Chandigarh

StateCommission

CC/119/2018

Mayank Tyagi - Complainant(s)

Versus

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

Ankur Gupta, Adv.

09 Jul 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Mayank Tyagi son of Sh.Dinesh Mohan Tyagi, resident of H.No.1088, First Floor, Sector 15-B, Chandigarh.
2. Mamta Tyagi wife of Sh.Dinesh Mohan Tyagi, resident of H.No.1088, First Floor, Sector 15-B, Chandigarh.

……Complainants

V e r s u s

M/s Omaxe Chandigarh Extension Developers Pvt. Limited, SCO 139-134, Sector 8-C, Madhya Marg, Chandigarh-160008, through its Managing Director

              .... Opposite Party

Argued by:      

Sh.Ankur Gupta, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the Opposite Party.

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

Anurag Grover age 30 years son of Sh.Ashok Kumar Grover, r/o H.No.76, Phase Ii, Vikas Vihar, Ferozepur, Punjab.

……Complainant

V e r s u s

1. Omaxe Chandigarh Extension Development Pvt. Ltd. 10, LSC Kalkaji, New Delhi.

2. Omaxe Chandigarh Extension Development Pvt. Ltd., having ITS Regional Office at SCO No.143-144, Sector 8-C, Madhya Marg, Chandigarh now shifted to India Trader Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar (Mohali), Punjab.

              .... Opposite Parties

Argued by:              

Sh.Paras Money Goyal, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the Opposite Parties.

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

1. Sameer Grover age 35 years son of Sh.Ashok Kumar Grover,
2. Isha Grover age 34 years wife of Sh.Sameer Grover.

        Both through GPA  Anurag Grover son of Sh.Ashok Kumar    Grover, r/o H.No.76, Phase II, Vikas Vihar, Ferozepur, Punjab.

……Complainants

V e r s u s

1. Omaxe Chandigarh Extension Development Pvt. Ltd. 10, LSC Kalkaji, New Delhi.

2. Omaxe Chandigarh Extension Development Pvt. Ltd., having ITS Regional Office at SCO No.143-144, Sector 8-C, Madhya Marg, Chandigarh now shifted to India Trader Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar (Mohali), Punjab.

              .... Opposite Parties

Argued by:              

Sh.Paras Money Goyal, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the Opposite Parties.

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

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

                        MRS. PADMA PANDEY, MEMBER.

                        MR.RAJESH K. ARYA, MEMBER.

PER PADMA PANDEY, MEMBER

                        By this order, we propose to dispose of, following cases:-

2.             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.

3.             At the time of arguments, on 31.05.2019, it was agreed between the parties/their Counsel, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.             Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 119 of 2018, titled as “Mayank Tyagi & Anr. Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd.”

5.             The facts, in brief, are that the complainants filed this complaint, alleging that despite making payment of Rs.50,14,498/-, from time to time, to the Opposite Party, towards purchase of flat bearing No. OCIF/Ground/808, measuring 1725 square feet, in its project ‘Omaxe Cassia’ situated at New Chandigarh, Mullanpur, District SAS Nagar, Punjab,  it (Opposite Party) failed to deliver possession thereof, by the stipulated date i.e. 22.05.2016, as committed vide Clause 23 (b) of the Agreement executed between the parties on 23.09.2015. On the other hand, as and when, the complainants approached the Opposite Party, through physical visits or by writing letters, only bald assurances, with regard to delivery of possession of the unit were given by it.  It was further stated that on account of the act and conduct of the Opposite Party, the complainants are suffering huge financial loss, as on the one hand, they are paying equal monthly installments to LIC Housing Finance Limited, from which they had obtained loan for making payment towards price of the said unit and at the same time, they are also paying huge amount towards rent. Hence this complaint has been filed, seeking directions to the Opposite Party to hand over possession of the unit, in question; execution of the sale deed ; payment of compensation, by way of interest on the deposited amount; compensation for mental agony, physical harassment: litigation expenses etc. 

