BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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1.       Vivek Jain son of Sh.Junninder Kumar Jain r/o H.No.3228/1, Sector 40-D, Chandigarh.

2.       Raman Jain (mother of complainant No.1) wife of Sh.Junninder Kumar Jain r/o H.No.3228/1, Sector 40-D, Chandigarh.

                                                                   …..Complainants

                                      V E R S U S

M/s Omaxe Limited (formerly Omaxe Construction Limited) a company registered under the companies Act, 1956 having its Regional Office at SCO No.143-144, Sector 8-C, Madhya Marg, Chandigarh – 160018, through its Director/Branch Head.

2^nd Address :

Registered Office Omaxe Limited, 7, Local Shopping Centre, Kalkaji, New Delhi – 110019.

                                                                             ……Opposite Party

CORAM:     SH.P.D.GOEL                                              PRESIDENT

                   SH.RAJINDER SINGH GILL                       MEMBER

DR.(MRS.) MADANJIT KAUR SAHOTA     MEMBER

Argued by:    Sh.Deepak Aggarwal, Counsel for complainants.

                          Sh. Munish Gupta, Counsel for OP.                      

PER P.D. GOEL, PRESIDENT

1.                Briefly stated, the facts of the case are that the OP allured the complainants for the purchase of the apartments under the Group Housing Project on the land situated in the Revenue Estate of Villages Chakkan and Billanwali – Gujran, Pargana, Dharampur, Tehsil Nalagarh, District Solan (HP) and also assured to complete the project within a period of 18 months. The complainants also got attracted from the promises and projections in the brochure for “OMAXE TURNING DREAMS INTO REALITY”, so filled the application form and deposited a sum of Rs.1 lac vide cheque No.661881 dated 9.11.2007. Thereafter, an agreement dated 8.12.2007 was signed between the parties for allotment of a flat bearing No.312 in Kachnar C-Tower on 3^rd floor having super area of approx. 89.46 sq.mt./963 sq. ft. On the same date, Addendum to Agreement dated 8.12.2007 was also added. It was agreed between the parties that OP upon receipt of a sum of Rs.12,76,070.36 towards down payment i.e. 95% of the basic sale price plus 50% of the additional charges shall pay a sum of Rs.5400/- per month. The complainants in total deposited a sum of Rs.12,76,070.36 with the OP but no offer of possession was made till date.

                   It has been further stated that when the complainants visited the site, it was noticed that the construction work had not started. They requested the OP for the possession of the flat and also requested for the payment of Rs.5400/- as per agreement. The complainants sent several emails to the OP but to no avail. 

                   It has been further stated that the complainants made the payments as per the demands raised by OP. The OP was under obligation to provide internal and external services within the peripheral limits of the colony. The OP also promised to provide certain amenities i.e. community buildings and common facilities as mentioned in their brochures but till date nothing had been done and without those facilities and amenities, the complainants are unable to construct the house on the land within the stipulated period. It has been further stated that till date, the OP failed to obtain the completion certificate from the competent authority, proper electricity connection from the Electricity Department, No Objection Certificate from the various Government Authorities and also failed to complete the internal development work. The complainants visited the office of the Ops numerous times but to no avail. Hence, this complaint.

2.               OP filed the reply. The preliminary objections with regard to jurisdiction and the complainants are not a consumer were raised. On merits, it has been pleaded that the complainants of their own applied for booking of the flat and deposited the requisite amount. An agreement was entered into between the parties and flat bearing No.312 was provisionally allotted in favour of the complainants. It has been further stated that as per the request of complainants, addendum to agreement dated 8.12.2007 was added.

                   It has been denied that the construction of Kachnar- C Tower has not started. The complainants have admitted the receipt of payment of Rs.5400/- per month uptill November, 2010. The allegations that thereafter no payment has been made is denied. The complainants shifted to Bangalore and no change in address was ever intimated to the OP. The physical possession will be offered to the complainants expeditiously. Denying all the material allegations of the complainants and pleading that there has been no deficiency in service on its part and prayer for dismissal of the complaint with exemplary costs has been made. 

