DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

(1)

1.                 Satinder Kaur wife of Sh. Paramjit Saini r/o House No.3130, Sector 47-D, Chandigarh.

2.                 Paramjit Saini (husband of complainant No.1) son of Sh. Ram Kishan Saini r/o House No.3130, Sector 47-D, Chandigarh.

                                      ---Complainants.

Versus

M/s Omaxe Limited (formerly Omaxe Construction Ltd.) a company registered under the Companies Act, 1956 having its Regional Office at SCO 143-144, Sector 8-C, Madhya Marg, Chandigarh – 160018, through its Director/Branch Head.

2^nd Address :

Registered Office Omaxe Limited, 7, Local Shopping Centre, Kalkaji, New Delhi – 110019.

--Opposite Party.

(2)

1.                 Jaswant Rai Saini son of Sh. Ram Kishan Saini r/o House No.3130, Sector 47-D, Chandigarh.

2.                 Dimple Saini (wife of complainant No.1) r/o House No.3130, Sector 47-D, Chandigarh.

                                      ---Complainants.

Versus

M/s Omaxe Limited (formerly Omaxe Construction Ltd.) a company registered under the Companies Act, 1956 having its Regional Office at SCO 143-144, Sector 8-C, Madhya Marg, Chandigarh – 160018, through its Director/Branch Head.

2^nd Address :

Registered Office Omaxe Limited, 7, Local Shopping Centre, Kalkaji, New Delhi – 110019.

--Opposite Party.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SMT. MADHU MUTNEJA                       MEMBER

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by: Sh. Deepak Aggarwal, Adv. for the complainants

                   Sh. Munish Gupta, Adv. for the OP.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           By this order we propose to dispose of the abovementioned two consumer complaints in which common questions of law and fact are involved.

2.                           The facts are culled out from C.C. No.499 of 2011-Satinder Kaur & Anr. Vs. M/s Omaxe Ltd.

3.                           Smt. Satinder Kaur and another have filed his complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs :-

(i)                to hand over the physical vacant possession of the flat;

(ii)             to pay assured monthly return of Rs.5400/- minus applicable TDS (per month w.e.f December 2011)

(iii)           to pay penalty @ Rs.5/- per sq. ft. of Super Area for the period of delay as per clause 28(e) of the agreement;

(iv)           to pay interest @ 18% per annum on the entire amount

(v)              to pay compensation of Rs.1,00,000/- for mental agony and harassment

(vi)           to pay Rs.21,000/- as costs of litigation.

4.                           In brief, the case of the complainants is that allured by the attractive advertisements issued by the opposite party, the complainants filled application form for its project ‘Omaxe Turning Dreams into Reality” to be developed on the land situated in the Revenue Estate of Villages Chakkan and Billanwali – Gujran, Pargana, Dharampur, Tehsil Nalagarh, District Solan (HP).  The complainants deposited a sum of Rs.1,00,000/- vide cheque dated 9.11.2007 for which the opposite party issued receipt dated 22.11.2007 (C-3). 

                   Thereafter, an agreement dated 8.12.2007 (C-4) was signed by the parties for  Residential flat bearing No.308 in Kachnar-C Tower on the 3^rd Floor having super area of approximately 89.46 sq. mt/963.00 sq. ft.  An addendum to agreement dated 8.12.2007 (C-5) was also added to the original agreement.  It has been averred that as per the addendum to the agreement, it was agreed that upon receipt of a sum of Rs.12,76,070.36 towards down payment, i.e. 95% of the basic sale price plus 50% of the additional charges in respect of the unit, the opposite party was to pay a sum of Rs.5,400/- per month.  According to the complainants, they took loan of Rs.11.00 lacs from Axis Bank to meet their expenses. 

                   It has been pleaded that the complainants deposited a sum of Rs.12,76,070.36 as per letter dated 27.2.2008. According to the complainants, as per agreement dated 8.12.2007 the opposite party shall endeavour to complete the construction of flat within 18 months from the date of signing of the agreement.  However, when the complainants visited the site, they found that the construction work of the flat booked in Kachnar-C Towers had not started.  The complainants requested the opposite party for possession of the flat on number of occasions but it miserably failed to do so and did not give any explanation for the delay.

                   In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

5.                           The opposite party in its written reply by way of affidavit of Sh. Harsh Bhargav, authorised representative submitted that the allotment of the apartment was made on the request of the complainant.  It has been admitted that an agreement and addendum to the agreement dated 8.12.2007 was entered into between the parties. However, it has been denied that the complainant was allured by the opposite party or that it was negligent in rendering proper services.  It has further been denied that the complainants are entitled for any assured monthly return w.e.f December 2011 or that there is any delay in construction or handing over the possession.  It has been submitted that the project of the opposite party is as per the promises made by it. 

                   According to the opposite party, there is no deficiency in service on its part and the complaint deserves dismissal.

6.                           We have heard the learned counsel for the parties and have gone through the documents on record.

7.                           It has been argued by the ld. Counsel for the complainants that on being allured by the opposite party, the complainants submitted an application for the purchase of the apartment under the Group Housing Project “OMAXE TURNING DREAMS INTO REALITY” with the opposite party. The project was to be completed within a period of 18 months. The complainants deposited an amount of Rs.1,00,000/- vide receipt dated 22.11.2007(C-3). An agreement dated 8.12.2007  was executed between the parties and flat bearing No.308 in Kachnar-C Tower on the 3^rd Floor having super area of approximately 89.46 sq. mt/963.00 sq. ft. was allotted to the complainants. It has further been argued that an Addendum was also added to Agreement dated 8.12.2007.  According to the ld. Counsel total payment of Rs.12,76,070.36 was made to the opposite party. It has further been argued by the ld. Counsel that as per the agreement dated 8.12.2007, opposite party were to complete the project within 18 months but no offer of possession was made to the complainants within the stipulated period.  When the complainants visited the site they found that the construction work had not started.

