Chandigarh

StateCommission

CC/318/2017

Gorav Gupta - Complainant(s)

Versus

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

Ranbir Singh Rawat, Adv.

10 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	331 of 2017
Date of Institution	:	18.04.2017
Date of Decision	:	10-Aug-17

Tejpal Kaur wife of R.S. Dhindsa, R/o H.No.99, Sector 9, Ambala (Haryana).

……Complainant

V e r s u s

Omaxe Chandigarh Extension Developers Private Limited, SCO No.143-144, Sector 8-C, Chandigarh, through its Managing Director.

.... Opposite Party

Argued by: Sh.G.S. Virk, Brother of the complainant.

Sh.Munish Gupta, Advocate for the opposite party.

======================================================

Complaint case No.	:	318 of 2017
Date of Institution	:	12.04.2017
Date of Decision	:	10-Aug-17

Gorav Gupta son of Sh.S.K. Gupta.
Sangeeta Gupta wife of Sh.Gorav Gupta.

Both R/o House No.2474, Sector 37-C, Chandigarh.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, Regional Office SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh.

2^nd Address:- Omaxe City, 111^th Mile Stone Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Express Way Jaipur, 302026, through its Managing Director.

3^rd Address:- M/s Omaxe Chandigarh 10^th LSC, Kalkaji, New Delhi 110019, through its Managing Director.

.... Opposite Party

Argued by: Sh.Raj Kumar Sahota, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the opposite party.

Complaints under Section 17 of the Consumer Protection Act, 1986.

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

MR. DEV RAJ, MEMBER.

MRS. PADMA PANDEY, MEMBER

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

By this order, we propose to dispose of aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. At the time of arguments, on 04.08.2017, it was agreed by the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, both the complaints can be disposed of, by passing a consolidated order.

To dictate order, facts are being taken from consumer complaint bearing no.331 of 2017, titled as Tejpal Kaur Vs. Omaxe Chandigarh Extension Developers (P) Ltd. The complainant is a resident of Ambala. To settle near to Chandigarh, she purchased a built-up flat, from the opposite party, in a project, launched by it, namely “Omaxe Cassia” New Mullanpur, Punjab. It was represented to her that the project is fully approved by the Competent Authorities. Further, the unit was booked in the office of the opposite party, situated in SCO No.139-140, Sector 8, Manimajra, Chandigarh. The unit was an independent floor, constructed on the area measuring 300 square yards, having built-up area of 1725 square feet. Total sale price of the unit was fixed at Rs.46.25 lacs. First payment, in the sum of Rs.8 lacs was paid by her on 11.03.2011. Thereafter, from time to time, an amount of Rs.44,75,066/- was paid by her, in the following manner:-

Sr.No.	Receipt No.	Date	Amount
	484119	11.03.2011	800000.00
	530961	24.08.2011	617381.00
	687600	22.02.2012	330000.00
	687605	22.02.2012	519185.00
	687607	22.02.2012	2208500.00

Receipts have been placed on record as Annexure C-3 colly. It is specific case of the complainant that vide letter dated 23.12.2011 Annexure C-2, provisional allotment of the unit was made to her. Allotment Letter/Agreement (in short the Agreement) was sent for signing on 09.02.2012. It was stated that Agreement was got signed after a gap of about 10 months of making first payment.

As per Clause 23 (b) of the said Allotment Letter/Agreement, the opposite party undertook to complete the construction work within 30 months (24 months (+) 06 months grace period) from the date of signing of allotment letter dated 09.02.2012 i.e. upto 08.08.2014, subject to force majeure conditions. The said period was to be computed, after excluding Saturdays, Sundays etc. Relevant Clause 23 (b) reads thus:-

“The Company shall put its best efforts to complete the development/construction of the Unit within 24 (Twenty Four) months from the date of signing of this Allotment Letter by the Allottee(s) or within an extended period of 6 (six) months, however construction within aforesaid 30 months is subject to force majeure conditions (as mentioned in Clause (c) & (d) hereunder) and subject to all Unit Allottee(s) making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Unit to the Allottee(s). The aforesaid period of development shall be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body.”