3.                Parties led evidence in support of their contentions.

4.                We have heard the learned Counsel for the parties and have also perused the record. 

5.                The learned Counsel for the complainants contended that as allured by the OP, the complainants submitted an application for the purchase of the apartment under the Group Housing Project “OMAXE TURNING DREAMS INTO REALITY” with the OP. The OP agreed to complete the project within a period of 18 months. The amount of Rs.1 lac was deposited vide receipt dated 22.11.2007 – Annexure C-3. An agreement dated 8.12.2007 – Annexure C-4 was executed between the parties and a flat bearing No.312 in Kachnar C-Tower on 3^rd floor having super area of approx. 89.46 sq.mt./963 sq.ft. was allotted to the complainants. It was further argued that an Addendum to Agreement dated 8.12.2007 – Annexure C-5 was also added. It was further argued that the OP upon receipt of a sum of Rs.12,76,070.36 towards down payment i.e. 95% of the basic sale price plus 50% of the additional charges paid a sum of Rs.5400/- per month. The payment of Rs.2,76,070/- was made vide receipt – Annexure C-21. That in toto, the amount of Rs.12,76,070.36 was paid to the OP. It was further argued that no offer of possession was made to the complainants within the stipulated period.  On visit to the site, it was found that the construction work had not started. It was lastly argued that the OP failed to provide the internal and external services and certain amenities as promised. The OP has failed to deliver the possession of the flat.

6.               The learned Counsel for the OP outrightly conceded that an Agreement was entered between the parties and flat bearing No.312 was provisionally allotted.  It was also conceded that Addendum to Agreement – Annexure C-5 dated 8.12.2007 was added.  The learned Counsel for the OP further argued that the construction of Kachnar- C Tower had not started, so the OP has made the payment of Rs.5400/- per month uptill November, 2010. It was lastly argued that the physical possession will be offered to the complainants expeditiously.

7.                Annexure C-4 is the Agreement dated 08.12.2007 executed between the parties, which contains Clause No.28 at page No.56 of the complainant’s evidence, which reads as under :-

 “That the Company shall endeavor to complete the development construction of the flat within 18 months from the date of signing this agreement by the Buyer(s) or within an extended period of six months, subject to force majeure conditions (as mentioned in Clause (b) hereunder) and subject to other Flat Buyer(s) making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Flat to the Buyer(s).”

8.                Now, it is clear that the possession of the flat in question was to be given within a period of 18 months from the date of signing of the agreement by the buyers(s) in the instant case on 7.6.2009. As per Clause 28 (a), referred to above, the OP can claim the extension of period of six months subject to force majeure condition and also making timely payment or subject to any other reason beyond the control of the company. In this case, it is not an admitted fact that the complainants have made the payment in time. The OP has failed to place on record any evidence to prove that due to force majeure or some other reasons beyond its control, it is entitled for the extended period of six months. Thus, we are of the opinion that the OP was under obligation to complete the development/construction of the flat within a period of 18 months from the date of signing of the agreement i.e. upto 7.6.2009, which it had failed to do. Thus, it is held that the OP has failed to give the possession as stipulated in the said agreement.  Annexure C-5 is an Addendum to Agreement dated 8.12.2007, which deals with the liability to pay Rs.5400/- minus TDS. Its relevant portion is reproduced as under :-

“It is agreed between us that upon receipt of a sum of Rs.1276070 towards down payment i.e. 95% of the basic sale price plus 50% of the additional charges in respect of the said unit from you, we shall pay a sum of Rs.5400/- (minus applicable TDS) per month (hereinafter referred to as said “Monthly Return”) .”

