DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:1347 of 2009] Date of Institution : 29.09.2009 Date of Decision : 30.03.2012 ---------------------------------------- Sh. Sanjay Batra son of Sh. B. K. Batra resident of Flat No.31, Sangam Enclave, Sector 48-A, Chandigarh, Permanent resident of Swarn Kunj, Jakhoo Temple Road, Shimla (H.P.). ---Complainant. VERSUS[1] M/s Omaxe Limited, SCO No.143-144, Sector 8-C, Chandigarh through its authorised representative. [2] M/s. Omaxe Limited, Omaxe House 12, L.S.C. Kalka, New Delhi, through its Managing Director. ---Opposite Parties.BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Ms. Savita Saxena, Advocate for the complainant. Sh. Munish Gupta, Advocate for the OP. PER JASWINDER SINGH SIDHU, MEMBER 1. Briefly stated the case of the complainant is that he booked a flat with the OPs in a Group Housing Society known as “Omaxe Parkwood” at Baddi, Tehsil Nalagarh, Distt. Solan. The OPs allotted him a flat bearing No.103 (First Floor) in Tower Chinar-A measuring 1566 Sq. Feet, vide allotment letter (Annexure C-6). An agreement (Annexure C-5) was executed between the parties on 18.07.2007 regarding the sale of the said flat. As per the terms of the said agreement, OP agreed to sell the above said flat to the complainant for a sum of Rs.22,29,201/-. At the time of booking, the complainant paid a sum of Rs.3,75,000/- vide receipt No.222331 dated 12.05.2006 (Annexure C-4). It is averred that OPs also sent him an intimation of due installments vide letter dated 19.5.2007 (Annexure C-14) wherein it was informed that OPs had shifted their project Omaxe Parkwoods, Baddi from Delhi Head Office to Regional Office at Chandigarh and for any further correspondence, the complainant was told to approach Chandigarh Regional Office of OPs. According to the complainant, he made all the payments without any default and by June, 2008, the entire demanded sum of Rs.20,93,780/- was made to the OPs. It is next averred that OPs also gave ‘No Due Certificate’ to the complainant vide their letter dated 22.12.2010 (Annexure C-18) as against the full and final payment of the said Flat No.103 allotted to the complainant. As per Clause 28(a) of the agreement executed between the parties, the possession of the said flat was to be offered within 18 months (with further provision of another 6 months) from the date of agreement. According to the complainant, the OPs were supposed to handover the possession of the said flat in any case by the month of August, 2009, which includes six months of extended period. The complainant has also placed on record photographs (Annexure C-7 to C-11) as per which the in order to show the status of construction of the flats, which were incomplete He also requested the OPs a number of times to handover the possession of the flat allotted to him but they failed to handover the same. Consequently, the complainant served a legal notice dated 25.07.2009 upon the OPs, which was duly replied by the OPs vide their reply dated 24.08.2009. According to the complainant, non- handing over the possession of the said flat by the OPs amounts to deficiency in service and unfair trade practice on their part. In these circumstances, the present complaint has been filed seeking the following directions to the OPs :- (i) to handover the possession of the allotted flat to the complainant along with a certified report from a Chartered Engineer mentioning completion of the flat as per the specifications given at the time of selling the same and further that the society would be safe and livable for a family with all basic facilities like sewerage and electricity connection etc; (ii) to pay interest to the complainant @18% per annum on Rs.20,93,780/- from June 2008 up to August 2009 calculated to Rs.4,71,100/- with future interest at the same rate till the possession of the flat; (iii) To pay Rs.8,000/- per month on account of rent paid by the complainant from June 2008 till June 2009 and Rs.11,000/- per month from July 2009 till September 2009 and thereafter at the rate of Rs.13,000/- per month till the possession of the flat; (iv) to pay a sum of Rs.2,00,000/- as compensation for physical harassment and mental agony or (v) refund the entire amount deposited with the OPs along with interest @18% per annum plus compensation along with the compensation of Rs.2 Lacs already prayed for; (vi) to pay a sum of Rs.20,000/- as costs of litigation; (vii) any other relief, which the Forum deems fit in the facts and circumstances of the case. 2. In the