DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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1.       Yashpal Saggi s/o Late Sh.M.L.Saggi,

2.       Asha Sagga, w/o Yashpal Saggi,

Both residents of 1630, Sector 7, Chandigarh.

…..Complainants

                                      V E R S U S

1.       M/s Omax Limited through its MD registered office 7, Local Shopping Centre, New Delhi.

2.       M/s Omax Limited, SCO No.143-144, 1^st floor, Sector 8, Madhya Marg, Chandigarh through its Branch Manager.

3.       Lakshmi Real Estates through its proprietor SCO No.1132-1133, Sector 22, Chandigarh. 

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Sh.Rajesh Sood, Counsel for the complainants.

                     Sh.Munish Gupta, Counsel for OPs No.1 and 2.

                     None for OP No.3.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Yashpal Saggi and his wife Smt.Asha Saggi, complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Omax Limited & Ors. - Opposite Parties (hereinafter called the OPs), alleging that they applied for a residential flat in the scheme/Group Housing Project under the name and style of Omaxe Parkwoods, which was to be developed by OPs No.1 and 2 in the revenue estate of Village Chakkan and Billanwali-Gujran, Tehsil Nalagarh, District Solan. The copy of application form is Annexure C-1. The said application form was got filled up at Chandigarh by the efforts of OP No.3, who is the agent of OPs No.1 and 2. The complainants were to pay a total amount of Rs.16,41,343/- i.e. the price of the flat, apart from the expenses on account of car parking amounting to Rs.1 lac, club membership of Rs.25,000/- and security (IMFS) of Rs.20,000/-. The complainants have further alleged that they also received a letter dated 5.5.2007 – Annexure C-2 from OP No.2 i.e. branch office of OP No.1 at Chandigarh intimating them that the copies of agreement were to be signed by them. The agreement was received by the complainants at Chandigarh and, thereafter, it was signed by the complainants and the authorized representative of OPs on 27.6.2007. Copy of the agreement is Annexure C-3. As per terms of the agreement – Annexure C-3 the payment plan was time linked plan as per Condition No.17. The payments were to be made to OPs No.1 and 2 either at Delhi, Solan and Chandigarh and the complainants made the payments as agreed in Annexure  C-3 at Chandigarh. As per Condition No.28(a) of Annexure C-3, the OPs were liable to complete the construction of the flat within 18 months from the date of signing of the agreement i.e. 27.6.2007 and in case of delay, they were liable to pay a sum of Rs.5/- per sq. ft. of the super area per month for the period of delay to the buyer. The complainants received letters dated 5.5.2007 and 19.5.2007, copies of which are Annexure C-4 and C-5 intimating them the amount due towards them. They were also intimated about the shifting of the project Omaxe Parkwoods, Baddi from Delhi to Chandigarh. The complainants paid an amount of Rs.1,64,134/- on 15.4.2007 and Rs.14,67,643/- on 19.6.2007. The cheques – Annexure C-6 and C-7 were handed over to the branch office of OP No.1 i.e. OP No.2 at Chandigarh. The cheques were drawn at Chandigarh and presented and encashed by OP No.2 at Chandigarh. The certificate issued by the bankers of the complainants showing the presentation and encashment of the cheques mentioned in the receipts is Annexure C-8. It has been contended that the complainants had been approaching OPs No.1 and 2 continuously to complete the construction and hand over the possession of the flat after complying with all the necessary formalities but they have been delaying the matter on one pretext or the other. The complainants also sent a legal notice dated 9.3.2011 to OPs No.1 and 2, copy of which is Annexure C-9. Then the reminder was sent on 20.5.2011, copy of which is Annexure C-11. The complainants have contended that OPs No.1 and 2 have never intimated about the progress of the construction of the flat and have not intentionally replied to the legal notice and they are guilty of deficiency in service and unfair trade practice. The complainants have made a prayer for a direction to the OPs to hand over the possession of the flat to them ; to give interest @18% p.a. on the amount of Rs.16,31,777/- for the period of delay till the same is paid to them ;  to pay an amount of Rs.5 lacs as damages for deficiency in service ; to pay an amount of Rs.25,000/- towards litigation expenses.

2.                On 13.3.2012, when the case was listed for appearance of the OPs, none appeared for the complainants and the complaint was dismissed in default.

3.                The complainants went in appeal and the Hon’ble State Commission vide order dated 20.7.2012 remanded the complaint to the District Forum with a direction to restore the same to its original number, proceed further from the stage, at which it was dismissed in default of appearance of the complainants and decide the same on merits in accordance with the provisions of law. The complainants were burdened with costs of Rs.3,000/- for causing delay in the disposal of complaint.

