Delhi

StateCommission

CC/106/2019

RAVINDRA KUMAR SITANI - Complainant(s)

Versus

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

ANAND VERDHAN MAITERYA

12 Sep 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:12.09.2019

 

                                                                   Date of decision:18.09.2019

 

Complaint No.106/2019

 

 

IN THE MATTER OF

 

Ravinder Kumar Sitani

R/o 11/4, Chemical Staff

Colony, Birlagram,

Nagda-456331 (M.P.)….Complainants

 

VERSUS

 

M/s Omaxe Ltd.

Omaxe House,

7, Local Shopping Centre

Kalkaji, New Delhi                                                          .…Opposite Parties

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?                Yes     

 2.   To be referred to the reporter or not?                                                                     Yes

 

                           Present:         Sh. Anand Vardhan, Counsel for the complainant

                                                   Sh. Dhruv Kapoor, Counsel with Sh. Vipin Sharma AGM for the OP Company

 

ANIL SRIVASTAVA, MEMBER

 

JUDGEMENT

1.             Refund of the deposited amount as prayed by for Sh. Ravinder Kumar Sitani, resident of Nagda, Madhya Pradesh not having been done by the OPs, gave rise to filing of this Complaint, for short complainant, which complaint was originally filed before the District Forum but later keeping in view the point of pecuniary jurisdiction, was filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, against the M/s Omaxe Ltd., hereinafter referred to as OPs, alleging deficiency of service against the OPs the possession of the flat not having been handed over within the time as agreed to and unfair trade practice they having retained their hard earned money for no useful and gainful purpose and praying for the relief as under:-

 

In view of the above it is most respectfully prayed that this Hon’ble Commission may be pleased to:-

 

1. Pass the order directing the respondent to refund Rs. 5,77,500 to the complainant alongwith in.
2. Direct the respondent to pay compensation of Rs. 5 lacs to the complainant for the loss suffered by the complainant as mentle harassment.
3. Pass such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.

 

2.             Facts of the case necessary for the adjudication of the complaint are these.
3.             The complainant had booked one flat No. BHF/S4/CELSIA/Second in Omaxe North Avenue-II situated at Sector-15 Bahadurgar consisting of three bedrooms apartment admeasuring approx 1650 sq. ft. in the name of himself and his wife Smt. Manju Sitani and for this purpose the complainant had deposited the earnest amount of Rs. 5,77,500 against the allotment of above referred flat. Rs. 2,71,250 was deposited in the month of October, 2007 and Rs. 3,06,250 was deposited in the month of May 2008 against the allotment.
4.             Terms and conditions relevant for the purpose of adjudication of the complaint are these.

 

The applicant has examined the tentative plans, designs, and specifications of the Residential flat and has agreed that the company may effect such variations and medications therein as may be necessary or as it may appropriate and fit in the best interest of the project or as may be done by any competent authority. The necessary changes/alterations may involve change in position/location of the residential flat, change in its dimensions or area etc. however, in case of increase beyond 10% of the allotted area, the applicant shall be liable to pay for the balance increased area at the prevalent rate of the company.

The applicant agrees that the amount paid with the application and in instalments as the case may be, to the extent of 20% of sale consideration of the Residential Flat shall collectively constitute the earnest money.

Timely payment of instalments of basic sale price, preferential location charges and other additional charges pertaining to the Residential Flat is the essence of the terms of the booking/allotment. However in the event of breach of any of the terms and conditions of the allotment by the applicant, the allotment will be cancelled at the discretion of the company and the earnest money together with any interest on the instalments due but unpaid and interest on delayed payment shall stand forfeited. The balance amount shall be refundable to the applicant without any interest, after the said Residential Flat is allotted to some other intending applicant and after compliance of certain formalities by the applicant. The company, however, in its absolute discretion any condone the delay by charging penal interest @ 18% p.a. for upto one month delay from the due date of payment and @ 24% p.a. thereafter on all outstanding dues from their respective due dates.

