Haryana

StateCommission

A/400/2018

OMAXE LTD. - Complainant(s)

Versus

ASHOK KUMAR SINGA AND OTHERS - Opp.Party(s)

MUNISH GUPTA

27 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.400 of 2018

                                                 Date of Institution: 03.04.2018

                                                        Date of Final Hearing: 27.09.2022

Date of pronouncement: 20.12.2022

Omaxe Ltd., Corporate Office-Omaxe House-7, Local Shopping Centre, Kalkaji, New Delhi 110019 (India) through its authorized signatory namely Sh.Deepanjit Singh S/o Sh.Satwant Singh.

…..Appellant

Versus

1. Ashok Kumar Sinha S/o Sh.Shyam Sunder;
2. Smt. Pushpa Sinha W/oSh.Ashok Kumar sinha;

Both residents of H.No.728, Sector-6, Bahadurgarh, Distt. Jhajjar (Haryana).

3. Shri Ganga Paper Mills Pvt. Limited through its Director Mr. pawan Kumar Singhal, Regd. Office at 13, Patel Marg, Ghaziabad (UP).

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr.Manjinder Kumar, Advocate for the appellant.

                   Mr. Parmod Chauhan, Advocate for respondent Nos.1 and 2.

                   Mr. Anoop Singla, Advocate for respondent No.3.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

          Delay of 19 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.

2.       The brief facts of the case are that on 22.08.2012, the complainant  purchase a flat  having total cost of Rs.44,00,000/- with opposite party No.1 in Royal Street Jhajjar road, Bahadurgarh at Sector 14 belonging to Omaxe through opposite party No.2. At the time of booking this unit a payment of Rs.4,00,000/- was done by him through cheque dated 22.08.2012. Thereafter, the complainant also mde other payments and thus paid Rs.12,00,000/- in all to the OPs. The OP No.1 had handed over its allotment power to Shri Ganga Paper-OP No.2. The project was to be completed within a period of two years from the date of booking, and possession was to be handed over to the complainant by the opposite parties within two years from the date of booking which was 22.08.2012 and thus the relevant date of possession was 22.08.2014. Rest of the amount of Rs.32,00,000/- was to be paid in 36 equal monthly installments just after handing over the possession to him.  No payment was to be done in between booking time and the time of handing over the possession.  On 03.07.2014 OPs earmarked a flat unit bearing Nos. as RSJB/First/A 61 corresponding to the customer ID RSJB/75/TI. The builder started construction in March 2015, which exceeded the time limit of construction  as well as possession of the flat.  The OPs started demanding illegally by way of quarterly demand of Rs.4,00,0000/- which was totally against the essence and terms and conditions of agreement.   The OPs vide letter dated 24.01.2017 illegally cancelled the flat and forfeited the booking amount.  The complainant requested the OPs to return the amount of Rs.12,00,000/-, but, to no avail. Thus there being deficiency in service on the part of the OPs, hence the complaint.

3.      Notice issued to OPs.  Written statement was filed.  Preliminary objections about complaint being not maintainable, want of pecuniary and territorial jurisdiction, want of cause of action etc were also raised and request to dismiss the complaint.

          On merits, it was denied that any unit/flat in the project of the respondent was booked by them.  It was submitted that M/s Shri Ganga Paper Mills Pvt. Ltd. having its office at 13, Patel Marg, Ghaziabad through its director Mr. Pawan Kumar Singhal applied for advance registration of a unit in the project of the respondent . Later before allotment of any unit aforesaid M/s Shri Ganga Paper Mills Pvt. ltd. alongwith the complainants jointly applied for assignments of rights in  registration in favour of the complainants. The unit was not directly booked by the complainants, rather the same was purchased from open market.   It was denied that respondent had delegated any powers to M/s Shri Ganga Paper Mills Pvt. Ltd.  It has also been denied that complainants paid Rs.12,00,000/-.    It was submitted that a sum of Rs.8,00,000/- has been paid by the complainants and received by the OPs out of which a sum of Rs.7,76,020.96 paise was received against booking and installment and a sum of Rs.23,979.04 paise was received towards applicable service tax. It was also denied that possession of the flat was to be handed over without payment of entire sale consideration.  The complainants deliberately and intentionally did not pay installments as per agreed payment plan. The complainants were forwarded allotment letter vide its letter dated 02.03.2015 for execution which the complainants intentionally did not return after due execution.   The complainants were provided several opportunities to make balance payment vide letters of respondent dated  01.12.2014, 07.01.2015, 01.02.2015 , 02.03.2015, 26.03.2015, 21.04.2015, 06.05.2015, 01.06.2015, 08.07.2015, 03.08.2015, 21.08.2015, 01.09.2015, 06.10.2015, 02.12.2015, 03.11.2015, 17.12.2015, 02.01.2016, 18.01.2016, 31.01.2016, 18.02.2016, 01.03.2016, 15.03.2016, 01.04.2016, 18.04.2016, 03.05.2016, 19.05.2016, 01.06.2016, 16.06.2016, 01.07.2016, 20.07.2016, 03.08.2016, 16.08.2016, 02.09.2016, 15.09.2016, 01.10.2016, 31.10.2016, 18.11.2016 and 01.12.2016.  The possession of the unit was offered to them vide its letter dated 28.12.2016, but, the complainants did not deposit the balance dues.  The complainants have not deposited the due amount as per agreed payment plan only, then allotment was cancelled vide letter dated 24.01.2017 and earnest money, out of the total deposited amount was forfeited.   The complainant is only entitled for refund, if any, after deduction of Rs.5,00,000/- as earnest money as already conveyed to them vide letter dated 24.01.2017. Thus there being no deficiency in service on the part of the OPs.

