Chandigarh

StateCommission

CC/68/2022

NARENDER KAUR - Complainant(s)

Versus

M/S OMAXE CHANDIGARH EXTENSION DEVELOPERS PRIVATE LIMITED - Opp.Party(s)

VIJIYESH MALHOTRA

17 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint No.	:	68 of 2022
Date of Institution	:	16.09.2022
Date of Decision	:	17.04.2023

 

Narender Kaur W/o Chaman Lal R/o House No.5471/2, Modern Housing Complex, Manimajra, U.T., Chandigarh-160101 having Aadhaar Card No.345894918728

….Complainant

Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Madhya Marg Extn. Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901, through its Managing Director/Authorized Signatory.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having its Corporate Identification no. CINU0500RJ2006PTC022398, Corporate Office at SCO 139/140, First Floor, Madhya Marg, Sector-8C, Chandigarh-160008 through its Managing Director/Authorized Signatory.
3. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Registered Office at 10 LSC, Kalkaji, New Delhi-110019, through its Managing Director/Authorized Signatory.
4. Kamal Kishore Gupta, Director, R/o D-88, Gali No. 10, Madhu Vihar, Delhi-110092 and having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

…..Opposite parties

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR.RAJESH K. ARYA, MEMBER

 

Present:-              Sh.Vijiyesh Malhotra,  Advocate for the complainant.  

                             Sh.Arjun Sharma, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This complaint has been filed by the complainant, seeking possession of unit bearing no.TLC/VICTORIA-A/TWELFTH-A12A04, measuring 1530 square feet, purchased by her from the opposite parties, in their project named - “The Lake”, New Chandigarh, Mullanpur, Punjab,   total sale consideration whereof was fixed at Rs.64,27,490/-. Alongwith possession, relief of payment of delayed compensation for the  period of delay, compensation for mental agony etc. has also been sought by the complainant. It has been stated that the opposite parties have failed to deliver possession of the said unit by 12.03.2019 i.e. within a period of 42 months plus 6 months grace period total 48 months, as envisaged in clause 40 (a) of the allotment letter (in short the agreement) dated 13.03.2015, Annexure C-1, despite the fact that an amount of Rs.53,01,574/- stood paid by the complainant. It has been stated that still the opposite parties are not serious in completing the development and construction work at the project site i.e. flooring, plastering, plumbing, electrical,  fire fighting work etc.  and on the other hand, are  interested only in raising demands of the remaining sale consideration. Lot of emails/letters were written to the opposite parties in the matter but to no avail. Hence this complaint.

2.           The opposite parties in their joint written reply, while admitting factual matrix of the case with regard to sale of the unit in question to the complainant in the project in question; payments made by her as mentioned in the complaint; execution of agreement etc. took various objections/pleas as under:-
   1. that this complaint has become infructuous because  occupation certificate dated 15.10.2022, Annexure OP/2 in respect of the unit in question has been received by the opposite parties and possession thereof stood offered to the complainant vide letter dated 09.11.2022, Annexure OP/3;
   2. that the period of 48 months of delivery of possession as mentioned in the agreement is excluding of Saturdays, Sundays and Govt. Holidays;
   3. that as per clause 40(a) of the agreement, it was clearly agreed to between the parties that the period of delivery of possession was subject to force majeure circumstances;
   4. that delay in offering possession of the unit took place because of the force majeure circumstances having been faced by the opposite parties due to COVID-19, as a result whereof the Government of India issued various advisories, giving relief to the builders by extending the dates for completion of the projects;
   5. that because the complainant was defaulter in making payment, as such, she is not entitled to any compensation;
   6. that even otherwise, payment of compensation, if any, for delay in offering possession is to the extent of Rs.5/- per sq. feet, of built-up are of the unit, as per clause 40 (g) of the agreement
   7. that the parties are bound by terms and conditions of the agreement and the Courts have no power to amend the same
   8. that the complainant being investor did not fall within the definition of consumer;
   9. that in the face of existence of arbitration clause in the agreement, this Commission is having no jurisdiction to decide this complaint and only an arbitrator can adjudicate it;
   10. that the complaint is bad for non-joinder of Managing Director as necessary party because there is no such position in the company;
   11. that the Director/OP No.4 cannot be held personally liable in the matter;

