State Consumer Disputes Redressal Commission
Manohar Lal Sharma vs Unitech Ltd. on 16 February, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 146 of 2015
Date of institution: 22.06.2015
Date of Decision: 16.02.2016
1. Manohar Lal Sharma son of Sh. Kharaiti Ram, permanent resident of
38 Whinmoor Gardens, Wellington Hill, Leeds 14, United Kingdom.
2. Karun Sharma son of Manohar Lal Sharma, resident of 38 Whinmoor
Gardens, Wellington Hill, Leeds 14, United Kingdom.
.....Complainants
Versus
1. UNITECH Limited, having its Marketing Office at SCO 189-90-91,
Sector 17-C, Chandigarh through its Managing Director.
2. Managing Director, UNITECH Limited, having its Marketing Office
at SCO 189-90-91, Sector 17-C, Chandigarh.
3. ALICE DEVELOPERS PVT. LTD, having its registered office at
basement 6, Community Centre, Saket, New Delhi through its
authorized signatory Ajay Jain.
4. Ajay Jain, Authorized Signatory, ALICE DEVELOPERS PVT LTD.,
having its registered office at basement 6, Community Centre, Saket,
New Delhi.
.....Opposite Parties
Consumer Complaint under section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the complainant : Mrs. D.J. Sharma, Advocate
For OPs : Mrs. Vertika H. Singh, Advocate
Consumer Complaint No. 146 of 2015 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
Complainants have filed this consumer complaint under Section 17 of the Consumer Protection Act (in short 'the Act') against opposite parties (in short 'OPs') on the averments that representative of OPs contacted the complainants stating that they have started their Mega Township known as Uniworld in the land measuring 334 acres situated in Sector 97, 106 and 107, Mohali. Vide agreement dated 01.12.2008, OPs No. 1 & 2 had transferred the development rights to OP No. 3 in respect of 33.2438 acres land of the project. In response to the application moved by the complainants, OPs No. 1 & 2 issued allotment letter vide Ref:
UL:RED:NRSF:00011/15554/09 dated 08.07.2009 whereby plot No. 0021 in Block A at Singleton Floors, Sector 107, Uniworld City, Mohali was allotted to the complainants for total consideration of Rs. 21,04,010/- under down payment plan opted by the complainants. As per the payment schedule a sum of Rs. 1,84,238/- was to be paid at the time of booking, a sum of Rs. 1827652/- + CMRC was to be paid within 45 days and remaining Rs. 92120/- + SDC+Misc. Charges were to be paid on final notice of possession. Complainants paid a sum of Rs. 2,00,000/- vide cheque No. 489802 dated 05.05.2009 drawn from Bank of India, Chandigarh. OPs sent buyers agreement and the same was returned by the complainants on the same day after signing it. Vide letter dated 03.10.2009, original copy of the buyers agreement was received by the complainants. The said agreement was triparte agreement signed by OP No. 3 through OP No. 4 as developers. According to article 4.a (i) of the agreement, possession of the floor was proposed to be offered to the purchaser(s) within 36 months of signing of the agreement, subject to Force Majeure Consumer Complaint No. 146 of 2015 3 circumstances. According to clause 4.c developer shell be liable to pay the charges of Rs. 5/- per. Sq. Feet per month of the saleable area for the period of delay in offering the passion of the floor beyond the period indicated in Clause 4.a. It was further mentioned in the clause 4.e that if for any reason, developer was unable to offer the floor to the purchaser, the developer may offer the purchaser for refund of the amount alongwith interest @ 10% per annum. Complainants paid a sum of Rs. 18,87,974/- through RTGS on 14.10.2009. He also paid a sum of Rs. 20,000/- on account of interest on delay payment vide cheque No. 489805 dated 28.10.2009. In this way, he paid a sum of Rs. 21,07,974/- i.e. entire payment according to the agreement. However, OPs failed to deliver the possession within agreed period of 36 months. The complainant have parted their money amounting to Rs. 21,07,974/- on the assurance that the possession will be delivered by October, 2012. Non delivery of the possession as agreed, amounts to deficiency in services on the part of OPs. Hence the complaint with directions to OPs to hand over the possession of the flat as per buyers agreement or in the alternative to refund a sum of Rs. 21,07,974/-alongwith interest @ 10%, to pay compensation of Rs. 5 lac on account of mental and financial harassment and to pay Rs. 1 lac as litigation expenses.
2. Complaint was contested by OPs who filed written statement/reply that Sh. Lalit Gupta has been authorized to file written reply on behalf of OPs who is authorized by company and is well conversant with the facts of the case. Preliminary objections were taken that the Commission does not have any territorial jurisdiction to adjudicate the complaint as buyers agreement dated 03.10.2009 was executed between the parties at New Delhi and demand of payment was raised at Gurgaon office Consumer Complaint No. 146 of 2015 4 and the payments were made through cheque payable at Delhi.
