Chandigarh

StateCommission

CC/207/2019

Anjali - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Private Limited - Opp.Party(s)

Narender Yadav, Vineet Yadav, Adv.

05 May 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	207 of 2019
Date of Institution	:	13.09.2019
Date of Decision	:	05.05.2021

 

1. Anjali w/o Sh.Rahul Shahi
2. Rahul Shahi s/o Sh.Bahadur Chand Shahi

Both H.No.280, Ward No.4 NAI, Abadi Khanna, GT Road, Khanna, Ludhiana.

……Complainants

V e r s u s

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Regional Office at SCO 139-140, Sector 8-C, Chandigarh, through its Managing Director/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Registered Office at Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.
3. Bhupendra Singh, Director, Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.
4. Kamal Kishore Gupta, Director, Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.

Email –customerrelations_chandigarh@omaxe.com

5. State Bank of India, Guru Nanak Nagar, Badinpur, Punjab-141401, through its Branch Manager.

 Email:-customercare@sbi.co.in

…..Opposite parties

 

Present through video conferencing:

                     

Sh.Narender Yadav, Advocate for the complainants.

Sh.Gazi Mohd.Umair, Advocate for opposite parties no.1 to 4.

Opposite party no.5 exparte vide order dated 20.01.2020.

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Complaint case No.	:	208 of 2019
Date of Institution	:	13.09.2019
Date of Decision	:	05.05.2021

 

1. Vipin Kumar Singla S/o Sh.Shayam Sunder Singla
2. Sanjay Singla S/o Sh.Shayam Sunder Singla

Both resident of H.No.131, Sector 4 D, Mandi Gobindgarh, Fatehgarh Sahib, Punjab.

……Complainants

V e r s u s

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Regional Office at SCO 139-140, Sector 8-C, Chandigarh, through its Managing Director/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Registered Office at Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.
3. Bhupendra Singh, Director, Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.
4. Kamal Kishore Gupta, Director, Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.

Email –customerrelations_chandigarh@omaxe.com

5. PNB Housing Finance Limited, SCO No.323-324, First Floor, Sector 35-B, Chandigarh.

 Email:-customercare@pnbhousing.com

…..Opposite parties

 

Present through video conferencing:

                     

Sh.Narender Yadav, Advocate for the complainants.

Sh.Gazi Mohd.Umair, Advocate for opposite parties no.1 to 4.

Sh.Sumit Puri, Advocate proxy for Sh.Armaan Bakshi, Advocate for opposite party no.5.

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Complaint case No.	:	209 of 2019
Date of Institution	:	13.09.2019
Date of Decision	:	05.05.2021

 

Manu Khosla w/o Sh.Vinay Khosla, Resident of H.No.78-79, Near Markfed, Friends Colony, G.T. Road, Khanna, Punjab

……Complainant

V e r s u s

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Regional Office at SCO 139-140, Sector 8-C, Chandigarh, through its Managing Director/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Registered Office at Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.
3. Bhupendra Singh, Director, Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.
4. Kamal Kishore Gupta, Director, Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway at Jaipur-302026.

Email –customerrelations_chandigarh@omaxe.com

5. PNB Housing Finance Limited, SCO No.323-324, First Floor, Sector 35-B, Chandigarh. Email:-customercare@pnbhousing.com

…..Opposite parties

 

Present through video conferencing:

                     

Sh.Narender Yadav, Advocate for the complainant.

Sh.Gazi Mohd.Umair, Advocate for opposite parties no.1 to 4.

Sh.Sumit Puri, Advocate proxy for Sh.Armaan Bakshi, Advocate for opposite party no.5.