6.             Reply to the complaint was filed by the Opposite Party, raising many preliminary objections like as per Clause 41 of the allotment letter/agreement that this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said Clause, the matter needs to be referred to an arbitrator for adjudication. It was also stated that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, as they being investors, and, as such, the unit was purchased by them to earn profits in future. Pecuniary and territorial jurisdiction of this Commission was also challenged. It was further stated that the complainants at the time of filing the complaint have not sought permission under Section 12(1)(c) of the Consumer Protection Act, 1986 and, therefore, the complaint is not maintainable in the present form.

                Purchase of flat by the complainants, in the manner, referred to above, was admitted. There is no dispute qua total sale consideration of the unit. It was stated that as per Clause 23 (b) of the said Allotment Letter, it was agreed to between the parties that the Company shall endeavor to complete the construction/development work within 14 months (8 months (+) 06 months grace period)  from the date of signing of allotment letter dated 23.09.2015 i.e. upto 22.11.2016 and the said period was to be computed, after excluding Sundays, Bank Holidays etc. and, as such, time was not the essence of contract. Delay in handing over possession of the unit is admitted in para No.3 of written reply.  While placing reliance upon some letters/reminders for the period from January 2016 to June 2016, it was stated that the complainants were defaulters, in making payment towards price of the unit, in question.   Prayer was made to dismiss the complaint.

7.             The parties led evidence in support of their case.

8.             We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.

9.               As far as 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, is concerned, it may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, 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/Allotment Letter, 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. 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 complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

                In this view of the matter, objection raised by the Opposite Party, in this regard, stands rejected.

10.           With regard to the objection raised by the Opposite Party regarding pecuniary jurisdiction is concerned, a perusal of the zimini order dated 05.10.2018 shows that this issue has been raised by Counsel for the Opposite Party that claim filed by the complainants would be beyond the pecuniary jurisdiction of this Commission. He was directed to place on record calculation sheet. Counsel for both the parties filed their calculation sheet on 07.12.2018 and on perusal of both the calculation sheets, we were satisfied that the complaint filed by the complainants is within the pecuniary jurisdiction of this Commission.

11.           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 complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that the receipts (Annexure C-5), annexed by the complainants and letters dated 10.09.2015 & 21.03.2017 (Annexures C-1 & C-6) were sent by the Opposite Party from its Chandigarh Office, as the aforesaid documents bore the address as “SCO 139-140 Sector 8-C, Madhya Marg, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainants, 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.

12.           The next question that falls for consideration, is, as to whether, the complainants are investors, as such, they would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Act, 1986.

                It may be stated here that the complainants, in their complaint, supported by the affidavit, have clearly stated that they were wanting to own an independent residential accommodation for their family, and accordingly they are seeking actual physical possession of the unit, in question, alongwith compensation for the period of delay in offering it and other reliefs.  At the same time, there is nothing on record to prove that the complainants, are property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof.  Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. Since the Opposite Party has levelled allegations against the complainants, the onus lay upon it, to place on record, documentary evidence in that regard, which it failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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, Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, and recently in Shashi Kala Gupta Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., First Appeal No. 1281 of 2017, decided on 15 Mar 2019. Relevant part of the said order (FA 1281 of 2017) reads thus:-

“……..This Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the additional plots/flats purchased are for the personal use of the family members, the onus is on the Opposite Parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In the instant case there is no documentary evidence filed by the Developer to establish that the Complainant was indulging in any commercial activity in real estate, involved in the purchase and sale of plots…….. ”

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

13.           With regard to objection raised by the Opposite Party that the complaint was not signed by the second complainant is concerned, at the time of arguments i.e. on 31.05.2019, the second complainant, namely, Mrs. Mamta Tyagi put on record her affidavit dated 25.04.2019 stating that the complaint was filed at her instance by her son i.e. complainant No.1, namely, Sh.Mayank Tyagi and she is in the knowledge of the same and knows all the contents of the complaint. So, we are of the view that the objection taken by the Opposite Party has no value at all and the same stands rejected.

