Chandigarh

StateCommission

CC/275/2017

Pushpa Devi - Complainant(s)

Versus

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

Vijay Pal, Adv.

16 Nov 2018

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	275 of 2017
Date of Institution	:	31.03.2017
Date of Decision	:	16.11.2018

 

Pushpa Devi W/o Sh.Vijay Kumar, resident of House No.306, Sector 13, Hisar.

……Complainant

V e r s u s

M/s Omaxe Chandigarh Extension Developers (P) Limited, SCO No.139-140, First Floor, Sector 8-C, Madhya Marg, Chandigarh-160008, through its Managing Director/Principal Officer/ Authorized Officer.

2^nd Address:-  10 L.S.C., Kalkaji, New Delhi-110019.

              .... Opposite Party

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

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS.PADMA PANDEY, MEMBER

                        SH.RAJESH K. ARYA, MEMBER

 

Argued by:       Sh.Saroj Malakar, Advocate for the   complainant.

      Sh.Munish Gupta, Advocate for the opposite    party.

 

PER PADMA PANDEY, MEMBER

                The complainant has filed this complaint seeking possession of plot bearing no.1054, measuring 301 square yards, purchased in the project of the opposite party, named ‘Omaxe New Chandigarh’, Mullanpur, Punjab, total cost whereof was fixed at Rs.33,62,351.79ps. inclusive of all charges. It is definite case of the complainant that despite the fact that as per demands raised by the opposite party from time to time, she has paid substantial amount of Rs.28,98,235/- towards price of the said plot, yet, it failed to deliver possession thereof, within a period of 18 months plus 6 months totaling 24 months from 06.06.2012, as envisaged under Clause 24 (a) of the Allotment Letter of even date i.e. on or before 05.06.2014. It was stated that since the complainant is not in the custody of payment receipts and allotment letter, pertaining to the plot, in question, as such, the opposite party be directed to produce the same on record. It was prayed that let directions be issued to the opposite party to hand over possession of the plot, in question, to the complainant; get registered sale deed; to make payment of interest on the deposited amount @18% p.a., from the due date till delivery of possession of the plot; pay compensation for mental agony, physical harassment and also litigation expenses.  

2.         Reply to the complaint was filed by the opposite party, raising many preliminary objections like as per Clause 44 of the allotment letter/agreement, 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 stated that the complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, she being an investor. Plot was purchased to earn profits in future. Furthermore, since Sh.Vijay Kumar, who is co-allottee of the plot, in question, has not filed the complaint, meaning thereby that he is not aggrieved of the act and conduct of the opposite party. Pecuniary and territorial jurisdiction of this Commission was also challenged.
3.         It was stated that the complainant defaulted in making payment towards price of the said plot, as such, she cannot seek compensation, for the period of delay, in handing over possession of the plot.  It was pleaded that, in any case, the complainant will be benefited from the escalation of price of plot. Prayer was made to dismiss the complaint.
4.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite party.
5.         The parties led evidence in support of their case.
6.         Before going into merits of the case, it is very significant to add here that though in the written reply filed by the opposite party on 30.06.2017, a specific objection alongwith other objections, was taken by it that since co-allottee of the plot, has not been made a party to the complaint, as such, the question of handing over possession and also payment of delayed compensation aforesaid, did not at all arise. However, during pendency of the proceedings thereafter i.e. on 18.08.2017, Sh.Munish Gupta, Advocate for the opposite party without pressing the above said objection regarding non impleading of co-allottee of the plot  to the present complaint, stated that possession of the plot is ready and the complainant may approach the opposite party at the project site, within next ten days, to take over the same. On 03.08.2018, Sh.Munish Gupta, Advocate for the opposite party also stated before this Commission that for the delay caused, the opposite party is ready to offer reasonable compensation to the complainant. Ultimately, possession of the plot was handed over to the complainant during pendency of the complaint. However, despite giving statement by Sh.Munish Gupta, Advocate for the opposite party, that the complainant will be compensated reasonably, for the delay caused, no further steps were taken by the opposite party, as such, the case was reserved for orders on 28.09.2018. On account of getting some more information from the parties, the case was reheard on 16.10.2018 and was reserved for orders.
7.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
8.         It may be stated here that since during pendency of this complaint, the opposite party, of its own, through its Advocate, gave statement that it is ready to deliver possession of the plot to the complainant, which was adhered to by it, as possession was delivered to her and also further statement was given by him (Advocate for the opposite party) on 03.08.2018, that it is ready to offer reasonable compensation to the complainant, for the delay caused, in the matter, as such, there is no reason to go into the objections raised by the opposite party i.e. this Commission lacks pecuniary jurisdiction, territorial jurisdiction, relegating the matter to an Arbitrator etc. Even otherwise, when we go through the record of the case like Allotment Letter dated 06.06.2012 executed at Chandigarh; total sale consideration of the plot mentioned therein; relief sought for by the complainant etc., we find that this Commission is vested with pecuniary and territorial jurisdiction to entertain this complaint. As far as objection with regard to relegating the matter to an Arbitrator is concerned, this Commission in number of cases, while relying upon the judgments rendered by the Hon’ble Supreme Court and the National Commission has 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, the Consumer Fora, has jurisdiction to entertain the consumer complaint.

                As such, under above circumstances, the only 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/plot 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.

                In the present case, it is not disputed that Allotment Letter/Agreement was signed between the parties on 06.06.2012. Total price of the unit was fixed at Rs.33,62,351.79ps. It is also not in dispute that by the time this complaint was filed, the complainant had already paid an amount of Rs.28,98,235/-, to the opposite party, which fact is evident from the contents of affidavit submitted by the complainant during pendency of this complaint, which is not seriously disputed by the opposite party. As per Clause 24 (a) of the said Allotment Letter/Agreement, it was clearly stated by the opposite party that the Company shall put its best efforts to complete the development of the plot within 24 months (18 months (+) 06 months extended period)  from the date of signing thereof i.e. latest by 05.06.2014. Possession of the unit was delivered only on 02.12.2017, during pendency of this complaint. Admittedly, there is a delay in handing over possession of the plot, in question, to the complainant. 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 05.06.2014 till 02.12.2017, when possession was delivered to the complainant.

                Besides as above, the opposite party is also liable to pay compensation to the complainant, for providing her deficient service and guilty of adoption of unfair trade practice.

9.         Since the contesting parties restricted their arguments to the above said issues, which have been dealt with by this Commission, as such, no other point, was urged, by them.
10.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:-
    1. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, possession of which had already been delivered on 02.12.2017 during pendency of this complaint, within two months, from the date of receipt of a certified copy of this order, on payment of remaining sale consideration legally due and registration and stamp duty charges, by her to the Registering Authorities.
    2. To refund/adjust the proportionate amount, in respect of the reduced area of the plot, in question. (in case the area of the plot has been reduced).
    3. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 05.06.2014 (promised date) till 02.12.2017 (the date when possession was delivered), 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. for the entire period aforesaid, till realization.
    4. 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.
    5. 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.
11.         However, to safeguard the interest of the opposite party, it is ordered that, in case, in future, any dispute is raised by Sh.Vijay Kumar, co-allottee, qua the property in dispute or the receipt of awarded amount, the complainant shall be bound to indemnify the claim raised to the extent of his share and the opposite party will have no liability left to be discharged towards him  (Vijay Kumar).
12.         Certified Copies of this order be sent to the parties, free of charge.
13.         The file be consigned to Record Room, after completion.

Pronounced.

16.11.2018

 

Sd/-

 (JUSTICE JASBIR SINGH (RETD.) PRESIDENT.

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 

 

 Rg.