 

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BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   By this order, we propose to dispose of the aforesaid three consumer complaints. Since, the facts involved in the above complaints, except minor variations, here and there, of fact and law are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the respective complainants, seeking refund of the amount paid alongwith interest; compensation etc., on the ground that they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors.  because there has been an inordinate delay with regard to delivery of possession of the respective units booked by them, in its project, for dearth of construction and development activities. Details with regard to the project in dispute; units booked by the complainants; payments made by them etc. of these complaints are given below:-

CC No.	207 of 2019	208 of 2019	209 of 2019
Project name	“The Lake”, Omaxe New Chandigarh, District SAS Nagar, Punjab	“The Lake”, Omaxe New Chandigarh, District SAS Nagar, Punjab	“The Lake”, Omaxe New Chandigarh, District SAS Nagar, Punjab
Booking date.	19.08.2014	05.05.2015	06.07.2015
No. and area of the unit	1580 sq. ft.	1580 sq. ft.	1285 sq. ft.
Total cost of the unit	72,94,613.00	84,73,372.00	60,06,405.00
Amount paid as per the complainants	63,39,972.51	72,22,281.46	50,46,255.00
Source of payment	Housing Loan from SBI	Housing Loan from PNB Housing Finance Ltd.	Housing Loan from PNB Housing Finance Ltd.
Agreement	07.04.2015	20.08.2015	18.08.2015
Possession date	06.04.2019 (42 months plus 6 months grace period as per condition no.40(a) of the allotment letter/agreement	19.02.2019 (36 months plus 6 months grace period as per condition no.40(a) of the allotment letter/agreement	17.02.2019 (36 months plus 6 months grace period as per condition no.40(a) of the allotment letter/agreement
Possession offered or not	Not offered	Not offered	Not offered
Delay in years	More than 2 years which is continuing	More than 2 years which is continuing	More than 2 years which is continuing

         

3.           Hence these complaints.  
4.           The claim of the complainants, in all the three complaints has been contested by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd.  on numerous similar grounds,  inter alia, that in the face of existence of provision to settle disputes between the parties through Arbitration this Commission has no jurisdiction to entertain these consumer complaints; that the complainants being speculators did not fall within the definition of “consumer” as the units in question were purchased for commercial purposes; that this Commission did not vest with pecuniary and territorial jurisdiction to entertain and decide these complaints; that all permissions/approvals were shown to the complainants at the time of booking of the units in question;  that since the project in question has been got registered under RERA, under which the competent authority has granted completion period thereof till 31.07.2021, as such, these complaints having been filed in the year 2019 are premature; that construction work at the project site is going on in full swing and possession of the units will be  delivered soon; that the period mentioned in the allotment letters/agreements was excluding of Sundays and public holidays; that in case of delay in delivery of possession of the units to the complainants, they will be paid compensation as provided in the allotment letters/agreements; that still if the complainants want refund of their amounts, forfeiture clause will be made applicable;  that since complicated questions of fact and law are involved in these complaints and also the complainants have leveled allegations of cheating, as such, this Commission is not competent to decide the same under summary proceedings and need to be relegated to the Civil Court; that the complainants were defaulters in making payment towards price of their respective units; and that still they have not made the payments in accordance with the payment schedule.
5.           In consumer complaint bearing no.208 of 2019, it has been additionally stated that relocation to unit therein, was done only on the requests made by the complainants. Furthermore, in consumer complaints bearing nos.208 and 209 of 2019 it has been stated that the complainants therein have paid only Rs.12,01,529/- and Rs.12,06,189/- respectively, from their own pocket, and rest of the amount has been paid by  opposite party no.5 i.e. PNB Housing Finance Limited, under subvention scheme, respectively.
6.           Despite deemed service, none put in appearance on behalf of Opposite party no.5-State Bank of India in consumer complaint bearing no.207 of 2019, as a result whereof, it was proceeded against exparte vide order dated 20.01.2020.
7.           In consumer complaints bearing nos.208 and 209 of 2019, opposite party no.5-PNB Housing Finance Limited, in its separate written statements submitted that the consumer complaints are not maintainable against it, as it is the loan sanctioning unit only and has no relation whatsoever with the dispute between the complainants and the builder/developer -M/s Omaxe Chandigarh Extension Developers Pvt. Ltd.
8.           The contesting parties led evidence in support of their cases.
9.           We have heard the contesting parties and have gone through the entire record of these cases, including the written arguments filed by the contesting parties, very carefully.
10.           First of all, coming to the objection raised with regard to jurisdiction of this Commission with regard to settlement of these cases through an Arbitrator, in the fact of existence of arbitration clause contained in the allotment letters/agreements, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No.701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. in this regard stands rejected.
11.           Now coming to the objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the builder/developer -M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors.,  to establish that the complainants, in these complaints, have purchased the units in question, in the manner explained above, to indulge in ‘purchase and sale of units/plots’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainants are consumers as defined under the Act. Mere fact that the complainants are living in other houses or that they allegedly have other properties in their names, is not a ground to shove them out of purview of consumer. Objection taken in this regard as such stands rejected.
12.           Now coming to the objections raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant cases, record reveals that number of letters/documents have been placed on record which have been issued by  the opposite parties mentioning the address of the company thereon as SCO No. SCO Nos.139-140 and 143-144, 1^st Floor, Madhya Marg, Sector 8-C, Chandigarh, meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Offices at Chandigarh and personally work for gain thereat:-

