Manish Khera v. Unitech Ltd.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. Consumer Complaint No.230 of 2015 Date of institution : 10.09.2015 Date of decision : 15.11.2016

1. Manish Khera s/o Mr. Darshan Kumar Khera, resident of F. No.411, AOT Complex, Sector 48-A, Chandigarh.

2. Mrs. Geeta Khera W/o Mr. Manish Khera, resident of F. No.411, AOT Complex, Sector 48-A, Chandigarh. .Complainants Versus

1. UNITECH LIMITED, through its Managing Director, S.C.O. No.189-191, Sector 17-C, Chandigarh.

2. ALICE DEVELOPERS PRIVATE LIMITED, through its Managing Director, Basement 6, Community Centre, Saket, New Delhi-110 017.

3. UNITECH LIMITED, through its Managing Director, Basement 6, Community Centre, Saket, New Delhi-110 017.

4. UNITECH LIMITED, through its Manager, SCO No.189-191, Sector 17-C, Chandigarh. .Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Gurdev Singh, President Shri Vinod Kumar Gupta, Member Present:- For the complainants : Shri Anuj Kohli, Advocate. For opposite parties No.1,3 & 4: Ms. Vertika H. Singh, Advocate. For opposite party No.2 : Ex parte. JUSTICE GURDEV SINGH, PRESIDENT : The complainants, Manish Khera and Mrs. Geeta Khera, have filed this complaint under Section 17(1)(a)(i) of the Consumer Consumer Complaint No.230 of 2015 Protection Act, 1986 (in short, the Act) for the issuance of following directions to the opposite parties:

i) to refund the entire deposited amount along with interest @ 18% p.a. from the date of deposit till the date of payment; ii) to refund and pay the amount charged as penalty on alleged delayed payment along with interest @ 18% p.a.; iii) to pay Rs.15,00,000/-, as compensation, for physical and mental agony and harassment suffered by them; iv) to pay Rs.55,000/-, as litigation expenses.

2. The complainants alleged, in their complaint, that the opposite parties launched a Project UNIHOMES (SECTOR-107), UNIWORLD CITY, MOHALI and that Project was widely advertised to allure innocent customers. Allured by the rosy picture painted by the opposite parties they booked/purchased the Apartment in their project and were allotted Apartment having Unit No.0045, Block A, GF. An agreement dated 29.12.2009 was signed between them and the opposite parties. At the time of allotment, signing of the agreement and even at the time of payment of instalments, they had been duly assured that the possession of the allotted Apartment shall be given to them within 36 months. They have duly made all the due payments in respect of the Apartment and more than 85% of the cost of the Apartment has already been paid Consumer Complaint No.230 of 2015 by them against receipts. The opposite parties had even wrongly, illegally and under duress charged interest on alleged delayed payments from them without any rhyme or reason and despite the fact that they have made no progress in construction at their end. The possession of the Apartment had not been handed over to them till the date of filing of the complaint in-spite of the payment of 85% of the cost thereof against receipts as per payment schedule. They visited the regional office of the opposite parties several times and requested to hand over the possession of the allotted apartment but they were put off by assuring that the possession shall be given to them shortly and in the last they were assured that the possession shall be handed over latest by Diwali in 2014. However, the possession was not given to them, which is apparently illegal on their part. They never cared to inform the applicants, like the complainants, about the true and actual position and kept them in dark and thereby deliberately misrepresented and cheated them by extracting money from them without giving the promised apartment. Still they did not lose hope, as they wanted the apartment for their family and, as such, they kept on believing their assurances. However, as per the information available with them, the Projects completion is not known to the Company itself and chances are very bleak for its completion in the near future. They even addressed latest communication in February 2015 in their last ditched effort to get their home/apartment but again the opposite parties displayed their non-responsive attitude. Consumer Complaint No.230 of 2015 Constrained by the situation they finally got served legal notice dated 4.4.2015 but they failed to respond. They paid all the instalments from their hard earned money and when the Project did not complete for so long, they contacted the officials of the opposite parties several times to know the exact status of the project and about the amount lying deposited with them. However, no clarity was given and they were put off on one pretext or the other and the exact status has not been disclosed and they have been left in the lurch now as the promised apartment has not been given to them till the date of filing of the complaint. The opposite parties cheated them and misappropriated their hard earned money. 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 agony and harassment.

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 apartment in question from them and that the agreement dated 29.12.2009 was signed between them and the complainants. They also did not dispute that the payments, as mentioned in the complaint, were made by the complainants and that the possession of the apartment has not been handed over to them. While denying the other allegations made in the complaint, they averred that the complainants themselves had approached them for purchasing the apartment. They were required to make the payments strictly as per the Consumer Complaint No.230 of 2015 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. 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 realty 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. (hereinafter referred to as, 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 Corporation for the supply of electricity and other amenities in the Project. Despite all the odd conditions they are making every endeavour to Consumer Complaint No.230 of 2015 complete the development work at the site and are making sincere efforts to hand over the possession of the apartment 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 apartment for the period of delay in offering the possession beyond the period of 36 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 were looking only for making easy money in the resale of the property but could not do the same due to overall slump in the real estate sector and, as such, they have not approached this Commission with clean hands. 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 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 29.12.2009 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 Consumer Complaint No.230 of 2015 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 their joint affidavit as Ex.CA and documents Ex.C-1 to Ex.C-5. No evidence has been produced by the opposite parties.

