Chandigarh

StateCommission

CC/33/2023

MRS. KOMAL JOGPAL - Complainant(s)

Versus

M/S OMAXE CHANDIGARH EXTENSION DEVELOPERS PVT. LTD., - Opp.Party(s)

PRITISH GOEL, SHIVA PARASHAR , AMAR VIVEK AGGARWAL

07 Mar 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint No.	:	33 of 2023
Date of Institution	:	05.04.2023
Date of Decision	:	07.03.2024

 

1. Mrs. Komal Jogpal, Aged about 53 years, W/o Sri G.S. Phani Kishore
2. G.S. Phani Kishore, Aged 56 years, S/o Late Sri G.S.L.N. Somayajulu

 

Both care of Permanent Address: C/o Sh. T.D. Jogpal, H.No. 2027-E, Block No. 22, CHB Flats, Sector 63, Chandigarh- 160062

 

….Complainants

Versus

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Indian Trade Tower, First Floor, Madhya Marg Extension, New Chandigarh (Mullanpur), SAS Nagar, Mohali, through its Authorized Signatory Sh. Bharat Pal
2. Managing Director, M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Indian Trade Tower, First Floor, Madhya Marg Extension, New Chandigarh (Mullanpur), SAS Nagar, Mohali.

….Opposite parties

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR.RAJESH K. ARYA, MEMBER

 

Present:-              Sh.Amar Vivek Aggarwal, Advocate for the complainants.       Ms.Ruchi Sekhri, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   It is the case of the complainants that in the year 2011, though they have booked a residential unit bearing no.OCIF/GROUND/697 (Independent Ground Floor) in the project of the opposite parties, launched by them under the name and style “Omaxe Cassia” for a total sum of Rs.73,90,000/- yet, during the period intervening, the said unit was unilaterally shifted to Upper Ground Floor instead of Independent Ground Floor and that too in the year 2019. It is also the case of the complainants that despite the fact that the unit in question was booked as far as back  in the year 2011 by making booking amount of Rs.9,70,055.45ps. vide cheque dated 25.08.2011 and thereafter substantial amount stood paid by them to the opposite parties, even then possession was not delivered by 14.03.2015 i.e. 30 months inclusive of 6  months grace /extension period, as envisaged under clause 23 (b) of the allotment letter dated 15.09.2012,  Annexure C-1. It has been averred that when the opposite parties failed to deliver possession by the stipulated date, the complainants wrote number of emails in the matter but to no avail. The opposite parties had been sending letters on wrong address of the complainants, despite the fact that they had duly communicated their new address vide email dated 08.09.2015, Annexure C-17. The complainants paid an amount of Rs.81,48,290.01ps, as reflected in statement of accounts dated 17.01.2019, Annexure C-18, yet, the opposite parties did not adhere to their promises made.  No consent, whatsoever was taken by the opposite parties for shifting the said flat from independent ground floor to Upper Ground Floor to be built on stilts and also while doing other material changes in the layout plans of the unit qua garden,  car parking, servant quarter etc. However, only paper possession of the unit in question stood given to the complainants on 03.07.2019 and sale deed, Annexure C-19, was registered in respect of the same. In this manner, actual physical possession of the unit in question was never delivered to the complainants. Thereafter, the complainants sent numerous emails and also made telephonic calls to the opposite parties to redress their grievance regarding delivery of actual physical possession of the unit in question but to no avail.  However, possession of the unit in question was finally handed over to the complainants on 10.10.2020, Annexure C-21. Thereafter, the complainants kept on attending various meetings with the Senior Officers of the opposite parties with regard to redressal of their grievances qua delay compensation etc. but to no avail. Hence this complaint has been filed by the complainants seeking following reliefs:-

 

“…A. The Complainants are entitled to a sum of Rs. One Crores towards Compensation, liquidated damages and huge irreparable losses on account of the fraudulent action of the Opposite Parties in handing over only the First Floor or the Upper Ground Floor to the complainants, instead of promised Ground Floor with amenities like lawn, Ground Floor etc. to them and pay the said amount of Rs. One Crores with 18% interest on the said sum of Rs. One Crores, from the date of possession i.e. 20-10-2020 till the date of payment to the complainants, on account of violation, breach and clear cut fraudulent action on their part for wilful default of essential term of the contract thereby leading to a clear cut and apparent deficiency in services.

