Chandigarh

StateCommission

CC/59/2020

Baljeet Singh - Complainant(s)

Versus

m/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Ankur Gupta Adv.

18 Jan 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/59/2020
Date  of  Institution	:	28/02/2020
Date   of   Decision	:	18/01/2022

 

 

 

 

 

1.    Baljeet Singh S/o Sh. Amarjit Singh, R/o B-7, Lane 4, Sector 1, New Shimla, Himachal Pradesh.

 

2.    Jyotsana Negi D/o Sh. Amarjit Singh, R/o B-7, Lane 4, Sector 1, New Shimla, Himachal Pradesh.

 

…. Complainants

 

V E R S U S

 

 

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO139-140, Sector 8-C, Madhya Marg, Chandigarh – 160008, through its Managing Director.

 

…… Opposite Party

 

 

BEFORE: JUSTICE RAJ SHEKHAR ATTRI   PRESIDENT

                MRS. PADMA PANDEY                   MEMBER

                MR. RAJESH K. ARYA                   MEMBER

 

PRESENT	:	Sh. Ankur Gupta, Advocate for Complainants.
	:	Sh. Gazi Mohd. Ummair, Advocate for Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

 

 

                In brief, the facts necessary for the disposal of the instant Consumer Complaint are, the Complainants booked an independent floor measuring 1875 sq. ft. in the project of the Opposite Party namely Celestia Royal Chandigarh, situated at New Chandigarh, Mullanpur. The booking request of the Complainants was confirmed by the Opposite Party vide its letter dated 11.04.2016 and Complainants were allotted Floor No. CRC/449VI/ Second/3 and the Complainants were given Customer ID bearing No.CRC/319. In pursuance of the said confirmation, an allotment letter dated 28.07.2016 was issued by the Opposite Party (Annexure C-2) and a formal agreement between the parties was signed on 28.07.2016 (Annexure C-3). The total cost of the residential floor was Rs.69,97,725/-, possession whereof was to be delivered on or before 27.07.2018 i.e. within a period of 24 months from the date of execution of allotment letter/agreement dated 28.07.2016 or within extended period of 6 months i.e. 27.01.2019, as envisaged under clause 41 (a) thereof, yet, Opposite Party failed to do so. The Complainants had already made a payment of Rs.48,30,774/- as per the specified Schedule (Receipts Annexure C-4 colly), however, the Opposite Party dilly-dallied the deliverance of the possession citing frivolous reasons, forcing the Complainants to stay in the rented accommodation by paying a hefty sum as monthly rent. Under these circumstances, the Complainants wrote a letter dated 25.01.2020 to the Opposite Party to revert with the actual date of possession of the unit (Annexure C-5), but the same was never replied. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Party, the Complainants have filed the instant Consumer Complaint.

 

2.         Notice of the complaint was sent to Opposite Party seeking its version of the case. 

 

3.         Opposite Party contested the Consumer Complaint and filed its written statement, inter alia, admitting the basic facts of the case. It has been pleaded that the Complainants are not consumers within the meaning of Section 2(d) of the Consumer Protection Act, as they purchased the unit for investment purposes to earn high profits; that this Commission does not have the territorial jurisdiction to entertain the present Complaint.  While admitting the receipt of Rs.45,66,503/- Opposite Party has submitted that the delay in handing over the possession was due to the Force Majeure factors, coupled with the fact that COVID-19 Pandemic had affected the construction activities across the country. It has been asserted that the construction is in full swing and possession would be offered soon. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

 

4.         Parties led evidence by way of affidavits and documents.

 

5.         We have heard the learned counsel for the parties and gone through the record of the case. After scanning of record, including written arguments, our findings are as under:-

 