4.                After receipt of the order of the Hon’ble State Commission in this Forum, the cost of Rs.3,000/- was paid by the complainants on 27.7.2012.  OP No.3 filed its reply and evidence and the case was adjourned to 17.8.2012 for reply and evidence on behalf of OPs No.1 and 2. On 17.8.2012 the reply and evidence of OPs No.1 and 2 were not ready. Adjournment was granted subject to costs of Rs.300/- and the case was adjourned to 7.9.2012. On 7.9.2012 again the reply and evidence of OPs No.1 and 2 were not ready and adjournment was granted, subject to additional costs of Rs.500/- and the case was adjourned to 28.9.2012. On 28.9.2012 again the reply and evidence were not ready and adjournment was granted to them for 3.10.2012, subject to costs of Rs.1,000/- and it was made clear that no further adjournment would be granted. On 3.10.2012 previous costs was paid, however, only written reply by way of affidavit was filed on behalf of OPs No.1 & 2 and no other document was filed.

5.                It has been pleaded by OPs No.1 and 2 in their written reply that no cause of action has accrued to the complainants within the territorial jurisdiction of this Forum and merely having branch office at Chandigarh does not confer jurisdiction on this Forum. It has also been averred that the complaint is also barred by limitation. It has been stated that the complainants themselves are defaulters and they failed to pay the installments in time and are estopped from approaching the Court. It has been further stated that the complainants are not consumers as they had purchased the property in dispute for investment purpose and not for their residential purposes because the complainants had applied two identical flats at different places in the same project, which shows that the purpose of purchase of flat was commercial. It has been averred that receiving of the copies of the agreement by the complainants at Chandigarh did not give any cause of action to them at Chandigarh. It has been stated that as per conditions of the agreement Annexure C-3 the possession was to be given within 18 months with extended period of 6 months but because of defaulting customers like complainants, possession within stipulated time could not be offered. The complainants are entitled to defaulting clauses only when all the terms of the agreement have been duly complied with by them. It has been stated that the complainants have approached the OPs for the first time vide present complaint and they did not approach prior to that. It has been averred that there is no delay in the project in question and the complainants themselves have failed to pay the installments in time, despite sending of repeated reminders. It has been further stated that the legal notice and reminder were never received by the OPs and the question of refund of amount does not arise. It has been further stated that the present complaint is nothing but result of recession in the real estate market. The complainants never intended to take possession and they kept silent for a long period and they suddenly raised the present issue that is why they stopped making payment of installments.

6.                OP No.3 has contended that the payments were made by the complainants through it at Chandigarh.

7.                We have appraised the entire evidence and heard the arguments addressed by the learned Counsel for the complainants and OPs No.1 & 2. None appeared for OP No.3 on the date of arguments.

8.                The copy of Application Form – Annexure C-1 reveals that both the complainants applied for allotment of a flat in the Group Housing Project named as Omaxe Parkwoods, which was to be developed and constructed by OPs No.1 and 2 on the land falling in the revenue estate of Village Chakkan and Billanwali-Gujran, Tehsil Nalagarh, District Solan. The copy of application form Annexure C-1 shows that the application was got filled up by the efforts of OP No.3, whose stamp and signatures are existing at page No.2 of the application. The copy of letter dated 5.5.2007 – Annexure C-2 shows that OP No.1 sent two original copies of agreements for the booking of the flat by the complainants asking them to sign each and every page (at the place marked buyer) by the applicants sending them back to the replying OPs at the earliest. Vide letter dated 5.5.2007 – Annexure C-4 it was intimated that the complainants had opted Down Payment Plan and they had to pay the installments as per details given in the letter. The copies of receipts Annexure C-6 and C-7 show that the complainants paid an amount of Rs.1,64,134/- through cheque dated 15.4.2007 and an amount of Rs.14,67,643/- vide cheque dated 19.6.2007. The copy of certificate dated 25.1.2012 – Annexure C-8 issued by the Punjab National Bank, Sector 17, Chandigarh shows that the abovesaid two cheques were presented and encashed at Chandigarh. A perusal of Condition No.28(a) of the Agreement – Annexure C-3 shows that the company shall endeavor to complete the development/construction of the flat within 18 months from the date of signing of the agreement by the buyer or within an extended period of six months, subject to force majeure conditions and subject to other flat buyers making timely payment or subject to any other reasons beyond the control of the company.  However, admittedly the possession of the flat has not been handed over to the complainants so far, though it should have been handed over within 18 months from the date of signing of the agreement i.e. 27.6.2007.