written statement filed by OPs, a preliminary objection as regards the territorial jurisdiction has been raised. According to OP, no cause of action has accrued to the complainant at Chandigarh and merely having a branch office of OPs at Chandigarh does not bring the dispute within the territorial jurisdiction of this Forum. On merits, the facts regarding execution of the agreement for the sale of flat bearing Unit No.103 in Tower Chinar-A situated at “Omaxe Parkwood” at Chakkan & Bilanwali, Gujran, Tehsil Nalagarh, Distt. Solan for Rs.22,29,201/- has been admitted. It has also been admitted that the OPs received a sum of Rs.20,93,780/- from the complainant against the total amount due of Rs.24,35,521/-. It has been specifically denied that the possession of the flat could not be offered at the relevant time. However, it is pleaded that since June 2008, no payment has been made by the complainant. According to the OPs, the possession of the flat in question would be delivered shortly to the complainant as and when the balance amount as due towards him is paid to the OPs. It is further asserted that no monetary loss has been caused to the complainant rather by making default of timely payments the project of OPs has been delayed. 3. Parties led their respective evidences. 4. Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsels for the parties, we have come to the following conclusions. 5. The first argument advanced by the learned counsel for the OPs is that this Forum has no territorial jurisdiction to entertain and decide this complaint. According to the learned counsel for the OPs, the flat regarding which the agreement was executed is situated at Baddi, Distt. Solan (Himachal Pradesh). The payment was made at Delhi and the agreement was also executed at Delhi. Thus, no cause of action accrued at Chandigarh. Therefore, merely because the OP has its Branch Office at Chandigarh would not confer jurisdiction to the District Forum at Chandigarh. In support of his argument, the learned counsel for the OP has cited case titled Sonic Surgical Vs. National Insurance Company Limited reported in IV (2009) CPJ 40 (SC). To our mind, the ratio of this case is not applicable to the facts and circumstances of this case. In the present case, a part of cause of action had accrued to the complainant at Chandigarh. Annexure C-14 is the letter dated 19.05.2007 vide which the OPs informed the complainant that they had shifted their project Omaxe Parkwoods, Baddi from Delhi Head Office to Regional Office at Chandigarh and for any further correspondence, the complainant was told to approach Chandigarh Regional Office of OPs. The complainant was even instructed to make timely payment of installments and other charges in essence of the terms of the allotment at their Regional Office at Chandigarh. Thus, from this letter (Annexure C-14), it is apparent that a part cause of action had accrued to the complainant at Chandigarh, so the District Forum at Chandigarh has the jurisdiction to entertain and decide this complaint. 6. However, one more aspect that has flowed from the relief claimed by the Complainant is that as the Complainant has made the entire payment to the tune of Rs.20,93,780/- and has demanded either the possession of the flat in question or in the alternate refund of the entire payment made by him, along with interest @18% p.a. The Complainant has further prayed for compensation to the tune of Rs.2,00,000/- citing deficiency in service, mental harassment. The OPs while contesting the issue of jurisdiction has only talked about the territorial jurisdiction in para 1 of preliminary objections; whereas, no objection has been raised with regard to the pecuniary jurisdiction of this Forum. But in the present circumstances, it would not be just for us to entertain the present Complaint, as the value of the flat in question, along with the compensation, claimed by the Complainant, has exceeded the jurisdiction of this Forum as per Sec.11(1) of the Consumer Protection Act, 1986. Hence, we dismiss the present complaint on this score alone, with the liberty to the Complainant to file the present complaint, on the same cause of action, with the court of competent jurisdiction, within 30 days, from the receipt of certified copy of this order, if he desires so. 7. The parties are left to bear their own costs. 8. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 30th March, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU)
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | |
