Chandigarh

StateCommission

CC/153/2015

Mr. Madan Lal Taneja - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Dev. Pvt.Ltd. - Opp.Party(s)

Pankaj Chandgothia, Adv

03 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	153 of 2015
Date of Institution	:	27.07.2015
Date of Decision	:	03.11.2015

Mr. Madan Lal Taneja S/o Sh. Radhu Ram, C/o #3065/1, Sector 40D, Chandigarh.
Smt. Bimla Taneja W/o Mr. Madan Lal Taneja, C/o #3065/1, Sector 40D, Chandigarh.

……Complainants

V e r s u s

M/s Omaxe Chandigarh Extension Developers P. Ltd., SCO 143-144, First Floor, Sector 8C, Chandigarh.

.... Opposite Party.

Complaint under Section 17 of the Consumer Protection Act, 1986

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

Argued by: Sh. Pankaj Chandgothia, Advocate for the complainants.

Sh. Vansh Malhotra, Advocate for the Opposite Party.

PER DEV RAJ, MEMBER

The facts, in brief, are that the Opposite Party floated a Scheme for the allotment of residential flats and independent floors, under the name and style of “SILVER BIRCH” in Omaxe Chandigarh Extension and officials of the Opposite Party started promoting the same in the year 2010 i.e. much before the actual drawings were prepared and even before the actual grant of licence to develop the land. It was stated that since the complainants were in urgent requirement of residential premises, in the developed area, they gave a cheque of Rs.4 Lacs as registration money for an independent floor, to the Opposite Party at its Chandigarh Office. It was further stated that the Opposite Party maintained stoic silence and did not send any formal allotment letter or Buyer’s Agreement. It was further stated that the complainants kept on visiting the Chandigarh office of the Opposite Party and paying the installments as demanded from time to time. It was further stated that meanwhile, allotment letter/Apartment Buyer’s Agreement was got signed on 27.6.2011 (Annexure C-2) at Chandigarh. It was further stated that vide letter dated 10.01.2014 (Annexure C-4), the Opposite Party informed that the construction was progressing fast and possession would be offered very soon. It was further stated that the Opposite Party demanded Rs.3,62,482/- (i.e. Rs.2,291.61 per sq. feet) on account of increase in area by 234 sq. ft. and as such, the complainants paid Rs.42,083/- in excess, which were liable to be refunded.

2. It was further stated that the Opposite Party even did not honour its commitment to pay Rs.10/- per sq. feet per month for delay in delivering possession. It was further stated that the complainants received a demand for payment alongwith offer of provisional possession dated 23.8.2014, received by email on 01.09.2014 (Annexure C-6). It was further stated that the amount of Rs.3,73,908/- mentioned therein was revised to Rs.3,42,304/- as per correct calculations, which the complainants paid vide letter dated 16.09.2014 (Annexure C-7). It was further stated that as per accounts statement (Annexure C-8), the complainants had cleared the entire dues towards the independent floor. It was further stated that the Opposite Party has not delivered the actual physical possession of the independent floor despite letters dated 2.2.2015 and 9.3.2015 (Annexures C-9 and C-10 respectively) sent to it by the complainants, which the Opposite Party was to deliver within 24 months at the most. It was further stated that two years period for handing over physical possession of the independent floor, from the date of Buyer’s Agreement, expired in June 2013. It was further stated that there was no concrete scheme or license or land available with the Opposite Party for the intended project and such pre-launch offers and bookings do not stand the scrutiny of law. It was further stated that the complainants took loan from the Bank to pay the installments, which had gone waste. It was further stated that complainant No.1 is suffering loss of rent deduction amounting to Rs.7,600/- per month and Rs.2,100/- approximately as loss of house rent allowance as the Opposite Party delayed delivery of possession of the flat, in question.

3. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party to give actual physical possession of the allotted independent floor after completing the same in all respects and to pay penalty @Rs.10/- per sq. feet per month for 2154 sq. feet apartment w.e.f. October 2012; refund the excess amount of Rs.42,083/- charged towards increase area alongwith interest; Rs.5 Lac as compensation for physical harassment and mental agony; pay house rent allowance @Rs.9,700/- per month w.e.f. October, 2012; Rs.1 Lac as punitive damages to be released in favour of the UT State Legal Services Authority and Rs.50,000/- as cost of litigation or any other relief, which this Commission deemed fit in the facts and circumstances of the case.

