
New Delhi 110 017 through its Managing Director.
2. Unitech Limited (Uniworld City, Mohali), Marketing Office at
SCO-189-90-91, Sector 17, Chandigarh through its authorized
officer.
.......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
Mrs. Surinder Pal Kaur, Member Present:-
For the complainants : Shri R.S. Jhand, Advocate. For the opposite parties : Ms. Vertika H. Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainants, Anil Kumar Manaktala and Shashi, have 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 opposite parties:Consumer Complaint No.311 of 2015 2
i) to hand over the possession of the floor in question, along with all basic and assured amenities, immediately without any delay;
ii) to pay compensation of Rs.10,00,000/-, for the monetary losses, mental and physical harassment suffered by them on account of unfair trade practice and deficiency in service;
iii) to pay interest at the rate of 12% on the amount deposited by them from the date of deposit till the date of actual handing over of the possession;
OR
iv) in the alternative to refund the deposited amount of Rs.47,94,562/-, along with interest at the rate of 12%;
v) to pay Rs.10,00,000/- for monetary losses and mental and physical harassment suffered by them as a result of unfair trade practice and deficiency in service;
AND
vi) to pay Rs.50,000/-, as litigation charges.
2. The complainants alleged, in their complaint, that the opposite parties launched a Project in the name of Uniworld City Mohali for providing built-up flats, floors and plots, after developing the area, along with basic amenities and other facilities as per the brochure issued by them and that Project was widely advertised. Believing those claims they purchased one residential floor in their names, vide Customer Code: GFM0031 (3 Bedroom), Sector 97, Block D, Consumer Complaint No.311 of 2015 3 Ground Floor on Plot No.46, measuring 300 square meters (1796 square feet) (approximately) for a consideration of Rs.56,09,300/-; which included the basic price, EDC and PLC. The allotment letter containing the terms and conditions was issued to them on 11.9.2008 and thereafter the Agreement was executed between them and the opposite parties on 30.9.2008. The amenities and facilities were to be provided by the opposite parties as per their promise and they were to provide direct road from Chandigarh to Mohali, along with the latest facilities provided by the Government in Mega Housing Projects. At the time of booking they were assured by the officials of the opposite parties that the roads, streetlights, electricity, sewerage connection and other facilities were in process and would be provided within few months before the completion of the building. They were also promised a Club House, for which the charges were levied from them. They paid all the instalments, as demanded by the opposite parties. Thereafter opposite parties entered into a fresh agreement with them on 3.3.2010, in which consideration was fixed as Rs.51,59,300/- because of some changes in specifications. The amounts paid by them as per first agreement i.e. Rs.34,49,300/- and Rs.60,000/- as CMRC charges were acknowledged. Till the filing of the complaint they paid each and every instalment, as demanded by the opposite parties and in all paid Rs.47,94,562/-; which comes to about 90% of the total consideration. As per the new Agreement, the possession of the floor was to be provided within 20 months of the date of execution Consumer Complaint No.311 of 2015 4 thereof i.e. 3.3.2010 but the same was not offered even upto the date of filing of the complaint, though the period of 20 months after the promised date had already passed. The construction/development of the Project has been totally stopped by the opposite parties from the last more than 20 months of the date of filing of the complaint. Whenever they tried to know the status of the construction/development of the building, the opposite parties and their officials made excuses on one pretext or the other and failed to give any satisfactory reply. These acts and conduct on their part amount to deficiency in service and unfair trade practice and as a result thereof they suffered mental and physical harassment and grave monetary loss. They have been cheated of their hard earned money by showing the dreams of their own house.