 

3.           While denying the rest of the averments made in the complaint, the opposite parties prayed for dismissal of the complaint with exemplary costs.
4.           In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in written reply of the opposite parties.
5.           The parties led evidence, in support of their case and also filed written arguments.
6.           We have heard the Counsel for the parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
7.           First coming to the objection taken by the opposite parties to the effect that the complainant did not fall within the definition of ‘consumer’, it is significant to mention here that the opposite parties have failed to place on record any cogent and convincing evidence in support of this objection. To prove the objection that the unit in question has been purchased by the complainant to indulge in ‘purchase and sale of units’ i.e. for earning profits, the onus lays upon the opposite  but they failed to do so. Thus, because in the present case, the opposite parties failed to discharge their  onus, especially, when still the complainant is seeking possession of her unit, hence we hold that she falls under the definition of consumer as defined under the Act. Our this view of supported by the observations made by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. As such, objection taken in this regard stands rejected.
8.           Now coming to the objection taken with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in 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/contracts between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
9.           It is not in dispute that an amount of Rs.53,01,574/- stood paid by the complainant to the opposite parties towards purchase of the unit in question, possession whereof was to be delivered by 12.03.2019. It is also an undisputed fact that possession of the unit in question was not offered by 12.03.2019. It is significant to mention here that it was only during pendency of this complaint that the counsel for the parties apprised this Commission that possession of the unit in question stood delivered to the complainant on 23.03.2023 on receipt of Rs.11 lacs. However, to wriggle out of the situation of delay in delivery of possession of the unit in question to the complainant, the opposite parties have taken shelter under the force majeure circumstances as under:-
   1. that due to COVID-19 lockdown was announced on  15.03.2020 in the country; and
   2. that the Government of India issued various advisories, giving relief to the builders by  extending the dates for completion of the projects;

 

10.           Under above  circumstances, the moot question which falls for consideration  is, as to whether, the opposite parties can claim any immunity for delay in offering possession of the unit in question, on the grounds mentioned above. It may be stated here that admittedly lockdown in the country was announced on 25.03.2020, which was lifted in April 2020, whereas, on the other hand, possession of the unit in question was to be delivered by 12.03.2019 i.e. around one year before execution of lockdown in the country. Thus, in our considered opinion, if the opposite parties have delayed the construction work beyond the committed date of delivery of possession (12.03.2019), no blanket immunity can be availed by them of any subsequent event i.e. COVID -19 followed by office memorandums etc. by the Government extending the  completion dates of the project due to outbreak of COVID-19. Thus, in our considered opinion, by not offering and delivering possession of the unit in question by the promised date and on the other hand delivering the same only on 23.03.2023 and that too during pendency this complaint, the opposite parties are deficient in providing service and guilty of adoption of unfair trade  practice.  
11.            The opposite parties have also tried to wriggle out of the situation by stating that possession of the unit in question stood offered to the complainant vide offer of possession letter dated 09.11.2022, Annexure OP/3 alongwith occupation certificate dated 15.10.2022, Annexure OP/2 but the complainant failed to take over the same. On the other hand, the complainant in her rejoinder and also her counsel during the course of arguments has vehemently contended that no such offer of possession letter was ever delivered to the complainant. We have perused the said  offer of possession letter dated 09.11.2022, Annexure OP/3 and found that the proof of delivery thereof i.e. its mode, receipt of postal, by hand etc. has not been placed on record. In our considered opinion, once the complainant disputed receipt of the offer of possession letter dated 09.11.2022, Annexure OP/3, the onus was upon the opposite parties to prove the delivery thereof, upon her, but they miserably failed to do so. Not only as above, number of opportunities were available with the opposite parties to prove delivery of the said offer of possession letter dated 09.11.2022, Annexure OP/3 upon the complainant, especially, when specific objection regarding non-receipt thereof was taken by her in her rejoinder but they failed to do so. Under these circumstances, in the absence of any evidence to prove the delivery of offer of possession letter dated 09.11.2022, Annexure OP/3, upon the complainant, especially, when she has denied receipt of the same, it is held that the said offer of possession letter was never delivered to her by the opposite parties. As such, no benefit can be given to the opposite parties in that regard. It is therefore held that offer of possession was never made to the complainant till the date of filing of this complaint. 
12.           Now, we will like to decide as to what amount of compensation should be granted to the complainant, for the period of delay in delivery of possession, starting from 12.03.2019. On account of delay in actual delivery of possession by 12.03.2019, the complainant suffered mental agony, hardships and financial loss. Not even a single convincing evidence has been placed on  record  by the opposite parties, as to why  delay took place in offering actual physical possession of the unit in question to the complainant. As stated above, it was only during pendency of this complaint that possession of the unit in question stood delivered to the complainant on 23.03.2023 on receipt of Rs.11 lacs. Thus, by not offering  and delivering actual physical possession of the unit in question to the complainant for such long years, the complainant has definitely gone through tremendous of mental agony, harassment besides financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