It was further provided in Clause 23 (h) that in case the opposite party failed to deliver possession of the unit, in question, it shall be bound to pay penal compensation, for the period of delay.
It was averred that after making payment of substantial amount, referred to above, the complainant visited the site, and was surprised to see that construction work was going on at a very slow speed. Only 20% of the total work of unit was completed at the spot. Basic amenities like club house, electricity, water etc. were yet to be provided. It was stated that, on the other hand, in a very malafide manner, in order to absolve its liability, the opposite party offered possession of the unit, in question, vide letter dated 19.01.2017 Annexure C-7. It was mentioned in the said letter that balance amount, towards price of the unit, was to be paid within 15 days. Various other formalities were to be completed, whereupon, possession of the unit will be offered. Her visit to the site surprised her, as, at the spot, construction of the unit was not complete. The above fact was brought to the knowledge of the opposite party, by writing letter dated 01.02.2017, Annexure C-8. In the said letter, the complainant showed her disappointment, in offering to her possession of incomplete unit. She also raised issue of non-adjusting of compensation amount to be paid, towards delay caused in delivery of possession of the unit. She also placed on record the photographs showing in complete status of the said unit offered. In response thereto, she received one letter dated 07.02.2017, wherein, it was admitted that final paint, final cleaning of the unit, fixtures and fitting work will be carried out on making payment of balance amount. Thereafter, the complainant filed consumer complaint bearing no.177 of 2017 before this Commission, which was disposed of on 01.03.2017, by observing as under: -

“As per averments made, it is stated that the basic facilities are missing at the spot. Let the complainant sent a detailed notice to the Opposite Party indicating deficiencies in construction of the unit. If any, such notice is sent by the complainant, the Opposite Party is directed to give specific reply to each query raised by the complainant, within 15 days from receipt of the said letter.

Accordingly, this complaint stands disposed of with liberty to the complainant to file it again, if need be in future.

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

Thereafter, she sent detailed notice/representation on 16.03.2017 to the opposite party, specifying her grievances. In response thereto, she received letter dated 31.03.2017, again offering her possession of the unit stating that it was ready for possession. Possession was offered to make necessary fit outs in the said unit. She was asked to pay the balance amount. It is her case that she sought information under Right to Information Act, 2005, wherein she was intimated that till 07.04.2017, the Competent Authority had not issued any completion/partial completion certificates, qua the project, wherein the unit, in question, is allotted to her. It was further stated that possession so offered by the opposite party, in the month of January 2017 was a paper possession. Till the date of filing of this complaint, for want of occupation and completion certificates, possession of the unit could not have been offered to the complainant. Another letter issued, offering possession of the unit was also not justified. By stating as above, the instant complaint was filed, seeking following relief:-
1. Handover the possession of the flat after completing the construction and other development work without any further delay.
2. Hand over the physical possession of the flat after complying with all the basic amenities like water, electricity, roads etc.
3. Pay interest at eighteen percent per annum from the respective dates of deposits, on the payments made by the Complainant to the Opposite Party till the possession is handed over to the Complainant.
4. Pay back the excessive amount received by the Opposite Party from Complainant on apart from the total sale consideration along with the interest from the respective dates of deposits
5. Pay to the Complainant an amount of Rs.5,00,000/- as compensation to the Complainant on account of deficiency in services and unfair trade practices, resulting in mental agony, harassment, humiliation and financial loss suffered due to deficient services and unfair trade practice of the Opposite Party.
6. In addition to the above reliefs, as prayed supra, the Opposite Party may be ordered to pay the Complainant, the compensation as per Clause 15 of the Agreement to Sell, Annexure C-4 and also interest paid by the Complainant to its Banker for the delayed period.
7. To direct the opposite party to make the payment of Rs.06,21,000/- from February 2014 till February 2017 by way of fine to the complainant along with interest @ 18 % compounded quarterly till the delivery of the possession.
8. Pay an amount of Rs.55,000/- towards the costs of the litigation.”
Prayer was made to issue directions to the opposite party to hand over possession of the constructed unit, in a developed project. She also sought payment of interest for the delayed period; compensation towards deficiency in providing service etc.; litigation expenses etc.
Upon notice, reply was filed by the opposite party, raising many preliminary objections like as per Clause 41 of the Allotment Letter/Agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said provision, the matter needs to be referred to an arbitrator for adjudication. It was further averred that the complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as she being investor had purchased the unit, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. She has her own house at Ambala. Pecuniary jurisdiction of this Commission was challenged. Territorial jurisdiction of this Commission was also challenged, by stating that no cause of action, whatsoever, has accrued within the territorial jurisdiction of this Commission.
Factual matrix of the case was not controverted. Price of the flat mentioned in the complaint and payments made by the complainant is not disputed. There is no dispute qua total sale consideration of the unit. It was also not seriously disputed that as per Clause 23 (b) of the said Allotment Letter/Agreement, the opposite party undertook to complete the construction work within 30 months (24 months (+) 06 months grace period) from the date of signing of allotment letter dated 09.02.2012 i.e. upto 08.08.2014. However, Counsel for the opposite party, at the time of arguments vehemently contended that the said period was to be computed, after excluding Saturdays, Sundays etc. It was stated that offer of possession was made to the complainant, twice, in Jan. 2017 and Mar. 2017, whereby, she was asked to make final payment, so that final finishing work of the unit could be carried out, however, instead of making payment, she filed this consumer complaint. Breathing time was not given to the opposite party. It was virtually admitted on merits that some units were not complete for possession. It was averred that the said fact cannot be reason for the complainant, not to accept offer of possession. Nothing was stated, as to when occupation certificate in respect of the said unit was issued, in favour of the opposite party or that it has been issued or not, by the Competent Authority. It was stated that there was delay on the part of the complainant, in making payment towards the said unit, as such, she is not entitled to any delayed compensation. Prayer was made to dismiss the complaint.
On 17.05.2017, an application under Section 8 of the Arbitration and Conciliation Act, 1996, was also filed by the opposite party, stating that this Commission has no jurisdiction to entertain the consumer complaint and let the matter be referred to an arbitration for adjudication. The said application was disposed of vide order dated 19.05.2017, with the direction that question qua arbitration will be considered, at the time of final arguments in the main case.
The parties led evidence in support of their cases.
The contesting parties raised arguments, in tune of the facts narrated above.
We have heard the contesting parties, and have gone through the evidence and record of the cases, very carefully.
First, we will deal with the objection, raised by the opposite party, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

