PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
Complainant no.2 is the son of complainant no.1 and complainant no.3 is daughter-in-law of complainant no.1. It is their case that they purchased a residential floor bearing no.47, Block A, Ground Floor, in the project of opposite party no.1, known as 'Unihomes', Uniworld City, Sector 107, Mohali, Punjab. Tripartite Buyer's Agreement Annexure C-1 (in short the Agreement) was executed amongst the parties on 28.10.2009. Price of the unit was fixed at Rs.26,81,304/-. Rs.2.57 lacs were paid by the complainants, towards registration amount, for the said unit. Rest of the amount was to be paid as per construction linked payment plan, attached with the Agreement. As and when demand was raised, from time to time, the complainants paid the amount towards price of the said unit. On two occasions, demanded amount was paid with delayed interest @18% p.a. Article 4.a.(i) of the Agreement reads thus:-
"(i) That the possession of the Floor is proposed to be offered to the Purchaser(s) within 36 months of signing of these presents, subject to Force Majeure circumstances and upon registration of Sale Deed provided all amounts due and payable to the Purchaser(s) under this Agreement have been paid within the stipulated period. It is, however, understood between the Parties that various Floors shall be ready and shall be completed in phases and handed over to the Purchaser(s) accordingly."
2. Before delivery of possession, as per Article 4.b., it was incumbent for the opposite parties, to give notice to the complainants, in case of delay in handing over possession, beyond the period of 36 months, subject to force majeure circumstances, It was further provided in the said Agreement that penalty @Rs.5/- per square feet, per month of the saleable area, for the period of delay shall be paid by the opposite parties, to the complainants.
3. As per the Agreement, end date to hand over possession of the unit was 27.10.2012. Till the date of filing of this complaint, possession of the unit, was not offered to the complainants. The complainants have already paid an amount of Rs.23,68,391/-. It is their grievance that their dream to own a house/flat, has been shattered despite paying huge amount equal to about 87% of the sale consideration of the unit, to the opposite parties. There is no hope to get possession of the unit, even in near future. Legal notice dated 19.02.2016, claiming refund of the amount paid was sent to the opposite parties, however, it failed to yield any result. By stating as above, prayer has been made to refund the amount paid, with interest, compensation for mental agony and physical harassment alongwith litigation expenses.
4. Notice of this complaint was sent to the opposite parties on 16.05.2016 for 15.06.2016. On the above date, Sh.Lalit Gupta, Senior Manager (Legal) of opposite party no.1 and Counsel for opposite party no.2, appeared and sought time to file replies. Matter was adjourned to 08.07.2016. On the said date, Counsel for both the opposite parties appeared, and again sought time to file replies and evidence and on their request, matter was adjourned to 20.07.2016. On the said date, despite repeated calls, none put in appearance, on behalf of opposite party no.2 and accordingly, it was proceeded against exparte. Reply and evidence was filed by opposite party no.1. Thereafter, time was sought by Counsel for the complainants, to file rejoinder, however, it was not filed.
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5. In the reply filed by opposite party no.1, it was pleaded that since the Agreement was executed at New Delhi; and even the demand for payment was raised from Gurgaon Office; payments were also made at Gurgaon Office; this Commission lacks territorial jurisdiction. It is stated that the complaint is barred by limitation. It is asserted that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within definition of a consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
6. On merits, it is admitted that the complainants had purchased the residential unit, in question, in the manner, referred to above. Payment made by the complainants is also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. It is stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was also not disputed that as per Article 4.a.(i) of the Agreement, possession of the fully developed unit, was to be delivered to the complainants within a period of 36 months, from the date of execution of the same (Agreement), subject to force majeure conditions. It was further stated that it was the opposite party no.2, which was to construct the units. The Agreement dated 28.10.2009 was executed between both the opposite parties and in the said Agreement, it is clearly mentioned that opposite party no.2 is the developer of the project. Role played by opposite party no.1 is very limited, as such, it may not be fastened with the liability, as prayed for, in this complaint.