3. The complaint was contested by the opposite parties, who filed joint written reply, in which they did not dispute that the complainants purchased the residential floor in question from them for a consideration of Rs.56,09,300/- and that Allotment Letter dated 11.9.2008 containing the terms and conditions was issued to them and later on Agreement dated 30.9.2008 was executed and that thereafter the opposite parties entered into a fresh Agreement with them on 3.3.2010 in which consideration was fixed as Rs.51,59,300.00. They also did not dispute that the amounts, as mentioned in the complaint, were deposited with them by the complainants and that the possession of the floor has not been handed over to them so far. While denying the other allegations Consumer Complaint No.311 of 2015 5 made in the complaint, they averred that the complainants themselves had approached them for purchasing the Floor/Flat. They were required to make the payments strictly as per the Payment Plan opted by them. The period of 20 months, so mentioned in the Agreement, was the tentative time period for the delivery of possession and was subject to force majeure circumstances. No date was ever committed by them for the delivery of possession of the Flat. The Company could not hand over the possession due to reasons of Global meltdown of the economy worldwide wherein the foreign investors, as anticipated by them, refrained from any kind of investment in India and there was a total cash crunch throughout. They are facing extreme financial hardship due to recession in the reality market and all those circumstances were beyond their control. They are also facing problems with regard to providing electricity in the said area as P.S.P.C.L. (in short, "Power Corporation") has been raising objections on one pretext or the other. They were to provide electricity Sub Station of 66 KV. On account of the possession of some of the flats and plots already given by them, they made a request to the Power Corporation to provide at least 1 MW connection to the Project in the year 2010 but it kept on raising objections regarding the compliance of various formalities and those were duly complied with by the Company. It further imposed the condition of Bank guarantee for providing of 1 MW connection, vide its letters dated 19.12.2014 and 2.3.2015. On account of the non- Consumer Complaint No.311 of 2015 6 providing of that connection the rest of the development work and the amenities have been delayed. They are dependent on Power Corporation for the supply of electricity and other amenities in the Project. Despite all the odd conditions they are making every endeavour to complete the development work at the site and are making sincere efforts to hand over the possession of the flat to the complainants. The construction work is in full swing and the possession shall be shortly handed over to them. As per clause 4(c) of the Agreement, they have made themselves liable to pay charges at the rate of Rs.5/- per square foot per month of the saleable area of the floor/flat for the period of delay in offering the possession beyond the period of 20 months but the payment of those charges are subject to any reason beyond their control and those are to be adjusted at the time of issuance of final notice of possession. The complainants are merely investors, who had invested in the flat for investment purposes. After the allotment of the flat on 11.9.2008 real estate market witnessed huge slump and the investors in the real estate globally faced severe market recession and consequently, the complainants could not make profits out of the entire transaction by re-selling the flat in the open market and, as such, they have frivolously resorted to this legal remedy before this Commission in order to wriggle out of their contractual liabilities created by the Buyer Agreement and to mint money out of the entire transactions, through this Commission. They are not 'consumers' under the definition, as contained in Section 2 (1) (d) of the Act. No Consumer Complaint No.311 of 2015 7 cause of action has accrued to them to file the complaint and the same is not maintainable under the provisions of the Act. No deficiency in service can be attributed to them, as throughout they discharged all their services to the complainants in a bona fide manner. They also averred that this Commission has no territorial jurisdiction to entertain this complaint as the Agreement dated 3.3.2010 was executed at New Delhi and the demand for the payment had been raised from their Gurgaon Office, which has not been impleaded as a party. Even the payments were made by the complainants through cheques; which were payable at New Delhi and were deposited in their Bank account at that place itself. The facts, as narrated in the complaint, do not constitute "consumer dispute' as defined in Section 2(1) (e) of the Act. The complainants are seeking relief, which is not covered under the definition of "consumer dispute". They raised issues relating to contractual matter arising out of the terms and conditions of the Agreement and the interpretation thereof and the same can be adjudicated upon only in civil proceedings. They prayed for the dismissal of the complaint with heavy costs; being false, frivolous and vexatious.
4. For proving the allegations made in the complaint the complainants proved on record the affidavit of Anil Manaktala, complainant No.1, Ex.C-A and documents Ex.C-1 to Ex.C-6. On the other hand, the opposite parties proved on record the affidavit of their Authorized Representative Lalit Gupta, Ex.OP/A and documents Ex.OP-1and Ex.OP-2.
Consumer Complaint No.311 of 2015 8
5. We have carefully gone through the averments of both the sides, evidence produced by them in support of their respective averments and have heard learned counsel on their behalf and have also gone through the written arguments submitted by the learned counsel for the complainants.