We are not going to agree with the objection raised. This Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126 has already elaborately dealt with this question, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6 SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Furthermore, under similar circumstances, the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016, held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

Furthermore, the National Commission in a case titled Omaxe Limited Vs. Dinesh Lal Tarachandani, First Appeal No.1433 of 2016, decided on 24.11.2016, while dismissing the appeal filed by the builder (Omaxe), held as under:-

“We are unable to persuade ourselves to agree with the Learned Counsel. In our opinion, the decision of the State Commission being based on the authoritative pronouncements by the Hon’ble Supreme Court and also on the decision dated 02.05.2016, rendered by this Bench in the case of Lt. Col. Anil Raj & Ors. Vs. M/s Unitech Limited & Ors. in CC No. 346/2013, in which we have held that notwithstanding the amendments in the Arbitration Act, the reasoning and ratio of the decision of the Hon’ble Supreme Court, in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Ors. (Supra) still holds good, no fault can be found with the view taken by the State Commission.

Consequently, the Appeal fails and is dismissed accordingly.”

Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act.

In view of the above, the objection raised in this regard, being devoid of merit is rejected.

It was further stated by Counsel for the opposite party that the complainant being investor, has purchased the unit in dispute, for selling the same, to earn profits and not for personal use, as such, she would not fall within the definition of consumer, as defined under the Act. It may be stated here that, in the present case, in her complaint, it has been specifically stated by the complainant that she has purchased the flat, in question, for her personal use. Still, in the present complaint filed, she has prayed for issuance of directions to the opposite party, for delivery of possession of the unit, complete in all respect alongwith compensation etc. At the same time, that there is nothing on record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, in the open market and, as such, the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Since, the opposite party has leveled allegations against the complainant, as such, the onus lays upon it, to prove it, which it failed to do so. Thus, in the absence of any cogent evidence, in support of the objections raised by the opposite party, mere bald assertion i.e. simply saying that the complainant being investor, as she has her own house at Ambala, as such, she did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house.

