Chandigarh

DF-II

CC/153/2021

Dr. Sunder Chainta - Complainant(s)

Versus

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

Ashish Bansal adv

23 Aug 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

 

Consumer Complaint  No	:	153 of 2021
Date  of  Institution	:	04.03.2021
Date   of   Decision	:	23.08.2022

 

 

 

 

1]  Dr.Sunder Chainta, resident of Chainta Cottage, Aira Home, Near Happy Child School, Shimla

2]  Dr.Dimple Chainta wife of Dr.Sunder Chainta, resident of Chainta Cottage, Aira Home, Near Happy Child School, Shimla

             …..Complainants

Versus

1]  M/s Omaxe Chandigarh Extension Developers Private Limited, Zonal Office at India Trade Tower, 1^st floor, Baddi Kurali Road, New Chandigarh Mullanpur, Distt. SAS Nagar, Punjab 140901

2]  Managing Director/Directors of M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Corporate Office SCO 139-140, Ist Floor, Sector 8-C, Chandigarh.

3]  Axis Bank Ltd., through its authorized officer, SCB-5, First Floor, Chhoti Barandari near HDFC Bank, Patiala

     ….. Opposite Parties 

 

BEFORE:  SMT.PRITI MALHOTRA    PRESIDING MEMBER

                                SH.B.M.SHARMA                    MEMBER                         

 

 

Argued by :-  Sh.Rashika Bansal, Adv. for Complainant.

   Sh.Arjun Sharma, Adv. for OPs No.1 & 2.

   Sh.Gaurav Gupta, Adv. for OP No.3.

 

 

PER PRITI MALHOTRA, PRESIDING MEMBER

 

         Concisely put, the complainants, in response to an advertisement of OP Company, approached them and booked one Flat No.TLC/CASPEAN-B/SIXTEENTH/1602, measuring 1885 sq. ft. in the residential project of OP Company namely ‘THE LAKE’ as a part of ‘Omaxe New Chandigarh’, situated at New Chandigarh, District SAS Nagar, Punjab and paid initial amount of Rs.5,00,00/- on 15.6.2015 (Ann.C-1) towards booking against the tentative cost of said apartment as Rs.95,17,038/-.  Thereafter, the complainants made payment of Rs.3,17,460/- on 10.7.2015, Rs.1,68,015/- on 28.9.2015, Rs.5,40,000/- on 9.10.2015, Rs.28,735/- on 16.4.2016, Rs.10,00,000/- on 11.8.2017 and Rs.96,149/- on 28.11.2018, apart from executing a Tripartitie Agreement on 2.6.2018 between complainants, OP Company and Axis Bank under which a loan of Rs.60,89,344/- was sanctioned to complainants and the same was paid to OP as a part of payment (Ann.C-2 to c-4).  The OP Company also issued an allotment letter dated 28.9.2015 to the complainant with regard to the allotment of flat in question.  It is submitted that the complainants have deposited the amount from time to time as and when demanded by OPs against proper receipt and as such deposited a total sum of Rs.87,37,092/- including TDS and service tax with OP Company which also includes Rs.2 lakh for covered parking, Rs.One Lakh for power backup, Rs.1,50,000/- as club membership charges and Rs.1,13,100/- towards electrical and fire equipment cost although the project is not completed but still the OP Company received power backup charges and other charges.  It is also submitted that the complainant have deposited more than 80% of entire sale price of the apartment including other charges with OP.  It is pleaded that as per allotment letter of Sept., 2015 as well as assurance of the OP Company, the physical possession of the flat was to be handed over on or before Sept., 2018 or at the most by 31.3.2019 including the extension period i.e. within 42 months. However, the OP Company failed to complete the project and deliver the physical possession of the unit even much after the agreed period i.e. upto 31.3.2019.  It is stated that the complainants visited the office of OP Company may times to enquire about the completion of project and delivery of possession of the unit but they always postponed the matter on one pretext and other.  It is also stated that till the filing of the present complaint, the OP Company failed to deliver the physical possession of the unit in question despite receipt of more that 80% amount against its cost.  Ultimately, the complainants sent legal notice to OP Company on 1.12.2020 seeking refund of entire amount along with interest thereon but the same was not been replied by them (Ann.C-5 to C-7). Hence, this complaint has been filed alleging the said act & conduct of the OPs as gross deficiency in service and unfair trade practice.