4. The Opposite Party, in its written statement, filed by way of affidavit of Sh. Dheeraj Sharma, its Officer, stated that while signing the Agreement, the complainants themselves chose Interest Free Construction Linked Installment Plan and now they could not step back by filing this complaint and was stopped by his own act and conduct. It was further stated that the allotment was never postponed by the Opposite Party and moreover, letter dated 17.7.2015 (Annexure R-1) was sent to the complainants requesting to take possession. It was further stated that the Buyer’s Agreement was given to the complainants at the very initial stage, which was admitted by them in Para 8 of their complaint. It was further stated that the Agreement/Allotment letter was forwarded for execution on 19.4.2011 (Annexure R-2). It was further stated that the complainants failed to disclose about the plan which was adopted by them. It was further stated that the complainants have delayed deposit of final payment. It was further stated that as per Clause 4 of the Agreement, the complainants were to pay for the initial 10% of increase in the area at the rate of the booking of the said unit and the balance increased area was to be paid at the prevailing Company’s rate/market rate. It was further stated that the delay part was on the complainants as the payment was not made in time. It was further stated that the construction was in progress from 15.9.2011 and the tentative date of possession, as per Clause 31E of the Agreement, was 15.8.2014. It was, however, admitted that as per Clause 24 of the Agreement, the construction/development of the independent floor/project was to be completed within 24 months from the date of start of the construction or within the extended period of six months, subject to force-majeure conditions. It was further stated that the complainants are raising baseless allegation to mislead the Commission. It was further stated that as the flat was completed long time back, the complainants were offered to take over possession and to get registration of his flat subject to clearing the remaining due amount (Annexure R-2). It was further stated that as on 23.8.2014, the offer of possession of the said unit had already been offered to the complainants. It was further stated that the Opposite Party was neither deficient, in rendering service nor it indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

5. The complainants filed rejoinder by way of affidavit of Sh. Madan Lal Taneja (complainant No.1), wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.

6. The complainants, in support of their case, submitted their joint affidavit, by way of evidence alongwith a number of documents.

7. The Opposite Party, in support of its case, submitted affidavit/reply of Sh. Dheeraj Sharma, its Officer, alongwith a number of documents, by way of evidence.

8. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.

9. It is evident on record that the complainants were allotted an independent floor by the Opposite Party vide allotment letter dated 27.6.2011 (Annexure C-2), total basic sale price whereof was Rs.40,54,600.00. Besides, Rs.40,000/-, Rs.85,000/- and Rs.20,000/- were payable on account of Club, power back-up installation cost and Interest Free Maintenance Security respectively. Thus, the total price was Rs.41,99,600/- as per Annexure-B (Part-II) (Page 41 of the file). It is also evident from Annexure-B (Part – III) (Page 42) that the complainants opted Plan B: Interest free construction linked payment plan. As per Clause 31(a) of the allotment letter, development of the unit was to be completed within 24 months or within an extended period of six months, from the date of start of construction, subject to force majeure conditions. The construction, as admitted by the Opposite Party in Para 10 of its written statement, started/was in progress w.e.f. 15.09.2011, which meant that by computing 24+6 months period, possession was to be offered by 15.03.2014. It is also evident that the complainants, by and large, had made the payment of installments in time. The Interest Free Construction Linked Installment Plan is extracted hereunder:-

Plan B:-	INTEREST FREE CONSTRUCTION LINKED INSTALLMENT PLAN
At the time of booking	Rs.<<BAmount>>/-
On allotment/within 45 days of booking	20% of BSP less Booking amount
On start of construction	10% of BSP + 50% of PLC (if any)
On completion of Plinth Level	10% of BSP + 50% of PLC (if any)
On casting of Ground Floor Roof	10% of BSP + 50% of Additional Cost
On casting of First Floor Roof	10% of BSP + 50% of Additional Cost
On casting of Second Floor Roof	10% of BSP
On completion of brick work and internal plastering	10% of BSP
On completion of flooring (except final grinding and external plastering)	10% of BSP
On completion of External Plastering	5% of BSP
On offer of possession	5% of BSP + Other Cost (if any) + Stamp Duty, Registration & Other Charges (if Any)

As per statement dated September 27, 2014 (Annexure C-8) (Page 59), against the payable amount of Rs.48,07,186.64, a sum of Rs.48,03,281.01 + Rs.1,41,357.74 (service tax), totaling Rs.49,44,638.75, stood received by the Opposite Party, which included final payment in the sum of Rs.3,42,304/- by the complainants on account of increase in area of the Unit, demand for which was raised by the Opposite Party vide letter dated 23.8.2014 (Annexure C-6). The Counsel for the complainants submitted that the complainants made payment of a sum of Rs.4,00,620/- in advance for which, the Opposite Party accorded credit note dated 3.6.2011 on account of interest amounting to Rs.3,905.63 on account of advance payment. Provisional possession was offered to the complainants vide letter aforesaid, paras 3 and 4 whereof, being relevant, are extracted below:-

“Be the Proud owner-in-possession of your dream house in our Prestigious Project “OMAXE SILVER BIRCH”, which is a logical destination of growing aspirations, a home to some of the finest elements of accomplished lifestyle. In this regard, we take immense pleasure to inform you that allotted above said unit is on the verge of completion.

We hereby offer you provisional possession of the said unit upon compliance of necessary formalities by you including payment of balance sale consideration as stated in the Statement of Account annexed hereto as Annexure-A to this Letter within 15 days to the date of letter. Upon realisation of said amount, the final finishing touches to your Residential Unit will be taken up and; on completion of codal formalities and registration of Conveyance Deed for said unit in your favour, the possession of the above said unit will be handed over to your goodself as per the terms of the Allotment Letter.”