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite party, in its written reply, therefore, being devoid of merit, is rejected.

Now we will like to deal with an objection raised by the opposite party that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint.

It may be stated here, that the complainant has sought possession of the unit, in question, price whereof is Rs.46.25 lacs; interest @18% p.a. on the deposited amount; and @Rs.10/- per square feet of the super area, for the period of delay in delivery of possession; compensation to the tune of Rs.5 lacs, for mental agony, physical harassment, financial loss, deficiency in providing service and unfair trade practice; cost of litigation to the tune of Rs.50,000/- etc., aggregate value whereof fell above Rs.20 lacs but below Rs.1 crore. In no way, the aggregate value of the relief claimed, exceeds Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by the opposite party, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, perusal of almost all the payment receipts reveals that the same have been issued by Regional Office of the opposite party at Chandigarh, as the same bore the first address as “SCO 143-144, Sector 8-C, Madhya Marg, Chandigarh”. Furthermore, offer of possession letter dated 19.01.2017 Annexure C-7, Statement of account dated 19.01.2017 (at page 54 of the file), second offer of possession letter dated 31.03.2017 Annexure C-13 alongwith statement of account attached therewith, also revealed that the same were issued by Chandigarh Office of the opposite party. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the opposite party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

Now it is to be seen, as to whether, offer of possession made vide letter dated 19.01.2017 or thereafter, vide letter dated 31.03.2017, was a genuine one or a paper possession. We have looked into the facts of the case; photographs of the unit and site, placed on record, which were clicked by the complainant on 10.02.2017. The said photographs clearly depict that the unit was not complete for occupation. It was in a pitiable condition and as such, the said letters offering possession of the unit, appears to have been issued by the opposite party, to save its skin. Otherwise also, in first paragraph of the letter dated 19.01.2017, it was informed to the complainant that development of the project, in question, is on the verge of completion. It was further mentioned in the said letter that final finishing work still remains to be done qua the unit, in question. The contents of said letter also reveal that still necessary interior/fit out works is to be done, in the said unit. Vide the said letters, the complainant was asked to take temporary possession of the unit, in question. It may be stated here that the complainant had already paid substantial amount of more than Rs.44 lacs, out of Rs.46.25 lacs of cost of the flat. In that event, it was incumbent upon the opposite party to complete development work of the project and also construction of the unit, in all respects, and then offer possession of the unit, however, it was not so done. In reply filed, it was not stated by the opposite party, that when the unit was offered for possession, it (opposite party) was in possession of completion/partial completion certificates. At the time of arguments, when Counsel for the opposite party was asked to produce occupation certificate and also partial/completion certificate, it was very hesitantly stated by him that the same are not available. However, he said that, within next two months, possession of the unit, complete in all respects, will be offered to the complainant. Not even a single convincing document has been placed on record, by the opposite party, that the unit, in question, is habitable or that the development of the project is complete in all respects and all the basic amenities are in existence at the site. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite party. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by the opposite party, in respect of the flat, in question, to prove that the construction is complete and they were actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development and construction activities, had been undertaken and completed at the site or not, but it failed to do so. At the same time, the opposite party was also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove its case, but it miserably failed to do that also. This act and conduct of the opposite party, amounted to unfair trade practice.

In view of above, it is held that the offer of possession, made by the opposite party letter dated 19.01.2017, followed by reminder dated 31.03.2017, is nothing, but mere a paper possession, which is not sustainable in the eyes of law. By making a misleading statement that possession of the constructed unit, with all basic amenities required, will be delivered within the maximum period of 30 months from the date of Allotment Letter/Agreement i.e. latest by 08.08.2014, and not abiding by the commitment made and at the same time issuing paper possession, the opposite party was not only deficient, in rendering service, but also indulged into unfair trade practice.

However, in connected consumer complaint bearing no. 318 of 2017, titled as Gorav Gupta and another Vs. M/s Omaxe Chandigarh Extension Developers Private Limited, the position is worst, as possession of the unit therein, has not even been offered to the complainants, till the date of arguments, in this complaint.