5. We have carefully gone through the averments of both the sides, evidence produced by the complainants in support of their 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 joint affidavit of complainants 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 booked and purchased the apartment from the opposite parties regarding which Agreement was signed Consumer Complaint No.230 of 2015 between the parties on 29.12.2009, Ex.C-1. The total price of the Apartment was Rs.26,81,304/- and as per the account statement of the complainants Ex.C-2, they paid the total amount of Rs.24,11,706/-. These facts have not been disputed by the opposite parties. After having paid the instalments, as per the Payment Plan, they became entitled to the possession of the apartment; which was to be delivered to them within 36 months of the date of the execution of the Agreement and that period expired on 29.12.2012. Even after that the complainants waited for about three years but the possession of the apartment 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 were entitled to the possession of the apartment, complete in all respects, with all the facilities within the period mentioned in the Agreement. After having failed to do so and there being no possibility of the completion of the flat in the near future, the complainants are entitled to the refund of the amount so deposited by them, along with the interest. By not delivering the possession of the apartment by the agreed date the opposite parties committed deficiency in service, as a result of which the complainants suffered mental and physical agony and harassment; as for all this time they were hoping to have their own apartment. On that account they are entitled to compensation as claimed in the complaint. Consumer Complaint No.230 of 2015

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. 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 apartment 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 apartment 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-1 has not been rebutted by the opposite parties Consumer Complaint No.230 of 2015 and that evidence was not challenged at all at the time of arguments. As per clause 4(a) of the Agreement Ex.C-1, after those payments had been made the possession of the apartment was to be offered to them by the opposite parties within 36 months of the signing of the Agreement. The same was signed on 29.12.2009 and, as such, the possession of the apartment was to be delivered to them on or before 29.12.2012. It is a fact that it is mentioned in the said clause itself that the delivery of possession of the apartment 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 apartment to the complainants within the period of 36 months was on account of force majeure circumstances or circumstances beyond their control?

9. The word force majeure has been defined in Concise Law Dictionary by P. Ramanatha Aiyar as irresistible force or compulsion; circumstance beyond ones control. It was held by the Honble Apex Court in AIR 1961 SC 1285 (M/s Dhanrajamal Gobindram v. M/s Shamji Kalidas and Co.) that force majeure means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal wave, flood, lightning, explosion, fire and any other happening which the lessee would not reasonably prevent or control. Consumer Complaint No.230 of 2015

10. To take refuge under the force majeure circumstances, it was incumbent on the part of the opposite parties to prove that the alleged circumstances were beyond their control. There may be worldwide recession and crunch in the real estate business but the opposite parties were bound to fulfil their commitment under the Agreement for developing the Project and delivering the possession of the Apartment to the complainants within the agreed time. These were the circumstances, which could have been foreseen and should have been kept in mind while agreeing upon the terms and conditions so mentioned in the Agreement. If these 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 not 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 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 not delivering the possession of the apartment 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. The other such circumstance, which has been argued before us and which has been so mentioned in the written reply of the Consumer Complaint No.230 of 2015 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 is proved on the record 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 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 development work at the site and sincere efforts are being made for handing over the possession of the apartment to the complainants.

12. 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 Consumer Complaint No.230 of 2015 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.

13. The complainants deposed in their affidavit Ex.CA that the projects completion is not known to the Company itself and chances are very bleak for its completion in the near future and whenever they tried to know the status of the construction/development of the Project, every time the opposite parties and their officials made excuses on one pretext or the other. They also deposed that the exact status has not been disclosed to them and they have been left in the lurch now as the promised apartment has not been given to them.

14. To rebut this evidence of the complainants, Lalit Gupta deposed in his affidavit that the construction work at the site is in full swing and he is making diligent and sincere efforts to complete the construction work and hand over the apartment to the complainants. There is no corroborative evidence in support of that Consumer Complaint No.230 of 2015 deposition. The opposite parties could have produced the recent photographs of the site for proving all those facts but have failed to do so. In the absence of such corroborative evidence it cannot be held that the deposition made by the complainants in their affidavit Ex.C-A stands rebutted by the affidavit of Lalit Gupta. In these circumstances when the opposite parties are not in a position to fulfil their part of the Agreement, they cannot retain the amount so deposited by the complainants. The complainants are entitled to the refund of that amount along with interest at suitable rate. In addition to that they are also entitled to the compensation for the harassment and mental agony suffered by them on account of the betrayal by the opposite parties in shattering their hope of getting the apartment by waiting for all this period.

15. Accordingly the complaint is allowed partly and following directions are issued to the opposite parties:-

i) to refund the amount of Rs.24,11,706/- along with interest at the rate of 12% per annum from the date of payment of different amounts till the date of 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 compliance of this order shall be made by the opposite parties within one month from the date of receipt of the certified copy of this order and failing that they shall be liable to pay interest on the Consumer Complaint No.230 of 2015 said amount of Rs.2,00,000/- at the rate of 12% per annum from the date of this order till the date of payment.

16. The arguments in this case were heard on 3.11.2016 and the order was reserved. Now, the order be communicated to the parties.

17. 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 November 15, 2016 Bansal