6. It was submitted by the learned counsel for the complainants that all the allegations made in the complaint stand proved from the affidavit of complainant No.1 and the documents proved on the record and some of those allegations also stand proved from the admissions made by the opposite parties. It is proved on the record that the complainants agreed to purchase the flat from the opposite parties regarding which allotment letter dated 11.9.2008, Ex.C-2, was issued in their favour and thereafter Agreement dated 30.9.2008, Ex.C-3, was executed. The total price of the flat was Rs.56,09,300/- and that thereafter the opposite parties entered into a fresh Agreement with the complainants on 3.3.2010, Ex.C-4, in which consideration was fixed as Rs.51,59,300/- and as per the Payment Plan agreed to by the complainants, they made the payments by the stipulated dates and have already deposited Rs.47,94,562/- and that fact has not been disputed by the opposite parties. After having paid all the instalments, as per the Payment Plan, they became entitled to the possession of the flat; which was to be delivered to them within 20 months of the date of the execution of the Agreement dated 3.3.2010 Ex.C-4 and that period expired on 3.11.2011. Even after that the complainants waited for four years Consumer Complaint No.311 of 2015 9 but the possession of the flat was not delivered and they were compelled to file the complaint. They noticed that the construction work had been stopped at the site by the opposite parties. In view of the terms and conditions of the Agreement they are entitled to the possession of the complete flat with all the facilities immediately and a direction is required to be issued to that effect to the opposite parties. For the delay in delivering the possession they are entitled to the penalty as stipulated by Section 4(c) of the Agreement and by virtue of the law laid down by the Hon'ble National Commission in FA No.729 of 2013 decided on 30.11.2015 (Inderjit Singh Bakshi v. S.M.V. Agencies Pvt. Limited) they are also entitled to interest at the rate of 12% per annum on the said amount of Rs.47,94,562/- from 3.11.2011 till the delivery of the possession of the complete flat. By not delivering the possession of the Flat by the agreed date the opposite parties committed deficiency in service, as a result of which the complainants suffered harassment and mental agony; as for all this time they were hoping to have their own flat. On that account they are entitled to compensation as claimed in the complaint.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that the period of 20 months as mentioned in the Agreement was the tentative period and that period was subject to force majeure circumstances and other circumstances beyond the control of the opposite parties. From the evidence produced by them, it stands proved that the completion of the Project was delayed on account of the non-providing of additional connection of 1 Consumer Complaint No.311 of 2015 10 MW by the Power Corporation though strenuous efforts were made by them to get such a connection for completing the Project. When such is the position, it cannot be said that the opposite parties committed any deficiency in service by not delivering the possession of the flat to the complainants. They were liable to pay the penalty as stipulated by the Agreement in case there were no such circumstances beyond their control. The complainants are not entitled to any interest on the amount deposited by them as there was no such stipulation in the Agreement. The opposite parties cannot be penalized twice by imposing the penalty stipulated in the Agreement and by issuing direction to pay the interest on the deposited amounts. She further submitted that the opposite parties are making every effort to complete the Project and immediately after the completion thereof the possession of the flat shall be delivered to the complainants. She prayed for the dismissal of the complaint.
8. The evidence produced by the complainants that they paid all the instalments as per the Payment Schedule contained in the Agreement Ex.C-4 has not been rebutted by the opposite parties and that evidence was not challenged at all at the time of arguments. As per clause 4(c) of the Agreement Ex.C-4, after those payments had been made the possession of the flat was to be offered to them by the opposite parties within 20 months of the signing of the Agreement. The same was signed on 3.3.2010 and, as such, the possession of the Flat was to be delivered to them on or before Consumer Complaint No.311 of 2015 11 3.11.2011. It is a fact that it is mentioned in the said clause itself that the delivery of possession of the flat within that period was subject to force majeure circumstances and the opposite parties have tried to take the benefit of that proviso. The question arises, whether they have been able to prove on the record that the non-delivery of possession of the flat to the complainants within the period of 20 months was on account of force majeure circumstances or circumstances beyond their control?