Under above circumstances, the complainants, in both the complaints, referred to above, are certainly entitled to delivery of physical possession of the unit, in question. At the same time, it is also held that the opposite party is also liable to pay compensation to the complainant(s), for causing mental agony, physical harassment, deficiency in providing service and adoption of unfair trade practice.

Further contention raised by Counsel for the opposite party that as per Clause 23 (b) of the Agreement, beyond the period of 24 months, the opposite party can get further six months to deliver possession of the unit and while computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, and when dealing this issue, it was observed by this Commission, as under:-

“We feel that the contention raised is liable to be rejected. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 months, from the date of allotment letter, with six months extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

Similar view has also been reiterated by this Commission, in number of cases, thereafter, in respect of the same project. 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. Out of the two benefits, only one can be made available to the opposite party. In this view of the matter, the contention raised by Counsel for the opposite party, being devoid of merit, must fail and the same stands rejected.

What relief can be granted to a consumer, in case of delay, in offering possession of a residential unit purchased, also came up for consideration before this Commission in Ankur Gupta`s case (supra), wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015. Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8. If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9. xxxxxxxxxxxxx

10. For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1) xxxxxxxxxxxxxx

(2) The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Taking note of above said proposition of law, in the present case also, ends of justice would meet, if interest is granted for delayed period, to the complainant whereof 08.08.2014.

It has vehemently been contended before us, by the brother of the complainant (consumer complaint no.331 of 2017) and Counsel for the complainants (consumer complaint no.318 of 2017), in both the complaints, that by accepting substantial amount of booking in 2011 and thereafter issuing final allotment letter after a delay of about 10/12 months, the opposite party, in both the complaints, has indulged into unfair trade practice, and, as such, it needs to be burdened with heavy costs, for the said delay.

The same question, also came up before this Commission in a case titled as Ankur Gupta`s case (supra) , wherein also there was a delay in issuance of Allotment Letter/Agreement, by the opposite parties, after accepting booking amount. While dealing with above said contention, it was observed by this Commission, as under:-

“In the first instance, we will deal with an argument, raised by Counsel for the complainant that by offering Agreement for signing after many months of the allotment and receiving huge amount, the opposite parties have indulged into unfair trade practice. It is on record that the complainant purchased the built-up unit by moving an application on 14.03.2011. He paid an amount of Rs.8 lacs, towards booking amount. Thereafter, in terms of letter dated 01.08.2011 Annexure C-2 sent by the opposite parties, an amount of Rs.9,18,951.85Ps., towards price of the said unit, which also includes Rs.23,068.98Ps., towards service tax, was paid by him. After draw of lots, flat was allotted to him on 23.12.2011. It is positive case of the complainant that Agreement was offered for signing on 18.09.2012; he signed and gave it to the opposite parties, on the same day. However, thereafter, to gain time, it was wrongly shown to have been executed on 26.03.2013. To the contrary it is case of the opposite parties that Agreement was signed on the date mentioned above. To support above said contention, no evidence whatsoever, has been placed on record by the opposite parties. As such, it can safely be said that Agreement was got signed belatedly on 26.03.2013 i.e. after a period of about 15 months, from the date of allotment, in the month of March 2011. The said act would amount to unfair trade practice on the part of the opposite parties. It was also so said by this Commission in Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016.”

It was found as a matter of fact that by issuing Allotment Letter/Agreement after 15 months, from the date of accepting booking amount, the opposite parties have indulged into unfair trade practice. In the present case also, it is apparent on record that the final Allotment Letter/Agreement, in both the cases, was delayed by a year. By doing so, the opposite party has indulged into unfair trade practice. After acceptance of booking amount, it was required of the opposite party to issue allotment letter/agreement, within a reasonable time, say two or three months. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

As such, by not offering Allotment Letter/Agreement, for signing in a reasonable time, but after a delay of about a year of accepting booking amount, the opposite party committed unfair trade practice and is also deficient in providing service. In view of above default committed, we are of the considered opinion that compensation to the extent of Rs.50,000/-, if granted to the complainants, in both the complaints, shall meet the ends of justice.