Complainants have not come to the Commission with clean hands; they have deliberately and consciously concealed the facts; the complainants are NRIs and simply investors who were looking only for making easy money in the real estate, therefore, they are not the consumer under section 2 (i) (d) of the Act; the matter in dispute is not a consumer dispute. The complaint is false, frivolous and vexatious to the knowledge of the complainant, therefore, it is liable to be dismissed with costs and that the complaint is not maintainable as no cause of action had arisen in favour of the complainant. On merits, it is admitted that as NRI, the complainants had booked one flat with OPs. Allotment letter and buyers agreement between the parties has been admitted. However, the possession could not be offered within 36 months period due to force majeure circumstances. As per clause 8 (b) of the buyers agreement, OPs were entitled to reasonable extension of time in handing over the possession in case, OPs face any kind of force majeure as mentioned in the buyers agreement. Due to Global meltdown of the economy worldwide there was total cash crunch throughout beyond the control of OPs and that the company was facing problem with regard to electricity in the said area as PSPCL has been raising objections on one pretext or the other to provide electricity sub station of 66 KV in the area. However, to provide possession to some flats and plots, PSPCL was requested to atleast to give one MW connection to project of OPs in 2010. However, PSPCL raised various formalities to be completed to supply one MW connection which was duly done by the company in 2011. However, PSPCL kept on imposing various objections for releasing connections on one pretext or the other. Various communications relating to the electricity Consumer Complaint No. 146 of 2015 5 connection with GAMADA as well as PSPCL will reveal that OPs are making their best efforts to get the electricity supply but due to various objections raised by PSPCL, they were unable to get the electricity supply and consequently failed to deliver the possession of the flat to the complainant and others. OPs are not deficient in their services as alleged in the complaint. The complaint is without merit and it be dismissed.
3. The parties lead their evidence in support of their respective contentions.
4. In support of his allegations, the complainant tendered into evidence affidavit of Sh. Manohar Lal Sharma as Ex. CW1 and allotment letter dated 08.07.2009 as Ex. C-1, payment schedule dated 08.07.2009 as Ex. C-2, draft agreement as Ex. C-3, letter dated 09.07.2009 as Ex. C-4, letter dated 13.10.2009 as Ex. C-5, agreement dated 03.10.2009 as Ex. C-6, receipt dated 14.10.2009 as Ex. C-7, order dated 29.04.2015 as Ex. C-8 and close the evidence. On the other hand, OPs tendered into evidence affidavit of Sh. Lalit Gupta, Authorized Representative, M/s Unitech Ltd, SCO 189- 191, Sector 17-C, Chandigarh as Ex. OP-1/A alongwith documents resolution dated 19.06.2015 as Ex. OP-1, demand letter dated 08.07.2009 as Ex. OP-2, buyers agreement dated 03.10.2009 as Ex. OP-3 and copies of communication with PSPCL as Ex. OP-4 (colly) and close the evidence.
5. We have heard the counsel for the complainant and OP and have carefully gone through the averments made in the complaint, written reply filed by OPs, evidence and documents on the record .
6. Before taking the complaint on merits, some preliminary objections raised by OPs are required to be redressed. First objection taken by OPs is that this Commission did not have territorial jurisdiction to adjudicate the Consumer Complaint No. 146 of 2015 6 complaint. Agreement in question was executed at New Delhi and receipts were issued by their office at Gurgaon and they did not have their branch office in the state of Punjab. No doubt that they have their office at Delhi or Gurgaon but the property in question where the project was developed and the flat sold to the complainant is situated at Mohali, therefore, a part of cause of action arose at Mohali falling within the state of Punjab and under section 17 (2) (c), the State Commission have the jurisdiction in case a part of cause of action wholly or part arose within the territorial jurisdiction, therefore, property in dispute being situated in state of Punjab, a part of cause of action arose in the State of Punjab. Accordingly, State Commission, Punjab has the territorial jurisdiction to entertain this complaint.
7. Another objection has been taken that the complainants are NRI and that they have invested their easy money in the real estate property to get profit, therefore, they are not consumer and the matter in dispute is not a consumer dispute. Only one flat was booked by the complainants. No doubt that the complainants may be NRIs but they have their interest in the State of India, therefore, they have a right to purchase the property in India. Counsel for OPs during the course of arguments was unable to convince before this Commission, how booking of one flat is commercial in nature. In case, OPs as per agreement have not delivered the possession, then allegations are that they are deficient in their service. In that circumstance, purchaser will be consumer and seller will be service provider. In case OPs failed to deliver the possession as agreed, then this matter a consumer dispute. Therefore, complainants are covered the definition of consumer as defined under section 2 (i) (d) of the Act.