4.      After hearing both the parties, the learned District Commission, Jhajjar has allowed the complaint vide order dated 07.02.2018, which is as under:-

“In view of aforesaid discussion and findings, it is observed that there is deficiency in service on the part of both the respondents. Therefore, it is directed that the respondent No.1 shall refund the amount of Rs.8,00,000/- and the respondent No.2 shall refund the amount of Rs.4,00,000/- to the complainants alongwith an interest @ 9% p.a. from the date of receiving such amount to the complainants till realization of final payment to the complainants. The complainants are also entitled for a sum of Rs.5500/- each from both the respondents on account of litigation expenses for the present unwanted and unwarranted litigation only due to the deficiency in service on the part of the respondents. The complaint stands disposed of accordingly. ”

5.      Feeling aggrieved therefrom, OP No.1-appellant has preferred this appeal.

6.      The arguments have been advanced by Mr.Manjinder Kumar, learned counsel for the appellant as well as Mr.Parmod Chauhan, Advocate for the respondent Nos.1 and 2 and Mr. Anoop Singla, Advocate for the respondent No.3. With their kind assistance the entire record of the appeal as well as the original record of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

7.      Learned counsel for the appellant has vehemently argued that  complainants have not deposited the balance dues. Continuing further it was argued that a sum of Rs.8,00,000/- has been paid by the complainants out of which a sum of Rs.7,76,020.96 paise was received against booking and installment and a sum of Rs.23,979.04 paise was received towards applicable service tax. The complainants were provided several opportunities to make balance payment vide letters of respondent dated  01.12.2014, 07.01.2015, 01.02.2015 , 02.03.2015, 26.03.2015, 21.04.2015, 06.05.2015, 01.06.2015, 08.07.2015, 03.08.2015, 21.08.2015, 01.09.2015, 06.10.2015, 02.12.2015, 03.11.2015, 17.12.2015, 02.01.2016, 18.01.2016, 31.01.2016, 18.02.2016, 01.03.2016, 15.03.2016, 01.04.2016, 18.04.2016, 03.05.2016, 19.05.2016, 01.06.2016, 16.06.2016, 01.07.2016, 20.07.2016, 03.08.2016, 16.08.2016, 02.09.2016, 15.09.2016, 01.10.2016, 31.10.2016, 18.11.2016 and 01.12.2016, but to no avail. The possession of the unit was offered to them vide its letter dated 28.12.2016 subject to payment of due amount, but, again complainants did not deposit the balance dues.  Since the complainants have not deposited the due amount so as per agreed payment plan, the allotment of the flat was rightly cancelled vide letter dated 24.01.2017 and earnest money, out of the total deposited amount was forfeited. Counsel further argued that complainants were only entitled for refund, if any, after deduction of Rs.5,00,000/- as earnest money stood already conveyed to them vide letter dated 24.01.2017.

8.       Learned counsel for the respondent No.1-complainants vehemently argued that they purchased the flat in question in the year 2012 and deposited Rs.12,00,000/- with the OP No.1, but, the possession of the flat in question has not been delivered till date.  The complainant requested the OPs to pay back the deposited amount alongwith interest, but, to no avail. The learned District commission has  rightly allowed the complaint.

9.  Perusal of Ex.C-1 shows that  on 22.08.2012, the complainants had paid four lacs cash to the Pawan Saluja working under the name and style of “Shubh Reality Properties against the booking of top floor flat in Royale State Jhajjar road Sector 14 of Omaxe, Bahadurgarh, Jhajjar, but, the receipt itself does not mention that payment was received by opposite party No.1. A receipt issued by Rajeev Yadav for Ganga Paper Mills also shows that the complainants paid Rs.Eight lacs in the name of Ganga Paper Mills against booking of a three bedrooms top floor flat. Thus, it is clear that the complainants had paid Rs. Eight lacs to the opposite party No.1. Copy of Affidavit cum undertaking dated 19.12.2012 shows that complainants paid a sum of Rs.7,76,020.96, one of the complainant has signed the affidavit cum undertaking. Perusal of Ex.R-2(colly) shows that the OPs provided several opportunities to the complainants to deposit the balance dues, but, they did not deposit their dues.  Even the OPs offered the possession vide letter dated 28.12.2016 subject to deposit of remaining sale consideration amount of the unit, but, they did not deposit the same.  The statement of account dated 28.12.2016 shows that the balance dues was Rs.45,13,901.68. In this statement of account interest on account of delayed payment was Rs.9,82,434/-, which was agreed by the complainants and also signed the  interest sheet.  The amount deposited stood forfeited on account of cancellation and as such, the complainants were not entitled to refund of the amount as they were the defaulters.  In view of the above, the complainants were not entitled for the amount of Rs.12,00,000/- alongwith 9% interest p.a. as allowed by the District Commission.

10.    In view of our aforesaid discussions, we are of the view that the District Commission has failed to appreciate the above stated facts. Hence, the appellant cannot be held liable to pay the awarded amount to the complainants. Thus, the impugned order cannot be allowed to sustain. Hence, the impugned order dated 07.02.2018 is  hereby set aside and the appeal is allowed and accordingly the complaint is dismissed.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

12.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

13.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

14.    File be consigned to record room.

 

 

20^th December, 2022          Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member                            

 

S.K

(Pvt. Secy.)