8.                           The Opposite party did not dispute the facts with regard to the allotment of the flat in question to the complainants and the payments made by them. Annexure C-4 is the Agreement dated 8.12.2007 executed between the parties. Clause 28(a) deals with the period within which the opposite party was to complete the construction and the same reads as under :-

“(a)      That the Company shall endeavor to complete the development/construction of the flat within 18 months from the date of signing this agreement by the Buyer(s) or within an extended period of six months, subject to force majeure conditions [as mentioned in Clause (b) hereunder] and subject to other Flat Buyer(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 Flat to the Buyer(s).”

From a bare reading of the above clause, it is clear that the possession of the flat in question was to be given within a period of 18 months from the date of signing of the agreement by the buyers(s) i.e. before 7.6.2009. It is further clear from the above clause that the opposite party could claim extension for a period of six months subject to force majeure condition and also making timely payment by other flat buyers or subject to any other reason beyond the control of the company. However, the opposite party has failed to place on record any evidence to prove that due to force majeure or some other reasons, beyond its control, the project could not be completed timely and hence it is entitled for extension of six months. Accordingly, it is proved that the opposite party was under an obligation to complete the development/construction of the flat within a period of 18 months from the date of signing of the agreement i.e. upto 7.6.2009, but it failed to do so.

9.                           Annexure C-5 is an Addendum to Agreement dated 8.12.2007, which deals with the liability of the opposite party to pay Rs.5,400/- as monthly rental minus TDS. Relevant portion of the same is reproduced as under :-

“It is agreed between us that upon receipt of a sum of Rs.1276070.36/- (Rupees Twelve Lac Seventy Six Thousand Seventy & Paisa Thirty Six Only)  towards down payment, i.e. 95% of the basic sale price plus 50% of the additional charges in respect of the said unit from you, we shall pay a sum of Rs.5400/- (Rupees Five Thousand Four Hundred Only) (minus applicable TDS) per month (hereinafter referred to as said “Monthly Return”)  ………...”

In view of the above clause, it is amply clear that the opposite party was liable to pay Rs.5,400/- (minus applicable TDS) per month as agreed vide Annexure C-5, being assured monthly return from the date of receipt of the 95% of the Basic Sale Price till the date of issuance of letter of offer of possession.  Admittedly the possession has not been offered to the complainants till date.    However, on 1.10.2012 when the case was listed for arguments, ld. Counsel for the complainants gave a statement that the complainants have received the assured rental payment uptil June 2012 from the opposite party.  Hence, the opposite party shall be liable to pay the rental from the month of July 2012 only.

10.                       According to the ld. Counsel for the complainant, as per Clause 28(e), the opposite party was also liable to pay penalty @ Rs.5/- per sq. ft. of Super Area per month for the period of delay.  Clause 28 (e) is reproduced as under :-

“28(e)  However, in case of delay in construction of the said Apartment attributable to delay of Company subject to Clause (a) & (b) herein above, the Company would pay a sum at the rate of Rs.5/- (Rupees Five only) per sq. ft. of Super Area per month for the period of delay to the Buyer(s), provided however that the Buyer(s) has made payment of all installments towards the sale consideration amount of the said Apartment in time and without making any delay to the Company.”

11.                       The learned Counsel for the opposite party vehemently argued that it is not liable to pay the penalty @ Rs.5/- per sq.ft. of Super Area per month for the period of delay to the Buyer(s), as per Clause 28 (e) of the Agreement dated 8.12.2007 (C-4).  However, we do not find any merit in this argument of the ld. Counsel, as it has already paid monthly rental @ Rs.5,400/- per month, minus TDS, in view of addendum (C-5) to the agreement dated 8.12.2007.  The complainants made the payment of Rs.1,00,000/- on 22.11.2007 (C-3) and Rs.11,76,233/- on 31.3.2008(C-13). Thus, in total the complainants have made the payment of Rs.12,76,233/- to the opposite party. Thus, we are of the view that the opposite party is also liable to pay a sum of Rs.5/- per sq. ft. of super area per month for the period of delay to the complainants, as per Clause 28(e) of the Agreement, referred to above, which is separate from the amount paid under the addendum clause.

12.                       In view of the above discussion, the present complaint is allowed and the opposite party is directed as under :-

(i)      To pay the assured monthly return of Rs.5,400/-per month, minus TDS, as per terms and conditions contained in Annexure C-5, reproduced above, from July 2012 till the date of handing over the possession of the unit.

(ii)     To pay to the complainants penalty @Rs.5/- per sq.ft. of the super area per month due for the period from 7.6.2009 till date, and also keep paying the same every month till the actual physical possession of the flat is delivered.

(iii)    To pay a sum of Rs.50,000/- as compensation for mental and physical harassment suffered by the complainant

(iv)    To pay Rs.10,000/- as costs of litigation.

13.                       This order be complied with by the opposite party, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) to (iii) shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.

14.                       Similar directions are passed in the connected consumer complaint bearing C.C. No.500 of 2011.

15.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

01.10.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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