 

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In Basanta Kumar Nandy & 14 Ors.  Versus Dreamz Infra India Ltd. (Formerly Known As Dreamz Infra India Pvt. Ltd.), Consumer Case No. 2749 OF 2017, decided on 27.06.2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, since admittedly possession of the unit in question stood delivered to the complainant, during pendency of this complaint i.e. on 23.03.2023, as such, in our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by her, from the due date of possession onwards till delivery of possession thereof i.e. till 23.03.2023, that will meet the ends of justice.

13.           At the time of arguments, it was also argued by counsel for the opposite parties that, as per terms and conditions of the Allotment Letter/Agreement, when computing the period of delivery of possession of the unit, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. We feel that the contention raised is liable to be rejected. It may be stated here that in Clause 40 (a) of the allotment letter, it is stated that possession of the unit will be delivered within 42 months, from the date of signing of allotment letter by the allottee, with six months' extension period. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. It is significant to mention here that similar issue has been dealt with by this Commission in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and many other cases, thereafter and it was specifically held that when there is no explanation of getting extension of 6 months' period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. In view of above, the plea of the opposite parties in this regard stands rejected.
14.           It is necessary to add here that the opposite parties also cannot wriggle out of their liability, by saying that delay took place on account of the reason that the complainant defaulted in making remaining payment; in view of 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 units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had 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.  In the instant case also, if the complainant after making payment of substantial amount, referred to above, did not make remaining payment when she came to know about huge delay in completing the project, as possession of the unit was not offered to her even by the committed date of even thereafter (before filing of this complaint), as such, she was right in not making further payments/holding some amount(s).  Objection taken in this regard by the opposite parties also stands rejected.
15.           As far as objection taken to the effect that opposite party no.4/Director has been wrongly impleaded in his personal capacity, it may be stated here that the Officers like  Directors, in our considered opinion, are holding such important positions in the Company (a juristic person), where they are directly involved with the decision-making process and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. As such, objection taken in this regard stands rejected. At the same, it is also held that if there is no Managing Director in the company, the Director/OP No.4 or Authorized Signatory of the company, directly involved with the decision-making process, will be severally liable alongwith the Company, for all the acts done and as such the mere fact that there is no Managing Director in the company cannot be made a ground to dismiss this complaint.
16.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-
    1. To pay to the complainant, interest @9% p.a. on the entire amount deposited by her, starting from due date of possession i.e. from 12.03.2019  till 22.03.2023 (one day before delivery of possession), within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
    2. To pay to the complainant, compensation to the tune of Rs.75,000/-  for causing her  mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

 

17.           Certified copies of this order be sent to the parties, free of charge.
18.           The file be consigned to Record Room, after completion.

 

Pronounced.

17.04.2023

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.