 

B. The Complainants are entitled to punitive damages to the tune of Rs. 67.22 Lakhs on account of culpable delay of 73 months in handing over the promised possession including a sum of Rs. 50 Lakhs for breach and delay and another sum of Rs. 17,22,800/-, towards promised damages for delay as laid in the agreement i.e. total sum of Rs. 67,22,800/- along with 18% interest, from the date of possession i.e. 20-10-2020 till the date of payment for the culpable and uncalled for delay made by the Respondents in providing the possession of the flat.

 

C. The complainants are entitled to a refund of Rs. 25 Lakhs for the enhanced cost, penal interest and other miscellaneous charges for overcharging of price by the Respondents from the complainants, on account of extra items etc. which were handed over in the name of extension of area of balcony etc.

 

D. The Complainants are entitled to a compensation of Rs. 25,00,000/- in lieu of the extreme mental agony; victimisation and harassment caused to her and for the aforesaid deficiency of services by the Respondent as the Complainant has been made to suffer due to the above said acts of the Respondent.

 

E. The Complainants are also entitled to additional sum of Rs. 5,00,000/- towards litigation costs to being incurred from the defaulting parties.

 

F. Any other order or relief as the Hon'ble Court may deem fit and proper in the facts and circumstances in favour of the Complainants be passed/granted in the interest of justice and equity…”

 

2.           The complaint was contested by the opposite parties by way of filing joint written version, wherein while taking numerous objections, it has been stated as under:-
   1. that cause of action accrued to the complainants on 03.07.2019, when possession of the unit in question was taken over by them, yet, this complaint having been filed on 05.04.2023 is barred by limitation;
   2. that any allegations of unilateral change of unit from independent ground floor to upper ground floor cannot be entertained after expiry of limitation period;
   3. that this complaint is bad for misjoinder of parties;
   4. that the complainants have tried to mislead this Commission by misrepresenting the facts;
   5. that as per clause 3 of the allotment letter, the  opposite parties have right to make variations,  modifications, additions, alterations etc. in the unit in question;
   6. that as per the notification dated 25.10.2013, annexure OP-3, the Government of Punjab made compulsory to build flats with stilt parking and therefore required modifications were made at the project site; 
   7. that the complainants were defaulters in making payment towards the unit in question;
   8. that possession of the unit in question stood delivered to the complainants after obtaining occupation certificate dated 02.04.2018, Annexure OP-8 from the competent authorities;

 

3.           On merits, it has been stated that after execution of sale deed of the unit in question, the complainants did not take care of their unit, upon which the opposite parties  vide letter dated 08.10.2020, Annexure OP-14, asked them to take over possession failing which they shall be liable to pay damage and holding charges, as a result of which, they took over the same on 10.10.2020. Rest of the averments made by the complainants in their complaint were denied by the opposite parties.
4.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written reply of the opposite parties.
5.           The parties led evidence, in support of their case and also filed written arguments.
6.           We have heard the counsel for the parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
7.           Before going into the merits of this case, first we are going to deal with the  moot question, as to whether, this complaint is filed within the period of limitation or not? It may be stated here that limitation is the mixed question of law and facts. Counsel for the complainants submitted that limitation starts from 10.10.2020  and kept on running with the emails exchanged between the parties thereafter and also by mutual oral agreement dated 21.08.2021, on which date meetings  with several officers of the opposite parties and the complainants were held at their corporate office, which fact is not denied by the opposite parties in their written reply. On the other hand, counsel for the opposite parties submitted that once limitation starts running cannot be stopped by subsequent events specifically by exchange of emails. It has been empathetically denied that any  meeting has taken place on 21.08.2021 at Chandigarh or Mohali, as alleged in the complaint. We have our given thoughtful consideration on this point.
8.           Before we delve into the matter of limiation, this Commission would like to reproduce relevant part of para no.2 (xviii) of the complaint:-

