Chandigarh

DF-II

CC/607/2021

Dr. Pankaj Panwar - Complainant(s)

Versus

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

Adv Saksham Arora & Sateekshan Sood

16 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/607/2021
Date of Institution	:	14/09/2021
Date of Decision	:	16/09/2024

       

                                       

                       

 

 

 

Dr. Pankaj Panwar s/o Shri S.S. Panwar r/o Flat 825 GF, Omaxe Cassia (Near Ratwara Sahib Gurudwara, New Chandigarh 140901 & working as Pt. Scientist (Forestry), ICAR-Indian Institute of Soil Conservation Research Centre, (Care Min. of Agri & Farmers Welfare, Govt. of India, Sector 27-A, Madhya Marg, Chandigarh-160019.

.........Complainant

VERSUS

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, SCO-139-140, Sec-8C, Madhya Marg, Chandigarh- 160008.
2. The Manager, Facility Plus, Flat No.715, Ground Floor, Omaxe Cassia, Phase-III, Village Tira Post Office, New Chandigarh -160014.

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

 

ARGUED BY:
	Sh. Sateekshan Sood, Counsel for complainant (through VC)
	Sh. Arjun Sharma, Counsel for OP-1 (through VC)
	OP-2 ex-parte

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.        The complainant has filed the present consumer complaint alleging that he was attracted by the flashy brochure given by OP-1 and the promises made therein.  Accordingly, he looked around and found a previous purchaser and requested the OP to transfer it in his name. The complainant signed an agreement to sell with previous allottee namely Ms. Nasreen Akhtar on 24.4.2012. OP-1 issued an acceptance letter to assign their rights in respect of Unit 825, Ground Floor, situated at Mullanpur, Chandigarh in favour of complainant vide letter dated 19.10.2012. The allotment letter (Annexure 4) was duly signed and acknowledged by OP-1 on 21.12.2012 wherein it was undertaken that possession of the flat would be handed over in June 2015 as mentioned in clause 23 (b) and further to pay late handing over penalty of ₹10/- per sq. ft. as per clause 23 (h). Complainant made full lump sum payment of ₹47,99,456.67 to the OP being 95% payment of the cost of flat.  Thereafter the complainant regularly visited the site and sent communications to the OP regarding possession and the OP kept on extending the date of possession.  Finally, vide letter dated 9.5.2019 (Annexure 7), OP-1 offered possession of the flat in question and raised demand for full payment. On 21.5.2019 settlement deed (Annexure-8) was signed as per which ₹7,02,098.63 was stated to be paid to the complainant on account of late delivery out of which ₹4,34,210.33 was adjusted and ₹2,67,888/- was committed to be refunded.  Vide letters dated 19.10.2019 and 26.11.2019 (Annexure 9 & 10) complainant asked OP-1 to expedite the completion of the flat and to release pending amount of ₹2,67,888/-. Finally, after a period of 5 years, OP-1 hand over possession to the complainant vide handing over/taking over certificate dated 14.2.2020 (Annexure 11). However, despite sending letter dated 26.11.2020 (Annexure 12), OP failed to pay the pending amount of ₹2,67,888/-. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainant has filed the instant consumer complaint.
2.        In its written version OP-1, inter alia, did not dispute the factual matrix.  However, it is denied that the answering OP had agreed to deliver possession by June 2015 and rather the same was subject to force majeure conditions. It is averred that vide letter dated 2.5.2019 answering OP received the occupation certificate for the unit in question and accordingly vide letter dated 9.5.2019 it offered possession to the complainant. Since certain dispute arose between the parties, complainant settled all the disputes qua the unit in question by executing a settlement deed dated 21.5.2019 under which, as part of its obligation, OP agreed to not only adjust an amount of ₹4,34,210.33, which was due to be paid by the complainant,  but also agreed to pay him ₹2,67,888/- and the complainant had undertook not to claim any right, lien, interest, expense, right of purchase, delayed possession penalty, damages, compensation etc. from the OP or any other person in future and further agreed that he would not drag the OP into any litigation regarding disputes of whatsoever nature which may remain unresolved or arise in future. It is alleged that once the complainant had executed a specific settlement deed with the OP and settled all the disputes qua the unit in question, now it does not lie in his mouth to allege that the OP has delayed the possession.  It is further alleged that the complainant neither raised any protest while taking possession nor at the time of execution of the conveyance deed. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-1 prayed for dismissal of the consumer complaint.
3.        Despite due service, OP-2 did not put in appearance before this Commission and accordingly it was proceeded against ex-parte vide order dated 26.5.2023.
4.        The contesting parties filed their respective affidavits and documents in support of their case.
5.        In replication, complainant controverted the stand of OP-1 and reiterated his own.
6.        We have heard the learned Counsels for the contesting parties and have gone through the documents on record, including written arguments.
7.        It is observed from the record that the simpliciter case of the contesting parties is that the complainant and OP-1 had entered into a settlement deed dated 21.5.2019 (Annexure OP/5) whereby OP-1 agreed to pay penal amount of ₹7,02,098.63 out of which ₹4,34,210.33 was adjusted and ₹2,67,888/- was to be refunded to the complainant.  It is further the admitted case of the parties that OP-1 has not yet refunded the aforesaid amount of ₹2,67,888/-. Though the defence of OP-1 is that it has always been willing to pay the said amount to the complainant but it has failed to justify this Commission why it has not refunded the said amount to him till date.  As such, the act of OP-1 in not paying the aforesaid agreed amount to the complainant, despite entering into settlement deed with him, certainly amounts to deficiency in service and unfair trade practice on its part.
8.        So far as the claim of the complainant for the grant of other reliefs viz. directing the OP to fulfil its commitments as offered in the introductory brochure, pay CAM charges etc. is concerned, once the parties have amicably entered into settlement deed (Annexure OP-5) with each other and settled all their disputes, as mentioned therein, and further the complainant specifically undertook not to claim any other relief with regard to the unit/plot and that he shall not file any kind of litigation with regard to above mentioned unit/plot against OP-1, now it does not lie in the mouth of the complainant to file the present consumer complaint qua the same. Here we are fortified by the judgment passed by the Hon’ble Apex Court in the case of Wg. Cdr. Arifur Rahman Khan & Ors.Vs. DLF Southern Homes Pvt. Ltd. & Ors., IV (2020) CPJ 10 (SC), and the relevant portion of the same is reproduced below :-

“37. However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned Counsel of the appellants, Mr. Prashant Bhushan,that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same.”

In the present case also, there is no iota of evidence led by the complainant that he signed the settlement deed under any coercion or undue influence.  Hence, apart from the failure of OP-1 to refund the aforementioned settled amount, this Commission does not find any deficiency in service or unfair trade practice on its part on any other count. 

9.        In view of the above discussion in para No.7 of this order and admission by OP-1, the present consumer complaint deserves to succeed partly and the same is accordingly partly allowed. OP-1 is directed to refund the amount of ₹2,67,888/- to the complainant alongwith interest @ 6% per annum from the date of settlement deed till the date of its actual realization. 
10.        This order be complied with by OP-1 within 60 days from the date of receipt of its certified copy.
11.        Since no deficiency in service or unfair trade practice has been proved against OP-2, the consumer complaint against it stands dismissed with no order as to costs. 
12.        The pending application(s) if any, stands disposed of accordingly.
13.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced 16/09/2024 hg	[AMRINDER SINGH SIDHU] PRESIDENT
	[SURESH KUMAR SARDANA] MEMBER