Delhi

StateCommission

CC/1419/2017

ANITA - Complainant(s)

Versus

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

NITIN GARG

12 Sep 2017

ORDER

N THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :12.09.2017

Date of Decision :15.09.2017

Complaint No.1419/2017

IN THE MATTER OF:

 

Smt. Anita,

W/o. Shri Suresh Kumar Garg,

R/o. Flat  No.79, Second Floor,

North Avenue-II, Omaxe City,

Bahadurgarh, Haryana-124507.                                                                         ……Complainant

                                                                        Versus

M/s. Omaxe Ltd.

Through its Managing Director,

Omaxe House,

7 Local Shopping Center,

Kalkaji, New Delhi-110019.                                                                      …..Respondent

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

 

Present:           Shri  Nitin Garg, Counsel for the complainant.

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          In this complaint filed by Ms. Anita, resident  of Bahdurgarh, Haryana, for short complainant, allegation, against M/s. Omaxe Ltd., hereinafter referred to as OP, is that the possession of the flat booked on 01.11.2007, was handed over as late as on 31.01.2017, despite the assurance to do so within a period of two years, causing considerable delay, leading to harassment and mental agony to him. There existed no justifiable reason for the delay. The complainant has prayed for the compensation.  Point for consideration is whether this Commission can rule in his favour when the possession of the flat has already been handed over.

 

          The facts of the case necessary for the disposal of the complaint, are these.

 

          Smt. Krishna Chawla and Shri Wazir Chand had booked a flat with the OP on 01.11.2007 after paying the booking amount of Rs.2,71,250/- on the understanding and assurance that physical possession of the flat so booked would be handed over within two years. Thereafter payment to the OP was made as per their demand.

 

          The OP after a period of about nine years allotted the flat no.79, 2^nd floor, North Avenue-II, Omaxe City, Bahadurgarh (Haryana) to the complainant and requested to comply with the formalities as per their letter dated 01.06.2012 and 19.09.2016 (Annexure L and M) of the complaint.

 

          During this period Shri Wazir Chand  died on 10.12.2010 and as a consequence thereof Shri Suraj Chawla stepped in. Agreement was thereafter executed between Smt. Krishan Chawla and Shri Suraj Chawla on the one hand and the OP on the other, on 23.9.216.

 

However on 29.09.2016 Smt. Krishna Chawla and Shri Suraj Chawla had transferred their rights in respect of the flat in question in favour of the complainant and the OP accepted the said transfer.

          Finally the possession of the flat was handed over to the complainant on 31.01.2017, although without executing the sale deed and without obtaining the occupancy  certificate from the concerned authority.

 

          After getting the possession of the flat, the complainant realized and noted that the construction quality is not upto the mark. Besides the OP is liable to pay the interest for the delay done in handing over the possession of the flat.

 

          Accordingly a complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986 praying for a direction to the OP to pay interest for the delayed period and also for executing the sale deed.

 

          This matter was listed before us for admission hearing on 12.09.2017 when the ld. Counsel for the complainant appeared and advanced his averments. We have perused the records of the case.

 

          In the first instance we note that the possession of the flat has already been handed over to the complainant. The ld. Counsel for the complainant was confronted with a question whether the possession of the flat in question was taken over unconditionally or with some reservation. He clarified that he is seeking interest for the delayed period in handing over the possession. To put in differently the complainant has taken the possession without any hick ups or conditions.

 

           It is a settled once law that only possession of the flat has been taken over, one is no longer a consumer in which case he would not be entitled to raise a consumer dispute. The Hon’ble NCDRC in the matter of Harpal Arya vs. Housing Board, Haryana – II(2016) CPJ 36 (NC) – has held:

“Once petitioner has taken over possession with open eyes and without any pre-condition, he ceases to be a consumer”.

 

          Similar view was taken by the Hon’ble NCDRC in the matter of Sonia Roy vs. Excel Construction – IV (2012) CPJ 2014.

 

          In the given case, the possession of the flat having been taken over, keeping in view the law laid down, the complainant would not be entitled to raise a consumer dispute.

 

          We order accordingly.

 

          Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.

File be consigned to records.

 

(ANIL SRIVASTAVA)                                                            (O.P.GUPTA)

MEMBER                                                                      MEMBER (JUDICIAL)