To defeat the genuine claim of the complainants, in both the complaints, a plea was also taken by the opposite party that since they (complainants) failed to pay installments of payment towards the said unit, in time, as such, they being defaulters, are not entitled to any compensation, for the period of delay. It may be stated here that the said plea taken by the opposite party is falsified from the statement of account dated 19.01.2017 (at page 54 in CC No.331 of 2017) and 18.02.2017, Annexure C-5 (in CC No.318 of 2017), respectively, issued by it only. In the respective documents, against the columns “Interest on account of delayed remittance” and also “Current Dues”, respectively, it has been mentioned as 0.00 (zero). Had there been any delay in making payment, on the part of the complainant(s), the opposite party would not have missed the chance and would have certainly placed on record, some cogent document, in that regard, but it failed to do so. In view of above, plea taken by the opposite party, being devoid of merit, is rejected.
No other point, was urged, by the contesting parties, in both the cases.
For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-

In Consumer complaint bearing no.331 of 2017, titled as Tejpal Kaur Vs. Omaxe Chandigarh Extension Developers (P) Ltd., the opposite party is directed as under:-

To hand over actual physical possession of the unit, in question, to the complainant, within a period of 04 months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation and partial/completion certificates, from the competent authorities, on receipt of legally due amount from her (complainant), if any.
To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by her to the Registering Authorities.
To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 08.08.2014 (promised date) to 31.07.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.08.2017, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
To pay compensation, in the sum of Rs.1.50 lacs, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
To pay compensation, in the sum of Rs.50,000/-, for adopting unfair trade practice, by not getting the Allotment Letter/Agreement signed within a reasonable period, after receiving substantial amount, as indicated above, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

Consumer complaint bearing no. 318 of 2017, titled as Gorav Gupta and another Vs. M/s Omaxe Chandigarh Extension Developers Private Limited. The opposite party/Company(s), addresses whereof have been mentioned in the head note of the main complaint is directed as under:-

To hand over actual physical possession of the unit, in question, to the complainants, within a period of 04 months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation and partial/completion certificates, from the competent authorities, on receipt of legally due amount from them (complainants), if any.
To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainants, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.
To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainants, from 29.10.2014 (promised date) to 31.07.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.08.2017, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10^th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
To pay compensation, in the sum of Rs.1.50 lacs, on account of mental agony, physical harassment, caused to the complainants, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
To pay compensation, in the sum of Rs.50,000/-, for adopting unfair trade practice, by not getting the Allotment Letter/Agreement signed within a reasonable period, after receiving substantial amount, as indicated above, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
To pay cost of litigation, to the tune of Rs.33,000/- to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.

Certified copy of this order passed shall also be placed in the connected case file.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.

Pronounced.

10-Aug-17

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

MEMBER

Rg.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	318 of 2017
Date of Institution	:	12.04.2017
Date of Decision	:	10-Aug-17

Gorav Gupta son of Sh.S.K. Gupta.
Sangeeta Gupta wife of Sh.Gorav Gupta.

Both R/o House No.2474, Sector 37-C, Chandigarh.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers Private Limited, Regional Office SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh.

2^nd Address:- Omaxe City, 111^th Mile Stone Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Express Way Jaipur, 302026, through its Managing Director.

3^rd Address:- M/s Omaxe Chandigarh 10^th LSC, Kalkaji, New Delhi 110019, through its Managing Director.

.... Opposite Party

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.Raj Kumar Sahota, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the opposite party.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.331 of 2017, titled as Tejpal Kaur Vs. Omaxe Chandigarh Extension Developers (P) Ltd., this complaint has been partly accepted with cost.

Certified copy of the order passed in consumer complaint bearing No. 331 of 2017 shall also be placed on this file.
Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 331 of 2017, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.

Sd/- Sd/- Sd/-

(DEV RAJ)

MEMBER

(JUSTICE JASBIR SINGH (RETD.))

PRESIDENT

(PADMA PANDEY)

MEMBER

Rg.Top of Form

Chandigarh

StateCommission

CC/318/2017

Gorav Gupta - Complainant(s)

Versus

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

Ranbir Singh Rawat, Adv.

10 Aug 2017

ORDER

V e r s u s

V e r s u s

V e r s u s

PRESIDENT

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