Haryana

StateCommission

CC/143/2019

AJAY VATS AND ANOTHER - Complainant(s)

Versus

M/S OMAXE LTD. - Opp.Party(s)

ARUN TAKHI

11 Jun 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Instituion:08.05.2019

                Date of final hearing:23.05.2024

                                                Date of pronouncement:11.06.2024

 

Consumer Complaint No.143 of 2019

 

IN THE MATTER OF

 

1.      Ajay Vats S/o Shri Satya Pal Vats,

2.      Narender Kumar Yadav S/o Shri Brij Lal Yadav.

 

Both residents of 171, Ward No.13, Railway Road, Bahadurgarh, District Jhajjar.                                                         

                             .….Complainants.

Through counsel Mr. Arun Takhi, Advocate

 

Versus

 

M/s Omaxe Ltd., Regd. Office at 7, Local Shopping Centre Kalkaji, New Delhi-110019, through its Managing Director.

….Opposite party.

Through counsel Shri Vishal Singhal, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Arun Takhi, counsel for the complainant.

Mr. Vishal Singhal, counsel for opposite party.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that opposite party (‘OP’) floated a housing project under the name & style Omaxe North Avenue-II situated at Bahadurgarh. In November, 2012 complainants booked a three bedroom residential apartment in the said project of OP by paying an amount of Rs.11,57,000/- to the OP vide receipt ID 801384 dated 26.11.2012. OP also issued customer code as BHNA/T3 to the complainants. Total cost of the said apartment was Rs.56,47,684/- Complainants paid entire cost of the apartment i.e. Rs.56,47,684/- to the OP on different dates prior to December, 2014 as per payment schedule. It was alleged that at the time of booking complainants were assured by OP that the physical possession of apartment shall be handed over within 24 months from the date of booking. However, the Apartment Buyer’s Agreement was also executed between the parties on 18.01.2014 after lapse of 24 months from the date of booking. Moreover, the said agreement was forcibly got signed by the OP and as per clause 33 (a) of the agreement the OP shall complete the construction of unit within 18 months from the date of signing of agreement with an extended period of six months instead of from the date of booking. It was alleged that at the time of booking, almost all the basic structure was ready and there was no chance/scope of extension of its built up area but the OP later on compelled to pay 10% of increase in the build-up area. It was further alleged that as per clause 33 (e) of the agreement, in case of delay in handing over the possession of unit in question, the OP would be liable to pay a sum of Rs.5/- per sq. ft. per month of the super area for the delayed period. It was further alleged that since the total cost of unit in question has been paid by the complainants, but OP failed to deliver the possession of unit in question and thus, there is deficiency in service on the part of OP and it would be liable to pay the deposited amount of Rs.56,47,684/- with interest @ 9% p.a. till realization. Further, the complainant prayed for an amount of Rs.50,000/- for harassment and mental agony and Rs.50,000/- as litigation expenses and other reliefs as prayed for.

2.                Notice of the complaint was issued against the OP, upon which it appeared and filed its written statement and submitted therein that the complaint is not maintainable as the complainants are not consumers but they are investors who applied for unit in question for earning benefits and not for t residential purpose of their own. Further, the OP also took objection regarding pecuniary jurisdiction. However, it was admitted that the complainants booked a three bedroom residential apartment in the project of OP and OP also issued customer code as BHNA/T3 to the complainants. Residential unit No.BHF/S4/MAPLE/THIRD/302 measuring 1795 sq. ft. was allotted to complainant having total cost of Rs.66,42,541/- against which complainants have made a payment of Rs.53,17,683/- only. Apartment Buyer’s Agreement was executed on 18.01.2014.  It was submitted that as per the said agreement, it is nowhere mentioned that the possession would definitely be delivered within 24 months. Moreover, the complainants have never approached the OP for possession.  It was further submitted that OP had already offered the possession on 12.10.2016 and complainants are liable to pay a sum of Rs.10,32,918/- to the OP. Apart from this the complainants have already given an exorbitant discount of Rs.3,30,000/- in total cost of unit by waiving off the substantial interest on delayed payments by the complainants.

3.                It was further submitted that as per offer letter dated 12.10.2016 an amount of Rs.9,94,857/- is still pending towards the complainant on account of increase of super area from 1650 sq. ft. to 1795 sq. ft. It was further submitted that there was no delay in possession by the OP rather the complainants themselves are defaulters in making the payments. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the OP and prayed for dismissal of the complaint.

4.                When the complaint was posted for recording evidence of the parties, learned counsel for complainants has tendered in evidence affidavit of Shri Ajay Vats as Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-9 and closed the evidence on behalf of complainants.

5.                On the other hand, learned counsel for OP has tendered into evidence affidavit of Shri Deepanjit Singh, Authorized Signatory of OP as Ex.OP-A alongwith other documents Ex.OP-1 to Ex.OP-9 and closed the evidence on behalf of OP.

