State Consumer Disputes Redressal Commission
Meera Vashishta vs Unitech Ltd. on 17 June, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.1 of 2016
Date of institution : 04.01.2016
Date of decision : 17.06.2016
1. Meera Vashishta, aged 49 years, wife of Anil Vashishta,
2. Anil Vashishta, aged 48 years, son of Madan Lal Vashishta,
Both residents of Street VPO Dehlan, District Una, Himachal
Pradesh, India, Pin Code-174 306.
.......Complainants
Versus
1. Unitech Limited through its Chairman/Managing Director, SCO
No.189-191, Sector 17-C, Chandigarh.
2. The Chairman/Managing Director, Unitech Limited having their
registered office: 6, Community Centre, Saket, New Delhi-110
007.
.......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 Varun Bhardwaj, Advocate. For the opposite parties : Ms. Vertika H. Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainants, Meera Vashishta and Anil Vashishta, 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.1 of 2016 2
i) to refund the amount of Rs.42,77,428/- paid by them from time to time;
ii) to pay interest at the rate of 18% per annum on the said amount of Rs.42,77,428/- from the respective dates of receipt till the date of realization;
iii) to pay compensation to the tune of Rs.10,00,000/- for mental torture and harassment;
iv) to pay Rs.50,000/- towards the litigation charges.
2. The complainants alleged, in their complaint, that they applied for the allotment of an independent floor in the upcoming project of the opposite parties; namely, "UNIWORLD CITY" located in Sector 97, SAS Nagar, District Mohali, for their personal use and for the use of their family members and the cost of the flat was Rs.49,31,858/-. There were terms and conditions with the application form and brochure and as per condition No.10, the possession of the floor was to be offered to the intending allottees within 36 months from the date of signing of the Agreement. Along with the application they deposited a sum of Rs.4,40,000/-, vide Cheque No.070781 on 1.10.2008. The balance amount was to be deposited as per the Construction Linked Instalment Plan. The opposite parties entered into Buyer's Agreement with them on 31.10.2008 and as per Article 1 of that Agreement, they agreed to purchase Plot No.75 with an approximate area of 300 square meters in the Mega Township known as UNIWORLD CITY in Sector 97, Mohali, Punjab. It was agreed that the opposite parties would construct and provide other Consumer Complaint No.1 of 2016 3 related infrastructure in accordance with the details as provided in the Development Agreement. It was also mentioned in clause 2.a under the head of Article 2 of sale consideration that the purchasers have to pay an amount of Rs.48,59,300/-. After the Agreement, they deposited different amounts, from time to time, either by cheques or through NEFT and the details thereof are given in the following table:
Sr. No. Date Payment Mode Amount in (Rs.)
1. 08.10.2008 Cheque No.070781 4,40,000/-
2. 05.01.2009 Cheque No.70784 4,92,325/-
3. 04.04.2009 Cheque No.476427 6,17,325/-
4. 08.07.2009 Cheque No.70785 1,62,325/-
5. 08.07.2009 Cheque No.835491 4,55,000/-
6. 02.09.2009 Cheque No.0835492 5,22,325/-
7. 14.05.2010 Cheque No.476429 2,50,000/-
8. 29.05.2010 Cheque No.476430 2,20,000/-
9. 05.06.2010 Cheque No.476431 2,20,000/-
10. 19.06.2010 Cheque No.476432 2,20,000/-
11. 05.04.2011 Cheque No.67682 2,25,565/-
12. 20.10.2011 Cheque No.67683 2,25,765/-
13. 09.06.2012 Cheque No.67684 2,26,798/-
Sub Total: 42,77,428/-
As per clause 4(a) of the Agreement, the opposite parties agreed to hand over the possession of the fully constructed floor to them within a period of 36 months from the date of signing thereof and in the Consumer Complaint No.1 of 2016 4 event of non-delivery of possession to pay compensation at the rate of Rs.5/- per square foot per month of the saleable area. After making the payment of the above said amount, they enquired about the status of the construction and possession of the floor from the opposite parties but were completely shocked when they found that there was no development of the floor. They are having no hope in near future and they have been cheated at the hands of the opposite parties who are grossly deficient in service, which caused harassment and mental torture to them. They and their family members experienced many sleepless nights, as they invested their hard earned money with the opposite parties to have a peaceful future for them and their children. The opposite parties have failed to deliver the possession within the agreed period and are enjoying their money with effect from 8.10.2008.
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.48,59,300/- and that Allotment Letter containing the terms and conditions was issued to them on 8.10.2008 and later on Agreement dated 31.10.2008 was executed. 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 made in the complaint, they averred that the complainants themselves had approached them for purchasing the Consumer Complaint No.1 of 2016 5 Floor/Flat. They were required to make the payments strictly as per the Payment Plan opted by them. The period of 36 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- providing of that connection the rest of the development work and the amenities have been delayed. They are dependent on Power Consumer Complaint No.1 of 2016 6 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 36 months but the payment of those charges are subject to the 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 8.10.2008 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 cause of action has accrued to them to file the complaint and the same is not maintainable under the provisions of the Act. No Consumer Complaint No.1 of 2016 7 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 31.10.2008 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 Meera Vashishta, complainant No.1, Ex.C-A and documents Ex.C-1 to Ex.C-20. 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-1 and Ex.OP-2.
