Chandigarh

StateCommission

CC/555/2017

Renu Arora - Complainant(s)

Versus

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

Paras Money Goyal Adv.

16 Apr 2018

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	555 of 2017
Date of Institution	:	18.07.2017
Date of Decision	:	16.04.2018

 

Renu Arora wife of Shri Dinesh Gupta, R/o F-15, Panjab University, Sector 14, Chandigarh.

……Complainant

V e r s u s

1. M/s Omaxe Chandigarh Extension Private Limited, through its Managing Direction (Director) having their Registered Office at 111 Milestone, Near Bad Ke Balaji Bus Stand, Jaipur, Ajmer Express Way Jaipur (Rajasthan).
2. M/s Omaxe Chandigarh Extension Private Limited, through their General Manager, having their Regional Office at SCO 139-130, Sector 8-C, Madhya Marg, Chandigarh.

              .... Opposite Parties

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.Gaurav Bhardwaj, Advocate proxy for Sh.Paras Money Goyal, Advocate for the   complainant.

      Sh.Ashim Aggarwal, Advocate for the opposite parties.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Property bearing no.781, measuring 1725 square feet, situated at Ground Floor, was purchased by the complainant from Rashmi Khurana and Vivek Batra, in the project of the opposite parties, named “Cassia”, New Chandigarh, Mullanpur, Punjab, for an amount of Rs.56,65,000/-. She paid an amount of Rs.51,12,800/- to the above said original allottees and balance price was agreed to be paid by the complainant to the opposite parties. It is on record that the said property was originally allotted to Rashmi Khurana and Vivek Batra, vide allotment letter dated 27.03.2012. As per commitment made in the said allotment letter, the opposite parties committed to hand over possession of the said property, within 24 months, with extended period of 6 months i.e. totaling 30 months, from the date of signing of the same. When the complainant purchased the above said property, end date to hand over possession of the property stood expired on 26.09.2014. It is on record that on purchase of the said property, in the manner, referred to above, endorsement, Annexure C-2 qua sale was made in favour of the complainant on 23.12.2015. It is stated by the complainant that she had raised loan to the extent of Rs.43,90,000/- by signing tripartite agreement Annexure C-1.  It is her further case that qua delayed period of handing over possession of the said property, agreed penalty was also not paid by the opposite parties. Possession of the unit was offered in the month of Feb. 2017. After adjudgments, the complainant paid an amount of Rs.3,88,760/- vide demand draft dated 06.02.2017. However, when she went to take possession of the property, in question, it transpired that it was still under construction. Correspondence continued between the parties, and as per information supplied, at the time of arguments, possession of the property was handed over to the complainant on 20.03.2018. By stating as above, and alleging delay in handing over possession of the said property, prayer was made to issue directions to the opposite parties, to pay compensation, by way of interest @18% p.a., on the deposited amount, for the period of said delay. She also sought compensation to the tune of Rs.5 lacs and litigation expenses of Rs.50,000/-.

2.         In the reply filed by the opposite parties, a specific objection was taken that the complainant was guilty of suppressing material facts before this Commission. When she purchased the property, in question, from original allottees namely Rashmi Khurana and Vivek Batra, on 23.12.2015, it was agreed between the parties that period to hand over possession will start from the said date. It was further stated that she has failed to place on record requisite documents, whereby she had undertaken that period of 30 months, would start from the date of purchase of property by her i.e. from 23.12.2015 and not from the date when it was allotted to the original allottees in the year 2012. It was averred that the complaint was premature and further for concealment of valuable facts, deliberately, this complaint is liable to be dismissed. 
3.         To the reply filed, rejoinder was placed on record by the complainant. It was nowhere stated that at the time when endorsement was signed, it was got signed by her, under duress. The documents placed on record by the opposite parties, alongwith written statement were not objected by the complainant. Rather it was admitted. It was only said that she had stepped into the shoes of original allottees, and since there is a delay in handing over possession of the property, in question, as such, she is entitled to compensation, as sought for by her, by way of filing this complaint.
4.         The parties led evidence in support of their case.
5.         Counsel for the parties raised arguments, in tune of the facts narrated above.
6.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully, and are of the considered opinion that this complaint deserves dismissal. It is not in dispute that the property, in question, was purchased by the complainant, in resale, from Rashmi Khurana and Vivek Batra. The said property, in question, was allotted in favour of Rashmi Khurana and Vivek Batra, vide allotment letter dated 27.03.2012. The complainant has placed on record, first page of the said allotment letter, alongwith the complaint filed by her. However, subsequent thereto, complete copy of allotment letter was placed on record, alongwith rejoinder only. It is on record that the property was purchased by the complainant from original allottees and endorsement in her favour was made on 23.12.2015. When signing that endorsement, she also signed one affidavit/undertaking dated 17.12.2015 Annexure OP-3, stating therein that time to hand over possession of the said property would start from the date of endorsement. Relevant clause of the said undertaking reads thus:-

“That I/we hereby clearly agree and understand that the development/construction period of the said Unit as stated in the Allotment Letter/Agreement shall be reckoned with effect from the date of endorsement of allotment right in my/our favour and I/we shall not claim for compensation for any delay in offer of possession of the said Unit by the Company”

       

7.         It is acknowledged that period to hand over possession of the property will start from the date of endorsement of allotment rights in her favour, which is done on 23.12.2015. It is also on record that, in the first instance, allotment letter in favour of  original allottees, was issued on 27.03.2012 and as per stipulations made therein, a fixed period to hand over possession of constructed unit already stood expired on 26.09.2014 i.e. much before the time, when the said property was purchased by the complainant. It appears that under above circumstances, she agreed to extend further, the period to hand over possession of the said property. Possession of the property in question already stood delivered by 20.03.2018. This complaint was filed in the second week of July 2017. At that time, as per terms and conditions agreed by the complainant, the opposite parties still have time to deliver possession of the property, which infact already stood delivered. As such, there was no cause of action with the complainant to file this complaint.
8.         Furthermore, there is a clear suppression of material information from this Commission, by the complainant. When getting endorsement made, in her favour, on 17.12.2015, she signed an undertaking in the shape of an affidavit, wherein, she agreed that fixed period to hand over possession of the constructed unit will commence from the date of making endorsement of sale in her favour, which was actually made on 23.12.2015. The said fact was not mentioned in the complaint and further copy of the said undertaking/affidavit was also not placed on record. When rejoinder was filed to the written statement the said fact was not controverted. It was nowhere stated in the said undertaking, that the same was got signed by her, under duress or under some misconception. It was only said that as she had purchased the said property from the original allottees, she stepped into their shoes and all rights under allotment letter will accrue in her favour. We are of the considered opinion that a person who suppressed material facts from a Court/Commission, is not entitled to any relief. This was so said by the Hon’ble Supreme Court of India in the case titled as Kishore Samrite Vs. State of U.P. and Ors. (2013) 2 SCC 39, relevant part of which reads thus:-

“No litigant can play ‘hide and seek’ with the courts or adopt ‘pick and choose’. True facts ought to be disclosed as the Court knows law, but not facts. One, who does not come with candid facts and clean breast cannot hold a writ of the court with soiled hands. Suppression or concealment of material facts is impermissible to a litigant or even as a technique of advocacy”

9.         For the reasons recorded above, this complaint is dismissed with no order as to costs.
10.         Certified Copies of this order be sent to the parties, free of charge.
11.         The file be consigned to Record Room, after completion.

 

Pronounced.

16.04.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 Rg