9.                The learned Counsel for OPs No.1 and 2 has firstly opposed the complaint on the ground that this Forum has no pecuniary jurisdiction to try the matter. He has contended that the price of the flat as per case of the complainants is Rs.16,31,777/- and the complainants have also asked for damages to the tune of Rs.5 lacs and since this Forum has pecuniary jurisdiction to decide the cases upto Rs.20 lacs only, therefore, the complaint is not maintainable before this Forum. It is significant to note that at the time of final arguments, the learned Counsel for the complainants made a statement that he foregoes his claim with regard to the damages to the extent of Rs.5 lacs and claim damages only to the extent of Rs.3 lacs, if granted. The learned Counsel for OPs No.1 and 2 raised a serious objection to the recording of the statement of limiting the claim at the stage of final arguments, as according to him the same would amount to amendment of complaint and its prayer clause. He has submitted that the complainants cannot be allowed to reduce the claim of damages from Rs.5 lacs to Rs.3 lacs.

10.              We have carefully considered the rival contentions. We are of the opinion that the complainants cannot be debarred from relinquishing/reducing their claim before the complaint is finally decided. In this case, we do not feel that any application for amendment of the complaint or the prayer clause was required. Since the learned Counsel for the complainants himself made a statement foregoing his claim to the extent of Rs.5 lacs and claimed damages to the extent of Rs.3 lacs only, the Forum may consider his prayer and grant the appropriate relief. We are of the opinion that the objection raised by the learned Counsel for OPs No.1 and 2 for not recording the statement of limiting the claim at the stage of arguments is devoid of any merit. The complainants are the masters of their complaint and it is for them to see as to what relief is to be claimed by them and they cannot be debarred from limiting the claim to the extent they want. In the instant case, we feel that the statement made by the learned Counsel for the complainants on 26.11.2012 before this Forum can be accepted at this stage. Accordingly since the total amount now claimed in this case is less than Rs.20 lacs, therefore, this Forum has got pecuniary jurisdiction to try the complaint.

11.              The learned Counsel for OPs No.1 and 2 has further urged that this Forum has got no territorial jurisdiction to try the complaint because the residential flat in question is situated at Baddi, District Solan (HP) and all the transactions/correspondence took place between the parties at New Delhi. He has argued that even the application form – Annexure C-1 was addressed to OP No.1 at New Delhi. He has further argued that mere receipt of payment through cheques cleared by Punjab National Bank, Chandigarh does not warrant that any cause of action arose to the complainants at Chandigarh. He has further argued that copy of agreement – Annexure C-3 nowhere shows that it was executed at Chandigarh. He has argued that the said agreement was executed at New Delhi by both the parties and no transaction took place at Chandigarh.

12.              We have given our thoughtful consideration to the above arguments of the learned Counsel for OPs No.1 and 2. It is true that the application form for allotment of flat – Annexure C-1 is addressed to OP No.3 at its New Delhi address. It is also true that the Group Housing Project named as Omax Parkwoods is being developed and constructed by OPs No.1 and 2 on the land falling in the revenue estate of Village Chakkan and Billanwali-Gujran, Tehsil Nalagarh, District Solan (HP). However, as per case of the complainants, the application form was filled up by them by the efforts of OP No.3, who is the agent of OPs No.1 and 2 at Chandigarh. The copy of the application form - Annexure C-1 also shows that the stamp of OP No.3 showing its Chandigarh address is existing on the same. It is also signed by the proprietor of OP No.3. OP No.3 has not denied this fact in his written reply that the application form was not filled up with his efforts at Chandigarh. As far as the question of signing of the agreement – Annexure C-3 by the complainants at Chandigarh is concerned, a perusal of the letter dated 5.5.2007 – Annexure C-2 shows that the same was sent by OP No.1 to the complainants for signing the agreements and sending them back at the earliest. The fact that the letter was sent along with the two original copies of agreements to the complainants goes to show that it was sent to them at Chandigarh. Had the agreement been signed by the complainants at New Delhi, there was no occasion for OP No.1 to send the letter dated 5.5.2007 – Annexure C-2 to the complainants. Apart from that, the letter dated 19.5.2007 – Annexure C-5 sent by OP No.1 to the complainants shows that for the sake of customer convenience and smooth after sales activities, they had shifted their project Omaxe Parkwoods, Baddi from Delhi Head Office to their Regional Office at Chandigarh. To cap it call, the copy of the Certificate dated 25.1.2012 – Annexure C-8 by Punjab National Bank, Chandigarh shows that as per records, the cheques dated 15.4.2007 and 19.6.2007 of the amount of Rs.1,64,134/- and 14,67,643/- were presented and encashed at Chandigarh. In Sahara India Pariwar & Ors. Vs. Wing Commander Akhil Deep Sachdeva I(2011) CPJ 119, where the flat was booked and advance money was deposited at Chandigarh. It was held that part of cause of action arose at Chandigarh and the complaint was maintainable in District Forum at Chandigarh. In the instant case, the application form for allotment of flat was filled up at Chandigarh, the agreement - Annexure C-3 was signed by the complainants at Chandigarh. OP No.1 shifted the project Omaxe Parkwoods, Baddi from Delhi Head Office to their Regional Office at Chandigarh. Above all, the cheques amounting to Rs.1,64,134/- and Rs.14,67,643/- were presented and encashed at Chandigarh. Consequently, we feel that this Forum has territorial jurisdiction to try the complaint.