14.           At the time of arguments, it was also argued by Counsel for the Opposite Party that, as per terms and conditions of the Allotment Letter/Agreement, when computing the period of delivery of possession of the unit, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. We feel that the contention raised is liable to be rejected. It may be stated here that in Clause 23 (b) of the allotment letter, it is stated that possession of the unit will be delivered within 8 months, from the date of signing of allotment letter by the allottee, with six months’ extension period. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. Similar issue has been dealt with, by this Commission, in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and many other cases, thereafter. 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. In view of above, the plea of the Opposite Party in this regard stands rejected.

                   At the same time, it is also submitted that the Opposite Party cannot evade its liability, merely by saying that since the words ‘best efforts, endeavor etc.’ were mentioned in the allotment letter, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the plot or apartment is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

15.           The next point for consideration before us is as to whether within which period the possession was to be delivered to the complainants. It is the admitted fact that the Opposite Party allotted the unit in favour of the complainants vide allotment letter dated 23.09.2015. As per Clause 23(b), possession of the unit was to be delivered within a maximum period of 14 months (8 months (+) 6 months) from the date of signing of the allotment letter. Therefore, the possession was to be delivered to the complainants latest by 22.11.2016 and not more than that. However, in the instant case, the Opposite Party neither delivered possession of the unit to the complainants within the stipulated time frame, as mentioned in the allotment letter nor at the time of filing the complaint, which amounted to deficiency in service and indulgence into unfair trade practice.

16.           Now the question that needs consideration, is, as what relief can be granted to a consumer, in case of delay in offering possession of a residential unit purchased, in the absence of any force majeure circumstances having been faced by the builder. The said question, 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, wherein, 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.

17.           For the reasons recorded above, the complaint is partly allowed and the Opposite Party is directed as under:-

1. To hand over physical possession of the unit, in question, to the complainants, within a period of two (02) months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from them (complainants), towards remaining sale consideration.
2. 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 of the unit as mentioned in clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.
3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainants, from 23.11.2016 (promised date) till 30.06.2019, within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.07.2019, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10th 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.
5. To pay compensation, in the sum of Rs.1,50,000/-, 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.
6. To pay cost of litigation, to the tune of Rs.50,000/- 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.

Consumer Complaint No.124 of 2018 titled as “Anurag Grover Vs. Omaxe Chandigarh Extension Development Pvt. Ltd. & anr.”

18.           In the instant case, the Opposite Parties took similar objections like arbitration, territorial & pecuniary jurisdiction and complainant is not a consumer in their written statement. The aforesaid objections have already been decided by this Commission in the aforesaid paragraphs, so there is no need to reiterate it again.

19.           As regards allegations leveled by the complainant in his complaint that the Opposite Parties vide letter dated 08.06.2017 (Annexure C-24) unilaterally increased the area from 1425 sq. ft. to 1646 sq. ft. is concerned, a bare perusal of the clauses of allotment letter dated 31.10.2014 clearly shows that the area of the unit allotted to the complainant is tentative and the same is to be finally calculated at the time of offering possession, when the unit is complete. The said allotment letter is duly signed by the Opposite Parties as well as the allottee, therefore, once it was admitted by the complainant now he cannot wriggle out of the same. So, it is clear that the demand qua increased area is legally charged by the Opposite Parties. However, the Opposite Parties are entitled for the original rate of construction for the first 10% of increased area and for the remaining area at the present rate.  