9. The only such circumstance, which has been argued before us and which has been so mentioned in the written reply of the opposite parties, is that they had applied for additional connection of 1 MW to the Power Corporation in the year 2010 but it failed to provide the same; which resulted in the delay in the completion of the Project. It stands proved from the documentary evidence produced by the opposite parties and which consists of the letter dated 9.9.2011 Ex.OP-2 that they did apply to the Power Corporation for the release of 1 MW connection on 28.9.2010 and the same was not provided and they had been repeatedly writing to the Power Corporation for the release thereof. It may be so but the question to be determined is, whether the non-completion of the Project was on account of the non-supply of that additional connection of 1 MW? Lalit Gupta, Authorized Representative of the opposite parties made a detailed deposition in his affidavit Ex.OP/A regarding the applying of that additional connection to the Power Corporation and the non- providing thereof by the Power Corporation on one pretext or the Consumer Complaint No.311 of 2015 12 other and that period of 5 years has already consumed for obtaining that additional connection. He also deposed in that affidavit that on account of the non-availability of that electricity the rest of the development work and amenities have been delayed, as they were dependent upon the Power Corporation for the supply of that electricity and further amenities in the project. He also deposed in that affidavit that every endeavour is being made to complete the development work at the site and sincere efforts are being made for handing over the possession of the flat to the complainants.
10. It is not the case of the opposite parties that they could not start with the Project on account of the non-providing of additional electric connection by the Power Corporation and according to them, the rest of the development work has been delayed. This Lalit Gupta is not a technical person to make a statement that on account of the non-supply of additional electric connection the development of the Project was delayed. Such a fact could have been proved only by a technical person, who was also required to disclose as to how such electricity was required for the construction work and that there was no other alternative with the opposite parties to complete the construction. Such a circumstance cannot be said to be force majeure circumstance or a circumstance beyond the control of the opposite parties. Once they agreed to hand over possession of the flat within 20 months of the execution of the Agreement and having collected such a huge amount from the complainants they were required to hand over the possession within that period. On account Consumer Complaint No.311 of 2015 13 of the non-delivery of the possession of flat, clause 4(c) of the Agreement is attracted and the complainants become entitled to the penalty at the rate of Rs.5/- per square foot per month of the saleable area of the floor from the date on which the possession was to be delivered to them i.e. 3.11.2011.
11. Similar were the facts in Inderjit Singh Bakshi's case (supra). In that case also the possession of the flat was not delivered by the agreed date and the Hon'ble National Commission held that for the delay in delivering the possession the complainant was entitled to interest at the rate of 12% per annum on the amounts so deposited by him. The ratio of that judgment clearly applies to the facts of the present case and, as such, the complainants are also entitled to interest at the said rate on the amounts so deposited by them with the opposite parties, from 3.11.2011.
12. It is now well settled that non-delivery of possession of the Flat/Plot by the agreed date amounts to deficiency in service on the part of the developer. According to the complainants, they suffered harassment and mental agony on account of the non-delivery of possession. Therefore, they are entitled to compensation for that harassment and mental agony, so suffered by them.
13. In the result, the complaint is allowed and following directions are issued to the opposite parties:
i) to complete the floor/flat in all the respects with all the agreed facilities/amenities and to deliver the possession Consumer Complaint No.311 of 2015 14 thereof to the complainants within a period of three months of the receipt of the certified copy of this order;
ii) to pay penalty at the rate of Rs.5/- per square foot per month of the saleable area i.e. 1796 square feet from 3.11.2011 till the delivery of possession of the floor/flat;
iii) to pay interest at the rate of 12% per annum on the total amount of Rs.47,94,562/- from 3.11.2011 till the delivery of possession of the floor/flat;
iv) to pay Rs.1,50,000/-, as compensation for the harassment and mental agony suffered by them;
v) to pay Rs.11,000/-, as costs of litigation.
14. The arguments in this case were heard on 6.6.2016 and the order was reserved. Now, the order be communicated to the parties.
15. 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 (MRS. SURINDER PAL KAUR) MEMBER June 06, 2016 Bansal Consumer Complaint No.311 of 2015 15