 

 

In CC No.207 of 2019:-

1. Allotment letter/agreement dated 07.04.2015, Annexure C-2 has been executed between the parties at Corporate Office of the company at SCO No.139-140, 1^st Floor, Madhya Marg, Sector 8-C, Chandigarh. The said allotment letter/agreement bears round stamp of Chandigarh Office of the company on all the pages;
2. Letter of permission of change of land use dated 18.10.2011 in respect of the project in question was also issued by the Department of Town and Country Planning, Punjab, in favour of the company at SCO No.143-144, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh; and
3. Letter dated 10.06.2014, with regard to approval of revised layout plan in respect of the project in question had also been issued by the Department of Town and Country Planning, Punjab, in favour of the company at SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh;

 

In CC No.208 of 2019:-

1. All the payment receipts starting from 05.05.2015 to 07.03.2017, Annexure C-3 colly. have been issued from SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh.
2. Allotment letter/agreement, Annexure C-4 has been executed between the parties at Corporate Office of the company at SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh. The said allotment letter/agreement bears round stamp of Chandigarh Office of the company on all the pages; and
3. Letter dated 10.06.2014, with regard to approval of revised layout plan in respect of the project in question had also been issued by the Department of Town and Country Planning, Punjab, in favour of the company at SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh.

 

 

In CC No.209 of 2019:-

1. Allotment letter/agreement dated 18.08.2015, Annexure C-2 has been executed between the parties at Corporate Office of the company at SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh. The said allotment letter/agreement bears round stamp of Chandigarh Office of the company on all the pages;
2. Letter of permission of change of land use dated 18.10.2011 in respect of the project in question was also issued by the Department of Town and Country Planning, Punjab, in favour of the company at SCO No.143-144, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh; and
3. Letter dated 10.06.2014, with regard to approval of revised layout plan in respect of the project in question had also been issued by the Department of Town and Country Planning, Punjab, in favour of the company at SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh.

 

Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.