20.           Furthermore, deficiency in providing service and adoption of unfair trade practice, is writ large, on the part of the Opposite Parties, with regard to time taken in execution of the Allotment Letter/Agreement. It is evident from the record, that alongwith application form dated 28.11.2011, the complainant deposited an amount of Rs.6 lakhs (Annexure C-1) and thereafter, another amount of Rs.5,92,043/- was made (Annexure C-4) to the Opposite Parties. Annexure C-9 is a copy of intimation of due installments. From this document, it is proved that the Opposite Parties called the complainant to make the payment of Rs.24,78,078.82. Then, the complainant vide letter dated 20.12.2012 requested the Opposite Parties to issue the letter showing that the project has been sanctioned from the competent authority as the complainant has to opt for a loan for the balance sale consideration, for which, some documents were necessary for sanctioning of the loan. However, the Opposite Parties did not issue the allotment letter. First time, the Opposite Parties issued allotment letter on 31.10.2014 (Annexure C-16). It appears that after approximately 2 ½ years, the Opposite Parties issued the said allotment letter. This Commission has held in number of cases that if Agreement/Allotment Letter is not presented for signing within a reasonable time, from the date of receipt of booking amount, it would amount to adoption of unfair trade practice on the part of a builder.  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”.

In the present case, Allotment Letter/Agreement was got signed after more than about 2 ½ years from the date of receipt of application form, referred to above. By doing so, the Opposite Parties have indulged into unfair trade practice, in this regard, as they have utilized the said amount for the said period, without providing anything, for which the complainant is entitled to reasonable compensation.

21.           The next question, that falls for consideration, is, as to whether the Opposite Parties offered possession of the unit, in question, to the complainant, complete in all respects or not and whether the complainant was bound to accept possession. It is the admitted fact that the complainant vide provisional allotment letter dated 23.11.2012 was allotted flat bearing No.557M/FF having built up area 1425 sq. ft. (Annexure C-8). Thereafter, the Opposite Parties issued allotment letter dated 31.10.2014 (Annexure C-16), vide which, as per Clause 7(a), possession of the unit was to be delivered within a period of 21 months (15 + 6 months) from the date of signing of the allotment letter by the allottee. Therefore, the possession was to be delivered by 30.07.2016 and not more than that.  Thereafter, vide letter dated 07.02.2018 (Annexure C-26), the Opposite Parties offered possession of the unit to the complainant i.e. after a delay of about 19 months. After receipt of the said letter, the complainant went to the site and found that there were major shortcomings and the flat was not ready for its offer of possession because the lift has not been installed, the plaster work is not complete, electric fittings have not been made, glass work has not been done, flat is completely unfinished, sanitary work has not been started, grills/glasses have not been installed in the balconies, kitchen is not ready, as the tiles has not been installed. Not only this,  to prove the aforesaid fact, the complainant clicked the photographs, which are annexed as Annexure C-28 (Colly.). A bare perusal of the photographs, which were clicked on 19.02.2018 i.e. after receipt of the offer of possession letter, clearly reveals that the unit was not complete in all respects. Even during the pendency of the complaint, vide zimini order dated 27.07.2018, Counsel for the Opposite Parties stated that qua this unit, Occupation Certificate was issued by the competent authority on 21.02.2018. This Commission directed the complainant to get possession after making payment of half of the amount demanded vide possession letter dated 07.02.2018 i.e. Rs.4 lakhs within next 10 days. On making the aforesaid payment of Rs.4 lakhs, possession will be delivered to him. It was further directed that if any defect was found, a list be prepared and under signatures of the complainant against receipt, the said list be handed over to the representative of the Company and the Company shall make an effort to remove the defects within next 15 days. On the next date of hearing i.e. 07.09.2018, proxy Counsel for the complainant stated that in terms of the order passed by this Commission on 27.07.2018, possession of the unit has been delivered to the complainant. Thereafter, vide zimini order dated 12.04.2019, Counsel for the Opposite Parties stated that the lift is likely to be made operational within next five months i.e. by September, 2019. Therefore, the aforesaid statement made by Counsel for the Opposite Parties clearly shows that at the time of offer of possession vide letter dated 07.02.2018, the same was not complete in all respects, which amounted to deficiency in service and indulgence into unfair trade practice.