7. It is averred that for any delays, stipulated penalty has been provided in the Agreement, which safeguarded rights of the complainants. It was further stated that the developer was entitled to reasonable extension of time for delivery of possession of the unit, on account of force majeure circumstances or the reasons beyond its control. It was also stated that the answering opposite party no.l has no liability to make refund of the amount deposited. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
8. The complainants and opposite party no.1, led evidence in support of their case.
9. On completion of the proceedings, arguments of the parties concerned, were heard, in detail.
10. At the time of arguments, when we put a question to Counsel for opposite party no.1, as to when, possession is likely to be delivered, she very hesitantly said it will not take less than a year. As per admitted facts on record, possession of the unit was to be delivered on or before 27.10.2012 and till today, offer of possession has not been made to the complainants. Taking note of above facts, this complaint needs to be decided.
11. Contention of Counsel for opposite party no.1 that this Commission has got no territorial Jurisdiction, to entertain and decide the complaint deserves to be rejected. According to Section 17 of the Act, a consumer complaint could be filed by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to the complainants. It is apparent on record that the Marketing Office of opposite party no.1 is situated at SCO No.189-90-91, Sector 17-C, Chandigarh. In the Buyer's Agreement dated 28.10.2009, description of opposite party no.1 is given as under:-
"UNITECH LIMITED, a Public Limited Company duly incorporated under the Companies Act 1956, having its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh and its Registered Office at 6, Community Centre, Saket, New Delhi 110017 (hereinafter referred to as Unitech/Confirming Party) which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to include its executors, administrators, successors and assigns) acting through its authorized signatory"
12. It is clearly mentioned that the Marketing Office of opposite party no.1 is situated at SCO 189- 90-91, Sector 17-C, Chandigarh. It has been earlier noticed by this Commission, in the case of Sanjeev Dhir Vs. Unitech Limited, Complaint case No. 177 of 2016, decided on 01.08.2016, that it was the Marketing Office of opposite party no.1 situated at Chandigarh, which was responsible for development and marketing of the project, in question. Taking note of information placed on record, in the above case, it was observed as under:-
"It is clearly mentioned that the Company has its Marketing Office at SCO 189-90-91, Sector 17-C, Chandigarh. Registered Office is situated at 6, Community Centre, Saket, New Delhi.
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Be that as it may, as per documents placed on record by the opposite party, alongwith written statement, it becomes apparent that Marketing Office at Chandigarh/opposite party was responsible for development and marketing of the project, in question. Entire correspondence with the Authorities qua development of the project and getting necessary permissions were being taken up by the Officers of the opposite party, posted at Chandigarh. Above fact makes it clear that the Branch Office at Chandigarh was substantially taking up the activities qua the project, in question. Copy of customer ledger account Annexure C-25 in respect of the unit, in question, was also issued by the opposite party at Chandigarh. In para no.1 of the preliminary submission, it is also mentioned that Marketing Office of the Company is situated at Chandigarh. Besides all above, it has been candidly admitted by the opposite party, in para no.24 of its reply on merits, that that all the payments were received from the complainant by Chandigarh Office of the Company. The Hon'ble Supreme Court of India in State of Punjab Vs. Nohar Chand, 1984 SCR (3) 839 held that the Court(s), in whose Jurisdiction, products/goods are marketed, will have the territorial Jurisdiction to entertain and decide a complaint. The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. In view of fact of Marketing Office of the opposite party at Chandigarh and also as per the documents, referred to above, a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected."
13. Not only as above, payment of Rs.1,36,695/- vide cheque dated 21.07.2012, was received by the Regional Office of opposite party no.1, at Chandigarh. Photocopy of the cheque with receipt given is available at page 36 of the paper book. Facts narrated above, clearly goes to show that a part of action has accrued to the complainants at Chandigarh i.e. within the territory of this Commission, as such, this Commission has got territorial jurisdiction to entertain and decide the complaint.
14. To defeat claim of the complainants, another objection was raised by Counsel for opposite party no.1, that the complainants are speculators, as they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act.
15. It may be stated here that there is nothing, on record to show, that the complainants are the property dealers, and are indulged in sale and purchase of property, on regular basis. On the other hand, the complainants, in paragraph no.7 of their complaint supported by affidavit of complainant no.1, have clearly averred that they had purchased the said unit, for their residential purpose. In the absence of any cogent evidence, in support of the objection raised by opposite party no.1, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite party no.1, in it written reply, therefore, being devoid of merit, is rejected.