6.         The first and foremost the Opposite Party has taken a plea that the Government of India realizing the difficulties being faced by the real estate sector issued an advisory dated 13.05.2020, for extension of registration of real estate projects due to ‘Force Majeure’ under the provisions of Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as the ‘2016 Act’). As per the aforementioned advisory, the Ministry of Housing & Urban Affairs, Government of India, inter-alia, directed the Real Estate Regulatory Authorities of each States/Union Territories to issue suitable orders/directions to extend the registration and completion date or revised completion date or extended completion date automatically by 6 months due to the outbreak of COVID-19 (Corona Virus), which is a calamity caused by nature and is adversely affecting regular development of real estate projects by invoking force majeure clause as defined under Section 6 of the 2016 Act. In pursuance to the aforementioned advisory, the RERA Punjab vide its order dated 13.05.2020 extended the completion date by further 6 months for all registered projects where completion date or revised completion date or extended completion date was on or after 15.03.2020, and, as such, the Company has time till 31.01.2021 to complete the construction of the Unit in question. Since, the project in question is registered with RERA Punjab vide Project Registration No. PBRERA-SAS80-PR0033 and since, the original registration was valid till 31.07.2020, the same stands extended by further 6 months and now the Opposite Party has another 6 months over and above 30 months mentioned in the allotment letter to deliver the possession. However, this Commission does not find much substance in the aforesaid plea for the reason that according to the formal agreement signed between the parties on 28.07.2016 the possession of the unit was to be delivered on or before 27.07.2018 i.e. within a period of 24 months from the date of execution of allotment letter/ agreement dated 28.07.2016 or within extended period of six months i.e. 27.01.2019 as envisaged under Clause 41(a) of the said Agreement. Concededly, COVID-19 Pandemic had virtually crept into the world only by February, 2020 which is beyond the expected date of handing over of possession of the unit i.e. 27.01.2019. Thus, it is legitimately proved that the Opposite Party is definitely deficient in rendering proper services to the Complainants as it failed to hand over the possession of the unit on the expected date even after receiving a huge amount from the Complainants.

 

7.         The next objection taken by the Opposite Party that the Complainants are not consumers as defined under Section 2(d) of the Consumer Protection Act, 1986, as they have purchased the unit in question with the intention to resell it and earn profit.  It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of units’ 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. In this view of the matter, objection taken by the opposite parties, stands rejected. 

 

8.         Now coming to the objection 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 case, per material available on record, the registered office of the Opposite Party was situated in Chandigarh at the time of making initial booking and payments. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken, thus, stands rejected.

 

9.         Admittedly, the total cost of the residential floor was Rs.69,97,725/-, possession whereof was to be delivered at the maximum on 29.01.2019; whereas, the Opposite Party failed to do so and is taking flimsy pleas on account of the COVID-19 Pandemic, the Complainants being not consumers, lack of territorial jurisdiction etc. which is totally an unfair trade practice on the part of the Opposite Party. The Opposite Party, in its written statement, has itself admitted that Opposite Party has already been granted occupancy/completion certificate for Unit bearing No. 449L12 to 449 L13 in the project in question. If that is so, the Opposite Party now should not have any difficulty in handing over the possession of the unit to the Complainants. Since the Opposite Party was deficient in providing service and adopted unfair trade practice, in that regard, thereby causing lot of mental agony, harassment and financial loss to the complainants, for which they are needed to be suitably compensated.

 

10.         For the reasons recorded above, the present complaint of the Complainants deserves to succeed against the Opposite Party, and the same is partly allowed. The Opposite Party is directed as under:-

 

1.         To hand over the physical possession of the unit allotted in favour of the Complainants, complete in all respects as per the terms & conditions of the agreement, after receiving the balance amount from the Complainants against the cost of the unit, within a period of 30 days from the date of receipt of a certified copy of this order.

 

2. To execute and get the sale deed registered in respect of the unit in question immediately after handing over the physical possession of the unit to the Complainants.

 

3. To pay compensation and damages to the Complainants for causing mental agony and harassment by way of interest @9% p.a. on the amount of Rs.48,30,774/- (deposited by Complainants towards the cost of the unit) from the date of deemed possession i.e. 27.01.2019 upto the actual date of handing over of the possession.
4. To pay a sum of Rs.20,000/- to the complainants as litigation expenses, 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.20,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

11.         Certified copies of this order be sent to the parties, free of charge.

 

12.         The file be consigned to Record Room, after completion.

Pronounced

18^th January, 2022                                                           

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

                                                        (PADMA PANDEY)

MEMBER

 

 

 

                                                        (RAJESH K. ARYA)

MEMBER

“Dutt”