9.                 The learned Counsel for the OP outrightly conceded that since the OP has failed to deliver the possession in time, therefore, it is liable to pay Rs.5400/- (minus applicable TDS) per month as agreed qua Annexure C-5 being assured monthly return.

10.              The learned Counsel for the OP also conceded at bar that the complainants had made the payment of   Rs.12,76,070.36, so thereafter, the OP was liable to pay Rs.5400/- minus TDS per terms and conditions of Annexure C-5. The learned Counsel for the OP also stated that the OP has paid the amount of Rs.5400/- minus TDS to the complainants upto November, 2010 and the said fact was not contested by the learned Counsel for the complainants. In view of this, the OP is directed to pay                    Rs.5400/- minus TDS, per terms and conditions contained qua Annexure C-5 from December, 2010 onwards till the possession of the flat is delivered.

11.              The learned Counsel for the OP vehemently argued that the OP is not liable to pay the penalty @ Rs.5/- per sq.ft. of Super Area per month for the period of delay to the Buyer(s), as per Clause 28 (e) of the Agreement dated 08.12.2007 – Annexure C-4. It was submitted that since the OP has already paid the amount of Rs.5400/- minus TDS per month to the complainants, so in view of this, the complainants cannot claim the penalty @Rs.5/- per sq.ft. of super area per month for the period of delay. There is no substance in the submissions made by the learned Counsel for the OP, as OP is paying Rs.5400/- minus TDS per month in view of Clause 28 of the Agreement – Annexure C-4 on account of non-completion of development construction within 18 months from the date of signing the agreement.

12.              Clause 28(e) is being reproduced as under for the purpose of convenience :-

 “In case of delay in construction of the said apartment attributable to delay of company subject to Clause (a) & (b) herein above, the Company would pay a sum at the rate of Rs.5/- per sq. ft. of Super Area per month for the period of delay to the Buyer(s), provided however that the Buyer(s) has made payment of all installments towards the sale consideration amount of the said apartment in time and without making any delay to the company.”

13.              The complainants made the payment of Rs.1 lac on 9.11.2007 vide cheque No.661881 which was acknowledged by the OP vide Annexure C-3. They further made the payment of Rs.9 lacs to the OP through BHW Home Finance Limited – Annexure C-20. They further made the payment of Rs.2,76,070/- on 22.1.2008 to the OP vide cheque No.661883 – Annexure C-21. Thus, in total the complainants made the payment of Rs.12,76,070/- to the OP.

14.              There is no dispute that the complainants had made the payment of the amount in time. Thus, we are of the view that the OP is also liable to pay a sum of Rs.5/- per sq. ft. of super area per month for the period of delay to the complainants, per Clause 28(e) of the Agreement, referred to above. Clause 28 & Clause 28(e) of the agreement are independent of each other, so OP is liable to compensate the complainants accordingly.

15.              The learned Counsel for the complainants argued that the complainants are entitled for damages/compensation. The reading of Clause 28 of the Agreement – Annexure C-4 at page No.56 of the complaint makes it abundantly clear that no claim by way of damages/compensation shall lie against the OP in case of delay in handing over the possession. Since, the complainants are the signatory of the said agreement, therefore, they are estopped from claiming damages/compensation from the OP due to delay in handing over the possession.

16.              As a result of the above discussion, the complaint is allowed with the following directions.

a)                OP is directed to pay the assured monthly return of Rs.5400/- minus TDS, per terms and conditions contained qua Annexure C-5 from the date of receipt of total amount of Rs.12,76,070/- till the date of handing over the possession of the unit minus the amount, if any, already paid to the complainants.

b)                OP is also directed to pay to the complainants penalty @Rs.5/- per sq.ft. of super area per month for the period from 7.6.2009 till the actual physical possession of the flat is delivered.

c)                OP is further directed to pay a sum of Rs.30,000/- as costs of litigation to the complainants.

17.              Certified copies of this order be sent to the parties free of charge. The file be consigned.