Consumer Complaint No. 146 of 2015 7
8. It is admitted between the parties that on the basis of application moved by the complainants, one flat No. A-01-0021 (2Bedroom) in singleton floors, Sector 107, Uniworld City, Mohali was allotted to the complainants vide allotment letter Ex. C-1. Then buyers agreement was executed between the parties Ex. C-6. According to the payment schedule Ex. C-2, total price of the flat was Rs. 21,04010/- whereas as alleged in the complaint, complainant had paid a sum of Rs. 2 lac vide cheque No. 489802 dated 05.05.2009., Rs. 18,87,974/- were transferred to OPs through RTGS on 14.10.2009 and payment of Rs. 20,000/- vide cheque No. 489805 dated 28.10.2009. In this way, complainants have paid a sum of Rs. 21,07,974/- i.e. 100% payment has been made by the complainants to OPs. It has been argued by the counsel for the complainant that as per clause 4 (a) (i) of buyers agreement (Ex. C-6), the possession of the floor was proposed to be offered to the purchaser within 36 months of signing of these presents and this agreement was executed between the parties as on 3.10.2009. Therefore, the possession of the floor was required to be offered by 02.10.2012. Further according to clause 4 (c), in case the developer has delayed in offering the possession of the floor beyond the period indicated in clause 4.a, then developer shall be liable to pay charges @ Rs. 5/- per. Sq. Ft. Per month of the saleable area. Accordingly, it has been argued by the counsel for the complainants that apart from relief of possession of the floor, complainants are entitled to penalty charges as indicated in Para 4.c of the agreement. The area of the floor is 1010 sq.ft. as mentioned in the payment schedule, therefore, penalty charges are to be calculated of this area whereas on the other hand, in the written arguments, it has been stated by OPs that due to worldwide Global meltdown of the economy and there Consumer Complaint No. 146 of 2015 8 was total cash crunch with OPs and on account of non supply of electricity by PSPCL by raising various objections, they cannot get the electricity supply. Counsel for OPs pleaded that these are force majeure circumstances, therefore, they are entitled to reasonable extension of time in offering the possession. Now we have to determine, whether the circumstances referred by OPs are force majeure. Force majeure as per the Law Lexicon are as under:-
"FORCE MAJEURE:- means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal wave, flood, lightening, explosion, fire an any other happening which the lessee would not reasonable prevent or control."
This definition was accepted by Orissa High Court in "Md. Serajuddin Versus State of Orissa AIR 1969 Ori 152". Then, Hon'ble Suprement Court of India has held in "Dhanrajamal Gobindram Versus Shamji Kalidas and Co. AIR" 1961 SC 1285.
Now we have to check whether the circumstances pleaded by OPs are Force Majeure. In case, we go through the definition of Force Majeure referred above, certainly the pleas taken by the OPs are not covered. However, at the end of the definition, it has been mentioned any other happening which the lessee would not reasonably prevent or control. In that clause, firstly the plea has been taken by OPs that due to worldwide global meltdown economy, they were facing cash crunch throughout. No doubt that slowdown of the world economy cannot be denied but OPs have not brought on the record their financial statement, their statement of account to show that they were facing the cash crunch, otherwise, in case, we go by this project, they had collected the money in raising the construction from Consumer Complaint No. 146 of 2015 9 its customer, therefore, question of financial crunch in the case of OPs does not arise. It may be possible that they must have invested that money with some other project and now they may be facing financial crunch to run this project. Therefore, we are of the opinion that firstly, OPs have not been able to prove on record their financial status to show that they were facing financial crunch, otherwise they were to spend what was paid by their customers, therefore, such a plea is not available with OPs. Therefore, this plea cannot be taken as a case of force majeure.
9. Another point is taken by them that some dispute is with them and PSPCL. They have brought on record one document Ex. OP-4 wherein they had requested to Managing Director, Punjab Power Corporation, Patiala to release 1 M.W connection. They had applied for 66 KV connection and for that they were to deposit the amount for LD system or 160% of the bank guarantee which they failed to deposit. In case, they had defaulted, then how PSPCL can release the electricity supply, in case, they did not comply with the required obligations. Therefore, this plea also cannot be taken as a case of force majeure. No other plea has been taken on the basis of which they could say that there was delay in offering the possession of flat beyond the period as indicated in the buyers agreement. In case, they have failed to offer the possession within stipulated period as agreed between the parties in the agreement, then it is the case of deficiency in service on the part of OPs. Accordingly, we allow the complaint and directed OPs as under:-
(i) deliver the possession of the flat in question to the complainant within 3 months from the date of receipt of certified copy of the order Consumer Complaint No. 146 of 2015 10 passed by this Commission complete in all respect including completion certificate.
(ii) to pay penalty @ Rs. 5050/- per month w.e.f. 03.10.2012 up to date of delivery of the possession as per the order passed by this Commission.
Or
(iii) in case, the possession of the flat is not delivered to the complainant within a period stipulated in points No. (i) & (ii), then OPs will refund the amount so received from the complainant alongwith interest @ 10% from the date of receipt of the amount till actual payment.
(iv) pay Rs. 2 lac as compensation on account of deficiency in services because the complainants are waiting to get the possession since October, 2012 and it is not ascertain as to whether possession complete in all respect will be offered to the complainant.
(v) Rs. 21,000/- as litigation expenses.
10. The arguments in this consumer complaint were heard on 10.02.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER February 16, 2016.
Rupinder Consumer Complaint No. 146 of 2015 11