13.           Now coming to the objection taken regarding pecuniary jurisdiction, it may be stated here that these complaints have been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any. In these complaints, if the total value of the respective units in question and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. It is significant to add here that the complainants in CC No.208 and 209 of 2019 had paid only Rs.12,01,529/- and Rs.12,06,189/- respectively from their own pocket and rest of the amount has been paid out of the housing loan obtained by them from opposite party no.5. It has also been prayed by the complainants in these complaints that the amount paid by them be refunded to them alongwith interest. Thus, under these circumstances also, if we calculate the relief sought by the complainants, in these complaints alongwith value of the respective units, the same fell more than Rs.20 lacs but below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.
14.           There is no dispute with regard to purchase of respective units by the complainants, in the project of the opposite parties, as per the details mentioned in the chart above. There is also no dispute with regard to the fact that despite the fact that in these complaints, substantial amounts, referred to above, were received by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. from the complainants, yet, possession thereof has not been offered and delivered by the committed dates, referred in the chart above or even by the dates when these complaints have been filed or even thereafter. However, to wriggle out of the situation, it has been stated by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. in the respective replies filed and also by its Counsel that since the project in question had been got registered under RERA, under which the competent authority has given completion period upon 31.07.2021, as such, it cannot be said that there is delay on the part of the company. It was further contended that construction work at the project site is going on in full swing and possession of the units will be delivered very soon.
15.           In the first instance, candid admission on the part of the company to the effect that still the construction work is going on at the project site, is sufficient to prove the case of the complainants that there is a delay in delivery of possession of the respective units. It may be stated here that the units in question were booked as far as back in 2014-2015 and now it is May 2021 and still the company is saying that it will take more time for completion of the construction work. Even this contention is without any cogent and convincing documentary evidence. It is settled law that onus to prove the stage and status of construction and development work at the project, is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present cases, not even an iota of evidence has been placed on record by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. to prove as to at what stage, construction and development work has reached at the project site. In case, the development/construction activities, are being undertaken and is about to complete, then it was for the company, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but they failed to do so.
16.           From the peculiar circumstances of these cases, it has been proved that the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in disadvantageous deals with the builder/developer -M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the deals with intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on their part. The complainants were thus caused mental agony, harassment and financial loss at the hands of the builder/developer -M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., as they were deprived of their house and also the amount paid by them towards their respective units were utilized by the company without providing them anything for a long period and are still empty handed.
17.           However, to defeat the claim of the complainants, it has been contended that since the project has been got registered under RERA, under which the competent authority has given the date of completion period for the project as 31.07.2021, as such, these complaints filed are premature. We do not agree with the contention raised. It may be stated here that once a specific period for completing the construction work, has been mentioned in the allotment letters/agreements, as shown in the chart above, now at this stage, the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., cannot wriggle out of the same. In any case, the period of delivery of possession of the units has to be taken from the allotment letter/agreement only and not from the date of registration of the project RERA. Our’s this view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in M/s. Imperia Structures Ltd. Vs. Anil Patni and Anr., [Civil Appeal No. 3581-3590 of 2020 @ Civil Appeal Diary No. 9796/2019], decided on November 02, 2020.   Relevant part of the said order reads as under:-

“…….Merely because the registration under the RERA Act is valid till 31.12.2020 does not mean that the entitlement of the concerned allottees to maintain an action stands deferred. It is relevant to note that even for the purposes of Section 18, the period has to be reckoned in terms of the agreement and not the registration. Condition no.(x) of the letter dated 17.11.2017 also entitles an allottee in same fashion. Therefore, the entitlement of the Complainants must be considered in the light of the terms of the Builder Buyer Agreements and was rightly dealt with by the Commission….”

Under above circumstances, it is held that in no way, these complaints can be said to be premature. Objection taken in this regard being devoid of merit stands rejected.

18.            It is significant to mention here that because the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., is still not sure as by which date/period possession of the units could be delivered to the complainants, which had been booked by them, as far as back in 2014-2015 and the period mentioned in the respective allotment letters/agreements has also expired, as such, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present cases also, since there has been an inordinate delay in the matter, which is still a continuing one, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits in view of decision rendered by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment and also by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019  and Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, wherein interest @12% p.a. was awarded to the complainant, on the amounts to be refunded to them from the respective dates of deposits; that will meet the ends of justice.
19.           At the same time, it is also held that if the complainants did not make remaining payment towards price of the said units, when they saw that the development at the project site has not been completed and possession of their respective units  have not been offered to them by the promised dates or even thereafter, they cannot be termed as defaulters, in view of the principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein, it was held that if the builder is at fault in not delivering possession of the residential units by the stipulated date or within reasonable period, it cannot expect the allottee(s) to go on paying installments to it. Similar view has also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.  
20.           As far as objection taken by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors. to the effect that because complicated questions of fact and law are involved in these cases and also because allegations of cheating have been leveled by the complainants, as such, this Commission is not competent to decide the same under summary proceedings is concerned, it may be stated here that these are the simple cases of non delivery of possession of the units in question by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., within the committed period as envisaged in the allotment letters/agreements, indicated in the chart above, for want of development and construction activities at the project site, which fact has not been disputed by the company, thereby causing financial loss, mental agony and harassment to the complainants. As such, it can very well be said that there is a denial of service to the complainants on the part of the builder/developer -M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., for which they were at liberty to avail remedy by way of filing these consumer complaints. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, Civil Appeal No.6237 of 1990, decided on 5.11.1993,  wherein the Hon’ble Supreme Court held that where the developer is at fault in not delivering possession of an immovable property, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. In this view of the matter, this Commission is competent to decide this issue and as such, these complaints cannot be relegated to the civil court. Objection taken in this regard therefore stands rejected. 
21.           Furthermore, it is also held that the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., is also not entitled to forfeit any amount out of the deposited one, because fault if any is on its part and not on the part of the complainants. At the same time, it is also held that since the complainants have sought refund of the amount paid towards their respective units, which liberty was available to them under the law, as such, plea taken by the builder/developer-M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., to the effect that it is ready to compensate the complainants for the period of delay in  delivery of possession of the units, cannot be accepted and is accordingly rejected.
22.           For the reasons recorded above, all these complaints are partly accepted with costs, in the following manner:-