22.           No other point, was urged, by the contesting parties.

23.           For the reasons recorded above, this complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed as under:-

(i)             To pay compensation, by way of interest @9% p.a. on the entire deposited amount, to the complainant, from 30.07.2016 (committed date) till 21.04.2018 i.e. two months from the date (21.02.2018) when Occupation Certificate was issued in respect of the project in question, within  45 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @12% p.a. instead of 9% p.a. from the date of default, till realization. However, it is made clear that the complainant is liable to pay pending amount of Rs.4 lakhs within a period of 45 days, failing which, the said amount shall carry interest @9% p.a. from the date of filing of the complaint till realization. The Opposite Parties are directed to charge for increased area of flat as per Clause of the allotment letter.

ii)             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 receipt of due amount of Rs.4 lakhs from the complainant, on payment of registration and stamp duty charges, by them to the Registering Authorities.

(iii)           To pay compensation, in the sum of Rs.1,00,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within  45 days,  from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @10% p.a., from the date of filing this complaint till realization.

(iv)           To pay compensation, in the sum of Rs.1 lac, for adopting unfair trade practice, by not getting the Allotment Letter/Agreement signed within a reasonable period, after receiving substantial amount from the complainants, as indicated above, within  45 days,   from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @10% p.a., from the date of filing this complaint till realization.

(v)            To pay cost of litigation, to the tune of Rs.33,000/- to the complainant, within  45 days, from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @10% p.a., from the date of filing this complaint till realization.

Consumer Complaint No.325 of 2018 titled as “Sameer Grover & anr. Vs. Omaxe Chandigarh Extension Development Pvt. Ltd. & anr.”

24.           In the instant case, the Opposite Parties took similar objections like arbitration, territorial & pecuniary jurisdiction, increase of size of unit and paper possession offered in their written statement. The aforesaid objections have already been decided by this Commission in the aforesaid paragraphs, so there is no need to reiterate it again.

25.           With regard to objection raised by the Opposite Parties that the instant complaint has been filed through General Power of Attorney, which is not embossed in India and thus, the instant complaint cannot be maintained, is not sustainable in the eyes of law. The complainants in para No.1 of their rejoinder clearly stated that complaint had been signed by the brother of complainant No.1 and brother-in-law of complainant No.2. The GPA is well versed with the facts of the present case. The GPA executed has been duly embossed in India, copy of GPA is annexed as Annexure C-35. A perusal of the said annexure clearly reflects that the same was embossed by the embassy of India. So, this objection is not sustainable in the eyes of law and the same stands rejected.

26.           At the time of arguments, it was argued with vehemence by Counsel for the Opposite Parties that since the complainants are resident at USA, as such, the instant unit was booked by them for the purpose of investment and not for the purpose of residence of themselves and their family members, as such, they would not fall within the definition of consumer. In the present case, there is nothing on record to prove that the complainants are the owners of number of houses and commercial properties. Also, there is nothing, on the record, that the complainants are property dealers and deal in the sale and purchase of property, on regular basis. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided 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 as above, under similar circumstances, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the National Commission, while rejecting similar plea raised by the builder, observed 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.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. Vs. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

Furthermore, no law debars NRIs, with roots in India, to purchase a residential property in India, for his/her personal use. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s  Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been purchased for the residence of the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

Under above circumstances, the ratio of law laid down in another judgment relied upon by the opposite party titled as Kishore Samrite Vs. state of U.P. and Ors. (2013) 2 SCC 39, in which it was said that no litigant can play hide and seek with the courts or adopt pick and choose, has gone against the Opposite Parties themselves and not the complainants. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, therefore, being devoid of merit, is rejected.  

27.              It is pertinent to note that during the pendency of the complaint, vide order dated 22.02.2019, Counsel for the Opposite Parties stated that flat is ready for possession and amount of more than Rs.12 lakhs is due to be paid by the complainant. On the said date, this Commission directed the complainant to deposit the amount of Rs.6 lakhs to the complainant. Thereafter, there is nothing to show from the zimini orders that possession was delivered to the complainant or not, after depositing the aforesaid amount of Rs.6 lakhs. 