16. Another objection was raised by Counsel for opposite party no.1 that the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here, that the complainants hired the services of the opposite parties, for purchasing the unit, in the manner, referred to above. According to Article 4.a.(i) of the Agreement, physical possession of the unit, was to be delivered by the opposite parties, within a period of 36 months, from the date of execution of the same (Agreement) i.e. latest by 27.10.2012 alongwith all basic amenities as mentioned in Article 2.a.(iii) of the Agreement. Section 2 (1) (o) of the Act, defines service as under:-
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"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the 1986 Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by them, as they fall within the definition of consumer. In this view of the matter, the objection of opposite party no.1, in this regard, being devoid of merit, must fail, and the same stands rejected.
17. The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants is time barred. or not. It may be stated here that as per the Agreement, possession of the unit, was required to be delivered, in favour of the complainants by 27.10.2012. Admittedly, possession of the unit, in question, was not even offered to the complainants, by the stipulated date, or even by the time, the complaint was filed. On the other hand, still no firm date has been assigned by the opposite parties, for delivery of possession of the unit, for want of complete development work and basic amenities. At the same time, till date, amount deposited was also not refunded to the complainants alongwith interest. As such, there is continuing cause of action, in favour of the complainants to file a consumer complaint, in view of principle of law laid down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The objection taken by opposite party no.1, in this regard, being devoid of merit, must fail, and the same stands rejected.
18. Factual matrix of the case is not disputed. Vide Agreement aforesaid, built-up unit was purchased by the complainants from the opposite parties, for an amount of Rs.26,81,304/-. As stated above, by the time, this complaint was filed, they had paid an amount of Rs.23,68,391/-. After making payment of booking amount, rest of the payment was to be made as per construction raised at the spot. There is nothing on record to show that construction was raised as per schedule given, to handover possession within 36 months from the date of signing of Agreement. It is on record that at two times, there was slight delay in making payment. The said payment was made by the complainants with penal interest @18% p.a. Delivery of possession is not in sight even today. Counsel for opposite party no.1 has failed to give any commitment, as to within how much time, construction of the unit, will be completed. Very hesitantly, she said that delivery of possession will take not less than a year. Above facts, clearly goes to show that the opposite parties are guilty of deficiency in providing service to the complainants. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.
19. It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.23,68,391/- i.e. more than about 87% of the sale consideration, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. There is no dispute that for
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making delayed payments, the opposite parties were charging heavy rate of interest (compounded quarterly @18%) as per Article 2.c. of the Agreement, for the period of delay in making payment of instalments. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014)
6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.23,68,391/- alongwith interest @15% compounded quarterly, from the respective dates of deposits (less than the rate of interest charged by the opposite parties, in case of delayed payment i.e. 18% compounded quarterly, as per Article 2.c. of the Agreement), till realization.
20. As far as the plea taken by opposite party no.1 regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not the case of the opposite parties, that they were ready with possession of the fully developed unit, to be delivered to the complainants, by the stipulated date i.e. 27.10.2012, but the complainants wanted to rescind the contract, on account of some financial constraints or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the opposite parties, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as permissible under law. In this view of the matter, the plea taken by opposite party no.1, in this regard, has no legs to stand and is accordingly rejected.
21. As far as the liability of opposite party no.1, is concerned, it may be stated here that once it has been proved on record that opposite party no.1 was a necessary party to the Agreement; it also marketed the project, in question; and had also received part amount from the complainants, towards the said unit, through the cheque in question, favouring "Unitech" as such, it is equally liable alongwith opposite party no.2, to refund the amount paid by them (complainants). The objection raised by Counsel for opposite party no.1, in this regard, being devoid of merit, stands rejected.
22. No other point, was urged, by Counsel for the complainants and opposite party no.1.
23. For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties are jointly and severally directed as under:-
i. To refund the amount Rs.23,68,391/- to the complainants, alongwith interest @15% compounded quarterly, from the respective dates of deposits onwards.
ii. To pay compensation, in the sum of Rs.1.25 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
iii. To pay cost of litigation, to the tune of Rs.30,000/- to the complainants.
iv. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @18% compounded quarterly, instead of @15%, from the respective dates of deposits onwards, and interest @15% compounded quarterly, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
24. However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion. Pronounced.
22.08.2016
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[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
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(DEV RAJ)
MEMBER
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(PADMA PANDEY)
MEMBER
Rg.
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