10. The first question, which falls for consideration, is, as to whether there was delay in offering possession of the unit, in question? Clearly, the complainants opted for Interest Free Construction Linked Installment Plan. As admitted by the Opposite Party in Para 10 of its written statement, the construction started w.e.f. 15.09.2011 and as per Clause 23 of the basic terms and conditions annexed with the application form (Annexure C-1) and Clause 31(a) of the allotment letter (Annexure C-2), the same was to be completed within a period of 24 months plus 6 months extended period from the date of start of construction. The aforesaid period of 30 months from the date of start of construction expired on 15.03.2014. The Opposite Party offered provisional possession of the unit, in question, vide letter dated 23.8.2014 (Annexure C-6), whereby, the Opposite Party raised a demand of Rs.3,73,908.75, which was subsequently revised to Rs.3,42,304/-. The complainant deposited the same (Rs.3,42,304/-) vide letter dated 16.09.2014 (Annexure C-7). In its letter aforesaid (Annexure C-6), the Opposite Party admitted that the final finishing touches to the residential unit would be taken up and on completion of formalities and registration of conveyance deed for said unit in favour of the complainants, possession of the above said unit would be handed over to the complainants as per the terms of the allotment letter. Further vide letter dated 17.7.2015, the Opposite Party informed the complainants that it was in the process of getting the conveyance deed registered with the concerned authorities, which meant that uptill 17.7.2015, the Opposite Party was not in position to deliver physical possession of the allotted unit. Certainly, the Opposite Party was deficient in rendering service by not offering physical possession of the unit, in question, complete in all respects, to the complainants within the stipulated period aforesaid. Thus, delay of around 1½ year is attributed to the Opposite Party. For such a delay in delivering physical possession of the unit beyond the stipulated period, in terms of Clauses 23 and Clause 31(a) aforesaid, the complainants are entitled to compensation of Rs.10/- (Rupees Ten only) per sq. ft. per month. Thus, while the Opposite Party on account of its failure to adhere to the time schedule for delivering physical possession by 15.03.2014 was not only deficient in rendering service, but also indulged into unfair trade practice.

11. The next question, which falls for consideration, is, as to whether excess payment in the sum of Rs.42,083/- was realized by the Opposite Party on account of increase in the area of the unit in question and the complainants were entitled to its refund. As is evident from the contents of letter dated 10.01.2014 (Annexure C-4), the Opposite Party informed the complainants that the changes in the building plan of the complex were duly approved, consequent to which, the area of the provisionally allotted unit was increased by approx. 234 sq. ft and the revised area of the unit arrived to 2154 sq. ft. Vide this letter, the Opposite Party also requested the complainants to make payment of proportionate outstanding towards increase in the area of the unit on or before 25.01.2014 as per demand letter. As admitted by the Opposite Party in letter dated 10.1.2014, the increased area was to be charged at the original booking rate. The relevant para of letter dated 10.01.2014 is extracted hereunder:-

“We have provisionally allotted you a Unit bearing No.669P admeasuring tentative area of 1920 sq. ft. on FF floor in the aforesaid Residential Township and executed an Allotment Letter/Agreement dated 12:00:00 AM (MM-DD-YYYY) in your favour. Keeping in mind the overall betterment of the Residential Complex/best utilization of the area, changes in the building plan of the aforesaid Complex had been suggested by the Architects of the Company, which was duly approved by the sanctioning authority and these lead to change in the size of your provisionally allotted Unit, thereby an increase of area of approx. 234 sq. ft. in the size of the aforestated provisionally allotted Unit. Thus, the revised area for the Unit arrived to 2154 sq. ft. instead of old allotted Unit. Increased area will be charged at the original booking rate.”

It is the case of the complainants that the Opposite Party instead of charging for the increased area @Rs.2,111.17 per sq. ft, per sq. feet and, as such, an excess amount of Rs.42,083/- was charged by the Opposite Party, which is to be refunded to the complainants. In view of contents of letter aforesaid, the Opposite Party could charge for the increased area, as admitted by it in the aforesaid letter, at the original booking rate. Since the Opposite Party, for the increased area, charged @Rs.2291.61 per sq. ft., the complainants are entitled to refund of Rs.42,083/-.

12. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment caused to them. It may be stated here, that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainant. The word ‘compensation’ is again of very wide connotation. It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Consumer Foras have been vested with the Jurisdiction to award the value of goods or services and compensation, it has to be construed widely enabling them (Consumer Foras), to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras to redress any injustice done to the complainant. The Commission or the Forum in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. Similar principle of law was laid down, in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=III (2004) SLT 161=(2004) 5 SCC 65. In the instant case, the complainants suffered a lot of mental agony and physical harassment, at the hands of the Opposite Party, as it failed to deliver the physical possession of unit, in question, to them (complainants), by the promised date i.e. 15.03.2014. The complainants purchased the unit, with the hope to live in, but their hopes were dashed to the ground. Till date, i.e. even after the expiry of a period of more than 1½ years, from the promised date, i.e. 15.03.2014, physical possession of the unit, has not yet been delivered, to the complainants, by the Opposite Party. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. Compensation to the tune of Rs.50,000/- if granted, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.50,000/-.

13. No other point, was urged, by the Counsel for the parties.

14. For the reasons recorded above, the complaint, is partly accepted with costs, in the following manner:-