6.                The arguments have been advanced by Mr. Arun Takhi, learned counsel for the complainants and Mr. Vishal Singhal, learned counsel for OP. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint have been properly perused and examined.

7.                As per the basic averment raised in the complaint and including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get refund of amount along with interest, which the complainants have deposited with the OP or not? 

8.                While unfolding the arguments, it has been argued by Mr. Arun Takhi, Advocate, learned counsel for the complainants that complainants booked a three bedroom residential apartment/unit in the project of OP in November, 2012 by paying an amount of Rs.11,57,000/- to the OP vide receipt ID 801384 dated 26.11.2012 against which OP also issued customer code as BHNA/T3 to the complainants. He further argued that complainants paid an amount of Rs.56,47,684/- to the OP on different dates prior to December, 2014 as per payment schedule. He further argued that at the time of booking complainants were assured by OP that the physical possession of apartment shall be hand over within 24 months from the date of booking. However, the Apartment Buyer’s Agreement was also executed between the parties on 18.01.2014 after the lapse of 24 months from the date of booking. He further argued that the period within which, the possession of the unit was to be delivered has already expired despite complainants having deposited an amount of Rs.56,47,684/-, but the OP failed to deliver the possession of unit/apartment in question. In these circumstances, the complainants had no other option, but, to seek refund of the amount alongwith interest, which she had already paid, as they do not think that OP will be able to put her into possession of the apartment. 

9.               On the other hand, Mr. Vishal Singhal, learned counsel for OP has argued that the complainants booked a three bedroom residential apartment in the project of OP and OP also issued customer code as BHNA/T3 to the complainants. Residential unit No.BHF/S4/MAPLE/THIRD/302 measuring 1795 sq. ft. was allotted to complainant having total cost of Rs.66,42,541/- against which complainants have made a payment of Rs.53,17,683/- only. Apartment Buyer’s Agreement was executed on 18.01.2014.  He further argued that as per the said agreement, it is nowhere mentioned that the possession would definitely be delivered within 24 months. Moreover, the complainants have never approached the OP for possession.  He further argued that OP had already offered the possession on 12.10.2016 and complainants are liable to pay a sum of Rs.10,32,918/- to the OP. Apart from this the complainants have already given an exorbitant discount of Rs.3,30,000/- in total cost of unit by waiving off the substantial interest on delayed payments by the complainants. He further argued that there was an increase in super area from 1650 sq. ft. to 1795 sq. ft. of unit in question and this fact was duly acknowledged to the complainants vide offer letter dated 12.10.2016 and an amount of Rs.9,94,857/- is still pending towards the complainants. Finally he argued that there is no deficiency in service on the part of OP.

10.             In view of the above submissions and after careful perusal of the entire record, it stands proved that upon floating a housing project under the name & style Omaxe North Avenue-II situated at Bahadurgarh complainants applied for three bedroom residential apartment in the month of November, 2012 by paying an amount of Rs.11,57,000/- vide booking receipt ID 801384 dated 26.11.2012 (Ex.C-2) and OP allotted a unit No.302, 3^rd Floor, In Maple Tower, measuring 1650 sq. ft. to the complainants.  It also stands proved as well as admitted that at the time of booking basic sale price of said apartment/unit was Rs.54,87,800/- and total sale price was Rs.59,93,800/-. Complainants adopted a construction linked plan. Apartment Buyer’s Agreement dated 18.01.2014 also stands proved. As per the agreement, the OP shall complete the construction of unit within 18 months from the date of signing of agreement with an extended period of six months, complete in all respects subject to some reservation. To the utter surprise of this Commission, it is quite baffling to note as to how inspite of the fact that a period of more than 4 years had expired, the possession of the apartment has not been delivered in time to the complainants by OP and moreover there was in increase in the super area from 1650 sq. ft. to 1795 sq. ft. without any consent of the complainants.  As such, there was a clear breach of terms and conditions of the Apartment Buyer’s Agreement on part of the OP. It is the normal trend of the developers that a developer would collect their hard earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed. Resultantly, completion of the project and the delivery of possession is delayed as has happened in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service on the part of OP and complainants are well within their legal rights to seek refund of the amount which they had deposited with the OP. Even otherwise also, there is a strong element of physical and mental agony caused to the complainants for their having invested a huge amount and still being deprived of and not being put into possession of the flat and under these constrained circumstances, they had to knock at the door of this Commission even for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

11.              As regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been revision of lending rate by the Nationalized banks. Accordingly, it would, in considered view of this Commission, be just fair and reasonable to award 9% as the rate of interest to the complainant.

12.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP is directed to refund the deposited amount of Rs.56,47,684/- (Rs.Fifty six lacs forty seven thousand six hundred eighty four only) alongwith interest @ 9%  per annum to the complainants from  the date of its respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would be entitled to get the interest @ 12% per annum, for the defaulting period. The complainant is also entitled to a sum of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony.  In addition, the complainants are also entitled to an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation expenses. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

13.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

14.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

15.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 11^th June, 2024

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III        

 

 

R.K