13.              The learned Counsel for OPs No.1 and 2 has contended that the complaint filed by the complainants is time barred because as per pleadings in para No.13 of the complaint, the cause of action accrued to the complainants on 31.12.2008 when after 18 months from entering into agreement – Annexure C-3, the OPs No.1 and 2 were liable to hand over possession of the completed flat to the complainants and secondly when despite legal notice dated 9.3.2011, the OPs did not refund the amount of Rs.16,31,777/- with interest. The learned Counsel for the OPs No.1 and 2 has been vehemently argued that when the cause of action accrued to the complainants on 31.12.2008, the complaint filed on 9.2.2012 is patently barred by limitation.

14.              After giving our anxious consideration to the above arguments, we feel that the same are devoid of any force. It is the admitted case of the OPs that the possession of the flat has not been handed over to the complainants till now. When the complainants have already made payment of total amount of Rs.16,41,343/- and the construction was to be completed by OPs No.1 and 2 till 31.12.2008, we feel that the complainants are having the recurring cause of action. In Raghav Estates Ltd. Vs. Vishnupuram Colony Welfare Association & Anr. IV(2012) CPJ 36 (NC), it was held that where there is immovable property and amenities promised by the OPs were not provided, it can be construed as continuing cause of action and it cannot be said to be barred by time. In the instant case, we feel that if the OPs No.1 and 2 have not handed over the possession of the flat to the complainants as per agreed terms and conditions, it cannot be stated that the complainants are debarred from claiming possession of the flat now. We are of the opinion that the complainants are having continuing cause of action and the complaint cannot be held to be barred by time.

15.              Adverting to the question of deficiency in service and unfair trade practice on the part of OPs No.1 and 2, a perusal of Clause 28(a) of the agreement – Annexure C-3 shows that the company had endeavored to complete the development/construction of the flat within 18 months from the date of signing the agreement by the buyers or within an extended period of six months, subject to force majeure conditions and subject to other flat buyers making timely payment or subject to any other reasons beyond the control of the company. In the instant case, though the OPs No.1 and 2 have pleaded that because of defaulting customers like complainants, possession within stipulated time could not be offered, yet with the written reply of OPs No.1 and 2 not even a single document has been attached to show that the complainants ever defaulted in making payment of the installments. What to say appending any document, even the details of the letters sent by OPs No.1 and 2 to the complainants asking them to pay the installments are not elaborated in the written reply. Though the OPs No.1 and 2 have pleaded that the complainants never intended to take possession of the property and they had stopped making payment of installments, yet it has not been elaborated as to which installment was not paid by them. The contention of the OPs that the complainants applied for flats for investment purpose and the rates of property did not rise as per their expectations and now they want their money back cannot be accepted because in the prayer clause, the complainants have prayed for a direction to the OPs to hand over the possession of the flat to them.

16.              The learned Counsel for OPs No.1 and 2 have drawn our attention to clause 28(f) of the agreement and has argued that if for force majeure reasons or for reasons beyond the control of the company, the whole or part of the project is abandoned or abnormally delayed then the buyers money will be refunded on payment along with simple interest @6% p.a. However, we feel that there is no evidence of force majeure reasons or reasons beyond the control of the company for delaying the project. Therefore, there cannot be any question of application of Clause 28(f) to the facts of the present case. Rather, it is a clear case of deficiency in service on the part of OPs No.1 and 2.

17.              For the reasons recorded above, we find merit in the complaint and the same is allowed. OPs No.1 and 2 are directed to hand over the possession of the flat to the complainants within one month of this order or in the alternative to refund the amount of Rs.16,31,777/- to the complainants with interest @ 10% p.a. from the date of payment till realization. OPs No.1 and 2 are also directed to make payment of an amount of Rs.2 lacs as damages to the complainants for deficiency of service. They are also directed to make payment of an amount of Rs.10,000/- as litigation expenses.

18.              This order be complied with by the OPs No.1 and 2 within one month from the date of receipt of its certified copy, failing which, OPs No.1 and 2 shall be liable to refund the above awarded amount to the complainants along with interest @ 12% p.a. from the date of filing of the complaint, till the amount is actually paid to the complainants, besides paying the litigation cost of Rs.10,000/-.

19.              The certified copies of this order be sent to the parties free of charge. The file be consigned.