5. We have carefully gone through the averments of both the sides, evidence produced by them in support of their respective Consumer Complaint No.1 of 2016 8 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 8.10.2008, Ex.C-4, was issued in their favour and thereafter Agreement dated 31.10.2008, Ex.C-5, was executed. The total price of the flat was Rs.48,59,300/- and as per the Payment Plan agreed to by the complainants, they made the payments by the stipulated dates and have already deposited Rs.42,77,428/- 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 36 months of the date of the execution of the Agreement dated 31.10.2008 Ex.C-5 and that period expired on 31.10.2011. Even after that the complainants waited for more than four years 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 fact, there is no possibility of the completion of the Flat in near future and, as such, Consumer Complaint No.1 of 2016 9 opposite parties are liable to refund the amount so paid by the complainants. The act of the opposite parties in not delivering the possession of the Flat amounts to deficiency in service; as a result of which the complainants suffered harassment and mental agony and on that account they are entitled to the compensation of Rs.10,00,000/-. In addition to that they are also entitled to the penalty, as stipulated by the Agreement.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that the period of 36 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 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 Consumer Complaint No.1 of 2016 10 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. In these circumstances they are not entitled to the refund of the amount so paid by them nor are entitled to any such compensation. They are only entitled to the penalty as per clause 4.c of the Agreement and the opposite parties are ready to pay that penalty. 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-5 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-5, after those payments had been made the possession of the flat was to be offered to them by the opposite parties within 36 months of the signing of the Agreement. The same was signed on 31.10.2008 and, as such, the possession of the Flat was to be delivered to them on or before 31.10.2011. 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 36 months was on account of force majeure circumstances or circumstances beyond their control?
Consumer Complaint No.1 of 2016 11
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 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 Consumer Complaint No.1 of 2016 12 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 36 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. If the aforesaid circumstances are to be taken as an excuse to wriggle out of the condition so imposed in the Agreement, then in every case such a plea would be taken as an excuse for performing their part of the contract by the Developers. They had been collecting huge amounts from the customers for the development of the Project and we wonder where that amount had been going. They are not to play the game at the cost of others. When they insist upon the Consumer Complaint No.1 of 2016 13 performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement. Thus, the delay in delivering the possession of the flat within the agreed period of 36 months amounts to deficiency in service on the part of the opposite parties, for which the complainants are to be suitably compensated.
11. According to the learned counsel for the opposite parties, the complainants are only entitled to the penalty, as stipulated by clause
4.c of the Agreement, as the construction of the Project is in full swing and there is possibility of the completion thereof and the delivery of the possession of the Flat to the complainants in near future. No doubt, it has been averred by the opposite parties in the written reply that the construction at the site is in full swing and the possession shall be shortly handed over to the complainants. That fact was required to be proved by the opposite parties and for proving the same it has proved on record the affidavit of its authorized representative Lalit Gupta, Ex.OP/A. A perusal of that affidavit makes it very much clear that it is only the written reply filed by the opposite parties, which has been given the form of an affidavit. The deponent has not specifically deposed about the facts. Such an affidavit is no affidavit in the eyes of law. No other evidence has been produced by the opposite parties for proving the above said facts. Those facts could have been proved only by producing in evidence the photographs and other documents showing that the efforts were being made to complete the Project and the construction Consumer Complaint No.1 of 2016 14 had been going on in full swing. Complainant No.1 in her affidavit Ex.C-A specifically deposed that there was no development at the site. This deposition of the complainant has remained unrebutted. In view of that evidence, it is to be held that no such construction work is going on at the spot and there is no possibility of the completion of the Flat in near future and the delivery of possession thereof to the complainants. This act of opposite parties in not delivering the possession to the complainants within the agreed period amounts to deficiency in service. The complainants cannot be compelled to wait further, when more than four years have already elapsed since the expiry of the period of delivery of possession. They are entitled to the refund of the amount so paid by them and they are also entitled to interest on that amount, as they were deprived of the use of that amount and the opposite parties were gained by retaining that amount.
12. The hopes of the complainants, to have their own house, have been shattered on account of the non-completion of the Flat and non-delivery of possession thereof to them. They, thus, suffered harassment and mental agony on account of the deficiency in service on the part of the opposite parties and they are to be suitably compensated for the same. They are not entitled to the penalty as stipulated by the Agreement for delay in delivery of possession; as they do not want to keep the bargain open and want to put an end to it by getting the refund of the amount.
Consumer Complaint No.1 of 2016 15
13. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties:-
i) to refund the amount of Rs.42,77,428/-, along with interest at the rate of 12% per annum from the dates of respective payments till the date of actual payment;
ii) to pay Rs.2,00,000/-, as compensation, for the
harassment and mental agony suffered by the
complainants; and
iii) to pay Rs.11,000/-, as costs of litigation.
The opposite parties are directed to comply with the order within 30 days of the receipt of the certified copy of the order.
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.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 17, 2016 Bansal