 “..xviii The fact however remains that the actual Physical possession was handed over to the complainants by the Opposite Parties only on 10th of October 2020. Certain pictures of the handing over of the possession as clicked on the same day as attached herewith as Exhibit C-22. It is an admitted fact that the Opposite Parties handed over the actual physical possession of the apartment to the Petitioners only in October 2020, when the complainants even signed the register of the Opposite Parties acknowledging receipt of possession in October 2020. Even upon the handing over of the possession of the apartment in question in October 2020, the complainants were shocked that the same had numerous deficiencies. Ever since the handing over of the possession to the complainants, they have been broaching the issue with the Respondents for settling the final terms of compensation payable to the complainants. The opposite parties have been meeting with the complainants repeatedly to settle the issues and have been assuring the complainants of out of court settlement. The parties met in the months of November 2019, again in the month of January 2020 and thereafter met several times. The Opposite Parties finally handed over the possession to the complainants in the month of October 2020 and even thereafter meetings and parleys continued between the parties till 21st, August 2021, but every time the opposite parties only procrastinated the issue of payment of compensation and settlement of issues between the parties. The Opposite Parties remained hopeful in series of meeting till the end of August 2021, with senior officials of Opposite Parties that they would offer price settlement and compensation to the complainants. False assurances were given to the complainants that a policy decision is being taken at Corporate level to settle grievances of various allottees like the complainants for granting adequate price reduction and payment of compensation for inordinate delay in handing over the possession of apartment to them. Also some terms would be settled for allottes like complainants for not handing over the Ground Floor. As such, the complainants remained hopeful and continued meeting and running after the higher officials of the Opposite Parties for an amicable resolution of their dispute. A meeting was held with senior officials of the Opposite Parties and complainants on 21-08-2021 at their corporate office in Indian Trade Tower at SAS Nagar, wherein the complainants were assured of due action and redress. However, ever since then, the complainants have not heard anything meaningful from Opposite Parties. The complainants were told to accept a lump sum compensation of Rs. 6 Lakhs by the Opposite Parties and sign and execute an indemnity bond, for settlement of all their claims in the said meeting, which had only blank columns, which has since been refused by the complainants. When complainants raised protest about shabby treatment being meted out to them, the Opposite Parties promised to get back to the complainants with some better deal.

xix.    However, since August 2021 onwards the opposite parties have maintained a stoic silence over the issues and have stopped receiving calls and messages of the complainants. The Opposite Parties have not come out with any redress or alternate resolution plan for the complainants.

xx.     As such, having been left with no other alternative, the complainants are filing the present complaint before this Hon'ble Court…”

 

9.           This para was replied as under by the opposite parties:-

 

“……That in reply to the contents of para no.2 (xviii) of the present complaint, it is submitted here that when on 01.12.2018 (Ex. OP-10), the OPs sent a letter regarding cancellation of aforesaid residential unit to the complainants for non-payment. The Complainants verbally requested OPs to waive of interest and penalty on late payment towards payment for delayed possession. Hence, as per mutual understanding, the OPs adjusted the amount of interest and penalty on delayed payment with the payment to be made by the OPs for delayed possession to the complainants. The complainants cannot ask for further payment on delayed possession, otherwise they also had to pay the interest and penalty on the delayed amount attracting further interest on the same. Rest of the contents of this para are vehemently denied being false. However, the contents of preliminary objections are being reiterated.

 

xix. That the contents of para no.2 (xix) of the present complaint are vehemently denied being false. However, the contents of preliminary objections are being reiterated.