 

2]       The OPs No.1 & 2/Omaxe Company have filed joint reply and while admitting the factual matrix of the case, stated that the complainants were allotted the Flat in question vide allotment letter dated 28.9.2015 for a total sale price of Rs.95,17,039/- excluding cost towards stamp duty, registration charges, individual electricity meter, external electrification, water & sewerage charges, increase in any external & internal development charges and any other cost that was not included in the price and had to be paid by buyer(s) on demand at the time of offer of possession.  It is submitted that as per Allotment Letter, it was agreed between the parties that subject to force majeure conditions and subject to timely payment by the allottee or subject to any other reasons beyond the control of OP Company, the company proposed to complete the development/construction of the unit in question within 36 months from the date of signing of the allotment letter or approval of the building plans, whichever is later, and within such further extended grace period of 6 months meaning thereby in total 42 months. It is also submitted that the said period of 42 months was to be computed by excluding Sundays, Bank Holidays, enforced Govt. Holidays and days of cessation of work at site etc. and thus the stipulated date of possession as per Allotment Letter would be April 12, 2020 and during that time the entire country was going through the pandemic of Covid 19 and a lockdown was imposed by the Govt.  It is further submitted that due to Covid-19 & lockdown the real estate sector has been majorly hit and the companies faced hardship in completing their projects.  It is pleaded that the complainants have not paid the installments on time that had fallen due, resultantly, the OPs had to suffer losses.  It is also pleaded that even in the Allotment Letter or otherwise, the OPs never assured the complainants that the possession of the unit in question will be delivered by 31.3.2019 and the period of 42 months had to be computed by excluding all holidays.  It is denied that the complainants have deposited an amount of Rs.87,37,092/- out of the total sale consideration and infact the total amount paid by the complainants is Rs.80,76,111.67/- excluding service taxes.  It is stated that the development work in the project is going on in full swing and the OPs are developing this as a world class project and the delay, if any, that has been caused in delivering some of the units is attributable to many factors such as delay in payments, as majorly allottees have opted for construction linked plan and when there is a delay in payments, it affect the pace of the entire project. Denying other allegations, the OPs No.1 & 2 have prayed for dismissal of complaint.

 

3]       The OP No.3- Axis Bank has filed short reply stating that no relief against it has been sought in the present complaint.  It is stated that answering OP has nothing to do in respect of the completion of construction of flat of complainants.  It is submitted that the complainants have booked the flat with OP No.1 and it is for that Company to construct and deliver the flat to the complainants.  It is also submitted that the complainants have availed housing loan from answering OP Bank and the loan account statement is attached as Ann.OP-3/2 showing the financed & disbursed loan amount of Rs.60,86,748/- from the loan account of complainants.  It is pleaded that in case the complaint is allowed, then in such case, first charge over the refund amount may be of answering OP bank equivalent to outstanding loan amount.  Pleading no deficiency in service, the OP No.3 Bank prayed for dismissal of the complaint qua it. 

4]       Parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the parties and have gone through entire documents on record including written arguments.

6]       Considering all the documents on record, pleadings of the parties and evidence, we are of the opinion that the OP-Builder remained grossly deficient in their services and also indulged into unfair trade practice by not delivering the possession of the allotted flat to the complainants despite receipt of more than 90% of the amount of the flat. The OP Builder/Company failed to fulfil its contractual obligation by offering possession of the allotted flat/unit to the complainants, having basic amenities, within the time stipulated in the agreement or within a reasonable time, so the complainant/purchaser cannot be compelled to kept on waiting indefinitely for possession that too even after passing of about 7 years since the year of booking i.e. 2015 till date, when the case has been reserved for orders. 

7]       The complainants who have paid their hard earned money to have a house, are not supposed to wait indefinitely for possession. The complainants are not obliged to accept any other offer of OPs No.1 & 2 when they failed to deliver the allotted flat. The request of the complainants for refund of the amount paid with interest has also not been acceded to by the OPs No.1 & 2.  The OPs No.1 & 2 have accepted the money, but failed to honour the commitment/promise made with complainant, so they are liable to refund the amount alongwith interest from the respective dates of deposit till payment.

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: - Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.

8]       Therefore, the act of the Opposite Parties No.1 & 2 in not delivering the possession of the unit in question having all basic amenities as well as having Completion from the concerned authorities even after 7 years long period, certainly proves deficiency in service and their indulgence in unfair trade practice which not only caused huge financial loss to the complainants, but also caused them harassment & mental agony. Thus, the complainants are entitled to seek the refund of the amount paid by them along with compensation.

9]       Taking into account the above observations, we are of the considered view that the Opposite Parties No.1 & 2 are found deficient in rendering proper service to the complainants and having indulged in unfair trade practice. Hence, the present complaint is allowed with direction to OPs No.1 & 2 to refund an amount of Rs.85,69,092/- (as proved on record vide Anns.C-1, C-2 & OP-3/2) along with interest @10% p.a. from the respective dates of deposit/disbursement till its payment. The OPs No.1 & 2 are also directed to pay an amount of Rs.One lakh to the each complainants towards compensation for causing them immense mental agony and harassment, along with litigation cost of Rs.25,000/-.

         The above said order shall be complied with by the Opposite Parties No.1 & 2 jointly & severally within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.50,000/-, apart from the above awarded amount.

10]      The complaint qua OP No.3/Axis Bank stands dismissed.

        The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced                                                             

23^rd August, 2022                                                                                                                             Sd/-

                                      (PRITI MALHOTRA)

PRESIDING MEMBER

 

 

Sd/-

 (B.M.SHARMA)

MEMBER