28.           No other point, was urged, by the contesting parties.

29.           For the reasons recorded above, this complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed as under:-

1. To hand over physical possession of the unit, in question, to the complainant (if not given), within a period of two (02) months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation certificate and partial/completion certificates, from the competent authorities, on receipt of legally due amount from him (complainant), towards remaining sale consideration. The Opposite Parties are directed to charge for the increased area of flat as per Clause 16 of the allotment letter issued.
2. 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 of the unit as mentioned in clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.
3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainants, from 19.01.2017 (promised date) till 30.06.2019, within two months, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the entire deposited amount, w.e.f. 01.07.2019, onwards (per month), till actual delivery of actual physical possession of the unit, by the 10th 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.
5. To pay compensation, in the sum of Rs.1,50,000/-, 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.
6. To pay cost of litigation, to the tune of Rs.50,000/- 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.

30.           Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced.

09.07.2019

Sd/-

 (JUSTICE JASBIR SINGH (RETD.) PRESIDENT.

Sd/-

 (PADMA PANDEY)

        MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

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STATE COMMISSION

(Complaint Case No. 119 of 2018)

Argued by:        Sh.Ankur Gupta, Advocate for the complainants.

       Sh.Munish Gupta, Advocate for the Opposite Party.

 Dated the 9^th day of July, 2019

ORDER

                   Vide our detailed order of even date, recorded separately, all the three complaints have been partly accepted, with costs, as per directions given in the main order.

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Anurag Grover age 30 years son of Sh.Ashok Kumar Grover, r/o H.No.76, Phase Ii, Vikas Vihar, Ferozepur, Punjab.

……Complainant

V e r s u s

1. Omaxe Chandigarh Extension Development Pvt. Ltd. 10, LSC Kalkaji, New Delhi.

2. Omaxe Chandigarh Extension Development Pvt. Ltd., having ITS Regional Office at SCO No.143-144, Sector 8-C, Madhya Marg, Chandigarh now shifted to India Trader Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar (Mohali), Punjab.

              .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

                        SH.RAJESH K. ARYA, MEMBER

Argued by:              

Sh.Paras Money Goyal, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

                Vide our separate detailed order of the even date, recorded in Consumer Complaint bearing No.119 of 2018 titled as Mayank Tyagi & Anr. Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., this complaint has been partly accepted with costs. 

2.           Certified copy of the order passed in consumer complaint bearing No. 119 of 2018 shall also be placed on this file.
3.           Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.119 of 2018, be sent to the parties, free of charge.
4.           The file be consigned to Record Room, after completion.

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.      Sameer Grover age 35 years son of Sh.Ashok Kumar Grover,

2.      Isha Grover age 34 years wife of Sh.Sameer Grover.

          Both through GPA  Anurag Grover son of Sh.Ashok Kumar       Grover, r/o H.No.76, Phase II, Vikas Vihar, Ferozepur, Punjab.

……Complainants

V e r s u s

1.      Omaxe Chandigarh Extension Development Pvt. Ltd. 10, LSC Kalkaji, New Delhi.

2.      Omaxe Chandigarh Extension Development Pvt. Ltd., having ITS Regional Office at SCO No.143-144, Sector 8-C, Madhya Marg, Chandigarh now shifted to India Trader Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar (Mohali), Punjab.

              .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

                        SH.RAJESH K. ARYA, MEMBER

Argued by:              

Sh.Paras Money Goyal, Advocate for the complainants.

Sh.Munish Gupta, Advocate for the Opposite Parties.

PER PADMA PANDEY, MEMBER

                Vide our separate detailed order of the even date, recorded in Consumer Complaint bearing No.119 of 2018 titled as Mayank Tyagi & Anr. Vs. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., this complaint has been partly accepted with costs. 

2.               Certified copy of the order passed in consumer complaint bearing No. 119 of 2018 shall also be placed on this file.

3.               Certified copies of this order, alongwith the main order passed in consumer complaint bearing No.119 of 2018, be sent to the parties, free of charge.

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

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