 

5.             It is evident that as per clause 17 of the terms and conditions the possession of the flat was to be done within 30 months from the date of execution of the Buyer’s Agreement and after such extended time in the event of any unexpected circumstances but not beyond six months. The complainant had inquired about the development of the project and found that there was no development on the site.
6.             Later the complainant having been posted at Renukoot migrated there, the intimation of which was sent to the OPs also. However noticing no progress in the project the complainant addressed a communication to the Ops on 17.04.2012 requesting for refund of the deposited amount with 24% interest. The extracts of the letter are as under:-

 

With reference to my earlier communication dated 28^th August 2009 wherein I have requested that your construction plan is getting delay and I am not getting proper response from your side, now suddenly received a letter dated 23^rd March 2012 demanding instalment with an interest of Rs. 1,18,407/-

As you are aware that I have deposited the first instalment almost 4 ½ years back i.e. October 2007 and second instalment in May 2008, now I request you to please refund my money with the same interest rate, which you have applied and send a cheque/demand draft immediately, otherwise I have no other alternative but to knock the door of consumers Forum to seek my refund.

In addition to above, it is also a matter of regret that earlier you have offered the house of High Rise Towers and without any information and after taking two instalments from customer, you have changed your complete plan and converted into CHAWL construction i.e. Low Height with back to back flats which is not all acceptable to me.

With the above, I request you once again to kindly refund my money with 18% interest immediately.

 

7.             Refund having not been done as sought for led to filing of this complaint for the redressal of the grievances. OPs were noticed and in response thereto they have filed their written statement resisting the complaint stating that the allotment was provisional subject to alternation. Secondly the change of the edifice done was on the request of the complainant. Thirdly the complainant defaulted in making the payment. He was requested to make the payment by way of letters followed by reminders but of no avail. The OPs having found no response from the complainant despite several reminders, the allotment was cancelled and the earnest money was forfeited vide letter dated 07.07.2012 as per agreed terms of the agreement. They have further submitted that the project was complete in all respect and possession of the flats have already been offered to other flat owners.
8.             The cancellation letter so issued is reproduced below:-

 

In light of the above, your allotment of Flat No. 202, Celsia Tower, at Omaxe North Avenue-II, Bahadurgarh has been cancelled due to your persistent default in payment. Although as per clause 5 & 6 of your executed application form, the company is entitled to forfeit the earnest/booking amount of 20% of sale consideration, i.e., Rs. 5,61,500/-, however as a goodwill gesture, the company is ready and willing to refund of total paid amount of Rs. 5,77,500/- without any interest after compliance of necessary formalities by you.

 

9.             The complainant has thereafter filed the rejoinder rebutting the contentions raised and reiterating the averments contained in the complaint. Evidence by way of affidavit has been filed. Written arguments are on record.
10.             This complaint was listed before this Commission for final hearing on 12.09.2019 when the counsel from both sides appeared and advanced their arguments in terms of their pleadings, the complainant for the refund of the deposited amount with 24% interest, the possession of the flat not having been handed over, and the OPs for dismissal of the complaint as the complainant was found to be defaulter and thus not entitled for any indulgence and, secondly, refund, if ordered, be subject to forfeitures as per the terms and conditions of the allotment. I have read and re read the contents of the complaint and the records of the case and given a thoughtful consideration to the subject matter.
11.             In the first instance the arguments of the OPs that the change in the allotment was done relying on the clause 4 of the terms and condition cannot be accepted since change, if any, even if permissible,  has to be with the explicit consent of the complainant and in no way unilaterally. However this point has however no relevance as of now since only the refund of the amount is sought for.
12.             Short question for adjudication in this complaint is whether refund as prayed for by the complainant can be done without enforcing the forfeiture clause as vehemently pressed for by the OPs. The complainant takes the plea that he was never issued the demand letter on his changed address, the intimation of which according to him was sent to them and thus the payment was not made. This argument cannot sustain as the complainant also took no steps for depositing the instalments regardless of the receipt of the demand letter or otherwise. This leads to an inevitable and inescapable conclusion that the complainant is indisputably defaulter but the point for consideration is whether the default can be treated deliberate or inadvertent. On the face of the case it cannot be fully concluded that the act was deliberate. If that be the case, the point that survives is whether refund can be done without the forfeiture notwithstanding the terms and condition.
13.             At this stage, I may advert to the cancellation letter containing a clause to refund the amount without interest. In the facts and circumstances of the case when the complainant has also been defaulter I am of the considered view that the ends of the justice would be met if a direction is issued to the Ops to refund the principal amount without enforcing any forfeiture. Infact the OPs have already volunteered to do so in their cancellation letter.
14.             Ordered accordingly.
15.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

 

(ANIL SRIVASTAVA)​

Member