Delhi

StateCommission

CC/97/2015

NARESH KUMAR BHASIN - Complainant(s)

Versus

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

23 Jul 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments:23.07.2019

Date of Decision:  02.08.2019

COMPLAINT NO.97/2015

In the matter of:-

 

Naresh Kumar Bhasin,

4/19, Single Storey,

Ramesh Nagar,

•  

Versus

M/s. Omaxe Ltd.,

Regd. Office: 7 Local Shopping Centre,

Kalkaji, New Delhi-110019.  …....Opposite Party

CORAM

    Sh. O. P. Gupta, Member (Judicial)

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

 Sh. O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The  case of the complainant is that he booked a residential flat measuring 1164 @1300/- per sq. ft. under Construction Linked Plan to be built up in ‘River Oak Tower’, Sonipat, Haryana. Total cost of the flat was collected as Rs.21,98,960/. He paid Rs.5,00,500/- at the time of booking. Priority no.389 was endorsed from Smt. Gomati Sharma in his favour. The complainant had deposited Rs.19,25,920/- till filing of the  complaint. He preferred flat at the first floor as he had been suffering from disk slip. OP agreed to the same and allotted flat no.104 on First Floor. Construction was promised to be completed within 3 years.
2. Vide letter dated 04.12.07 OP informed that he had been allotted flat no.503 on 5^th Floor  in Milestone Tower instead of flat no.104 in River Oak Tower. The new location of Milestone Tower was much inferior than that of the River oak Tower. The demand of preferential location charges was not justified. There was no construction till 2009. Later on another Tower named ‘Swarnprastha Floor’  was started in 2011 which was completed by OP in just two years  and the said flats have been sold out in 2013 in the range of Rs.2,500/- to Rs.3,000/- per sq. ft. He raised objections to such purported  change in allotment vide letter dated 04.12.07 followed by email dated 21.12.08 and 26.02.08, letter dated 12.03.08. The OP vide email dated 12.03.08 confirmed that they had not constructed River Oak Tower.
3. OP assured him that it did not have a spare unit at the first floor at similar location and whenever it will have, it will do the same. Believing the assurances, complainant continued payment of installments. In letter prior to 11.01.10 the flat no.503 was described on first floor. It was in the letter issued on 11.01.10 and subsequent letters that the address was changed to 5^th Floor. By that time the OP had collected Rs.15,01,560/-. Vide letter dated 18.01.13 OP threatened the complainant to cancel the transaction if the complainant did not pay Rs.2,04,360/- with interest of Rs.2,50,861/- within 10 days. The complainant was compelled to make minimum payment of Rs.2,04,360/-. The OP intimated vide letter dated 12.06.13 that it had received occupancy certificate. It offered possession of the flat and sought balance payment. Vide letter dated 24.06.13 OP asked him to sign maintenance  agreement with ‘Shanvi Estate Management Service Pvt. Ltd.’. OP issued several letters demanding balance of Rs.3,69,047/-. The area of the flat had been arbitrarily enhanced by the OP from 1164 sq. ft. to 1216 sq.ft.  Certain new levies were slapped  vide enhanced external and internal development charges, meter cost. Hence this complaint for refund of Rs.19,25,920/- with interest @24% per annum amounting to Rs.29,94,621/-, compensation of Rs.25 lakhs and litigation cost of Rs.1,10,000/-. In all he has claimed Rs,75,30,541/-.
4. OP filed WS raising preliminary objections that complainant is merely an investor. Relation of consumer and service provider did not come in existence. This Commission lacks territorial jurisdiction as subject property is situated at Gautam Budh Nagar, UP. The complainant had committed defaults. The complaint is barred by limitation. Complaint is fall of complex facts and complicated question of law which required detailed evidence, examination and cross examination of witnesses which cannot be done in summary proceedings under Consumer Protection Act. There was no specific choices for any particular unit given by the complainant. Complainant made certain payments after the change of flat number. On merits the OP took same defence. It prayed for dismissal of the complaint.
5. The complainant filed his own affidavit in evidence. Similarly the OP filed affidavit of Shri Pawan Aggarwal, AR in evidence. Both the parties have filed written arguments.
6. I have gone through the material on record and heard the arguments. The counsel for complainant urged that OP cannot compel it to accept possession after more than 7 years of booking. He also submitted that change of Tower and change of floor  cannot be forced upon him.
7. On the other hand the counsel for OP submitted that agreement did not provide for any period  within which the construction was allegedly to be completed. Even if that is so, the OP is expected to complete the project within the reasonable period which is 3 years.
8. The OP itself has pleaded that it offered the possession in 2013. It received the occupancy certificate on 09.10.12.
9. The counsel for OP submitted that complainant has impliedly consented to the change of flat and tower by continuing to make payment even after intimation about change. Even if that is so, the OP cannot compel him to accept belated possession.
10. The OP is self confused about the location of the flat. Flat booked was in Sonipat. OP has taken an objection that the flat was in Gautam Budh Nagar, UP which is contrary to record. In any event the registered office of OP is in Delhi and so this Commission has got territorial jurisdiction.
11. The complaint is allowed and OP is directed to refund Rs.19,25,920/- alongwith interest @10% per annum from the date of respective payments till the date of refund.
12. Copy of the order be sent to all the parties free of cost.
13. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)