 

That in reply to the contents of para no.2 (xx) of the present complaint, it is submitted here that the complainants have no cause of action and the present complaint is barred by limitation. However, the contents of preliminary objections are being reiterated…”

 

10.           Counsel for the complainants submitted that since the averments with regard to meeting between the complainants and officials/officers of the opposite parties in their corporate office has not been specifically denied in the written reply, therefore, it amounts to admission on the part of the opposite parties. While keeping aside the alleged controversial meeting on 21.08.2021, we are of the  considered view that the moot question to be determined by this Commission is as to whether by exchange of emails or in view of alleged mutual/oral agreement, the period of limitation can be extended. It may be stated here that the period of limitation starts against the opposite parties from the date of execution of sale deed i.e. 03.07.2019. It has been specifically mentioned in  para no.1 (h) of the sale deed that “…Vacant and physical possession of the unit has been handed over by the Vendor to the Vendee(s) herein at the time of execution of this Deed of Conveyance/ Sale Deed, and the Vendee(s) acknowledges having taken over the possession of the same to the Vendee(s)'s complete satisfaction with respect to amongst others, the quality, design, specifications & materials of the earthquake resistant structure constituting the building of which the said Unit is integrated/ integral part and the Vendee(s) agrees that the Vendee(s) shall have no claim whatsoever against the Vendor with regard to any defects or deficiency in construction, quality of materials used or on account of any delays etc…”  From the contents of the sale deed extracted above, it is clearly  proved that the complainants  took possession of the unit in question upto their complete satisfaction  and have no claim whatsoever against the opposite parties qua any defects or deficiency in construction, quality of materials used or on account of any delays etc. There is nothing on record that this sale deed was signed under protest.  It is well settled law that the parties are bound by  terms and conditions contained in the recitals of the sale deed and, on the execution and registration of a sale deed containing recitals regarding the payment of consideration and delivery of possession etc.  the sale is complete. It was also so said by the Hon’ble Supreme Court of India in 2023 LiveLaw (SC) 582-Yogendra Prasad Singh (Dead) through LRs versus Ram Bachan Devi & Ors. In this view of the matter, arguments of the counsel for the complainants that paper transaction of sale deed was issued and not actual possession was delivered, is not acceptable. Even otherwise, if it is deemed that possession was delivered on 10.10.2020, even then this complaint having been filed on 05.04.2023 is barred by limitation, as it should have been filed on or before 09.10.2022. 
11.           So far as writing of emails etc. by the complainants to the opposite parties are concerned, it may be stated here that it is settled law that mere exchange of letter/email correspondence will not extend the period of limitation. It has so been  said by the Hon’ble Supreme Court in  Geo Miller & Co. Pvt. Ltd. v. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd. (2020) 14 SCC 643.

                   Similarly, any mutual/oral agreements qua any negotiations in the matter, cannot extend the period of limitation. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in  M/s B and T AG v. Ministry of Defence, 2023 SCC OnLine SC 657, wherein it was held that that limitation period would initiate from the date of the cause of action and mere negotiations will not result in postponement of the date of limitation. Even if for the sake of arguments, it is presumed that there was some oral/mutual meeting between the parties even then limitation does not stands extended. Keeping view from any angle, we are of the considered view that this complaint is barred by limitation.

12.           It is significant to mention here that since it has been held above that this complaint is barred by limitation, as such, we cannot proceed further on merits, in view of ratio of law laid down by the Hon’ble Supreme Court in the case titled as  State Bank of India Versus M/s. B.S. Agricultural Industries, AIR 2009 Supreme Court 2210, wherein it was held that it is the duty of the consumer fora to take notice of the provisions of  Act pertaining to limitation and give effect to it and that if the complaint is barred by time and yet, it is decided on merits, the consumer fora would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
13.           For the reasons recorded above, this complaint being barred by limitation is dismissed with no order as to cost.
14.           Certified copies of this order be sent to the parties, free of charge, forthwith.
15.           The file be consigned to Record Room, after completion.

 

Pronounced.

07.03.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.