 

In CC No.207 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

1. To refund the amount of Rs.63,39,972.51 ps. to the complainants, alongwith interest @12% p.a., without deducting any TDS as this interest is granted as compensation, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.63,39,972.51 ps. shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
3. Complaint against opposite party no.5 is dismissed with no order as to cost.           However, it is made clear that opposite party no.5 from which the complainants have raised housing loan for making payment towards their unit in this complaint, shall have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.

 

In CC No.208 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of the unit in question, alongwith interest @12% p.a. without deducting any TDS as this interest is granted as compensation, from the respective  dates of deposits onwards.
2. To refund the amount to the complainants, if any, paid by them to opposite party no.5, towards equated monthly installments, on the loan amount, as it was the liability of opposite parties no.1 to 4, under subvention scheme. 
3. To repay the entire loan amount to opposite party no.5, released by it in favour of the Company, in respect of the unit in question alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.5, opposite parties no.1 to 4 shall be bound to pay the equated monthly installments/Pre-EMI interest to opposite party no.5, alongwith up-to-date interest on the loan account, till realization.
4. To pay compensation for causing mental agony and physical harassment and also litigation expenses, in lumpsum, to the tune of Rs.50,000/- to the complainants.
5. The payment of amounts mentioned at sr.nos.(i), (ii) (if any) and (iv) shall be made to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which the amount mentioned at sr.nos.(i) and (ii) (if any), thereafter shall carry interest @15% p.a., from the date of  default and interest @9% p.a., on the amount mentioned at sr.no. (iv) from the date of filing of this complaint, till realization, besides compliance of other directions given.
6. Complaint against opposite party no.5 is dismissed with no order as to costs, subject to directions aforesaid.

In CC No.209 of 2019, opposite parties no.1 to 4, jointly and severally, are directed as under:-

1. To refund the entire amount, actually paid by the complainant from her own sources/pocket, at the time of booking and thereafter also, towards part price of the unit in question, alongwith interest @12% p.a. without deducting any TDS as this interest is granted as compensation, from the respective  dates of deposits onwards.
2. To refund the amount to the complainant, if any, paid by her  to opposite party no.5, towards equated monthly installments, on the loan amount, as it was the liability of opposite parties no.1 to 4, under subvention scheme. 
3. To repay the entire loan amount to opposite party no.5, released by it in favour of the Company, in respect of the unit in question alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.5, opposite parties no.1 to 4 shall be bound to pay the equated monthly installments/Pre-EMI interest to opposite party no.5, alongwith up-to-date interest on the loan account, till realization.
4. To pay compensation for causing mental agony and physical harassment and also litigation expenses, in lumpsum, to the tune of Rs.50,000/- to the complainant.
5. The payment of amounts mentioned at sr.nos.(i), (ii) (if any) and (iv) shall be made to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which the amount mentioned at sr.nos.(i) and (ii) (if any), thereafter shall carry interest @15% p.a., from the date of  default and interest @9% p.a., on the amount mentioned at sr.no. (iv) from the date of filing of this complaint, till realization, besides compliance of other directions given.
6. Complaint against opposite party no.5 is dismissed with no order as to costs, subject to directions aforesaid.

23.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case files.
24.           The files be consigned to Record Room, after completion.

Pronounced.

05.05.2021

Sd/-

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 

 

Rg.