DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:1 of 2011] Date of Institution :03.01.2011 Date of Decision :14.11.2011 -------------------------------------- Sh. Amit Misra resident of House No.1416, Sector 19B, Chandigarh. ---Complainant. V E R S U S M/s Omaxe Limited, SCO No.143-144, Sector 8-C, Chandigarh through its Senior General Manager, Sales and Marketing. ---Opposite Party. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Parveen Kumar, Advocate for the complainant. Sh. Munish Gupta, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT Sh. Amit Misra has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) Pay interest to the complainant @24% per annum on the amount refunded to him by the OP; ii) pay a sum of Rs.5,00,000/- as damages; iii) any other relief, which the Forum deems fit in the facts and circumstances of the case. 2. The case of the complainants is that he booked a flat with the OP in a Group Housing Society known as “Omaxe Parkwood” at Baddi, Tehsil Nalagarh, Distt. Solan. It allotted him a flat bearing Unit No.104 in Tower Kachnar-C. An agreement (Annexure C-1) was executed between the parties on 28.11.2006 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.13,00,050/-. At the time of booking, the complainant paid a sum of Rs.1,30,000/- vide receipt dated 06.09.2006 (Annexure C-2). Subsequently, he paid a sum of Rs.52,542.50Ps on 28.11.2006 vide receipt (Annexure C-4); Rs.7,505/- on 01.12.2006 vide receipt (Annexure C-5) and Rs.11,00,000/- on 06.12.2006 vide receipt (Annexure C-6) respectively. 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, on visiting the site, he found that the possession of the flat could not be offered for another long period. Therefore, he requested the OP vide letter dated 26.8.2010 (Annexure C-3) for cancellation of his booking and sought refund of the amount paid by him along with interest. He also sent reminders dated 9.9.2010, 15.10.2010 and 14.12.2010 to OPs. According to the complainant, acceding to his request, OP refunded an amount of Rs.12,90,000/- i.e. Rs.10,00,000/- in favour of the Axis Bank, the financing Bank and Rs.2,90,000/- to the complainant vide cheques No.369235 and 369236, dated 8.12.2010 respectively. It is averred that while refunding the above amount of Rs.12,90,000/- to the complainant, OP did not pay any interest to him on the said amount. According to the complainant, non awarding of interest by the OP amounts to deficiency in service and unfair trade practice on its part. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the written statement filed by OP, the facts regarding execution of the agreement for the sale of flat bearing Unit No.104 in Tower Kachnar-C situated at “Omaxe Parkwood” at Baddi, Tehsil Nalagarh, Distt. Solan for Rs.13,00,050/- has been admitted. It has been specifically denied that the possession of the flat could not be offered at the relevant time. It has been pleaded that the complainant had sought refund of the amount because the price of the disputed property did not escalate as per his wishes According to OP, due to this recession in the real estate market, the complainant himself sought cancellation of the flat and sought refund of his amount. It has been asserted that the original documents were submitted by the complainant himself as per the rules and policy of refund. According to OP, the complainant had himself sought cancellation of the booked flat and accepted the refund of the entire payment in full and final settlement. So, in these circumstances, according to the OP, he is not entitled to any interest on the amount refunded to him. OP, therefore, prayed that the complaint be dismissed. OP has also raised a preliminary objection as regards the territorial jurisdiction. 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. 4. We have heard the learned counsel for the parties and have perused the record. 5. The first argument advanced by the learned counsel for the OP is that this Forum has no jurisdiction to entertain and decide this complaint. According to the learned counsel for the OP, 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-3 is the Tri-Partite Agreement executed between the parties. This agreement was executed on 27.11.2006 at Chandigarh. Clause 14 of this agreement reads as under: - “14.This Agreement is executed in Chandigarh and only Chandigarh Courts will have jurisdiction.” 6. Thus, from perusal of Clause 14 of the agreement reproduced above, 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. 7. The next argument advanced by the learned counsel for the OP is that the complainant is not entitled to interest on the amount refunded to him as the complainant had voluntarily applied for refund of the amount. In support of this contention, the learned counsel has cited the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi (hereinafter to be referred as National Commission) in Revision Petition No.1346 of 2011 decided on 02.05.2011 titled “Savitri Devi Vs. Chairman, Omaxe Constructions Limited”. To our mind, the ratio of the case cited above is not applicable to the facts and circumstances of this case. In the present case, the complainant applied for the refund of the amount because OP failed to deliver the possession of the flat within the period agreed upon by the OP in the agreement (Annexure C-1). Clause 28(a) of the said agreement reads as under: - “28(a) 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 other Flat Buyer(s) making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damage/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. Admittedly, the flats were not ready for delivery at the time the complainant made an application for refund of the amount, which was made after expiry of the period mentioned in Clause 28(a) of the agreement. In the case Savitri Devi Vs. Chairman, Omaxe Constructions Limited (supra), the complainant had sought refund of the amount “but for failure of respondents in not construction the flat within the time”. In these circumstances, it was held that the complainant is not entitled for interest. In the present case, as mentioned above, the refund has been sought because of the failure on the part of OP to construct the flat and deliver the possession thereof within the time stipulated in the agreement. Hence, the ratio of the said case is not applicable to the facts and circumstances of the case in hand. 9. Though there is Clause 21 in the agreement (Annexure C-1) to the effect that the complainant shall be liable to pay penal interest @18% p.a. on the due installment for up to one month delay from the due date and @24% p.a thereafter from the respective due date, no clause has been inserted, in the said agreement, to pay interest by the OP to the complainant in case of non delivery of possession or refund of the amount because of non delivery of possession in time. In such circumstances, to our mind, the OP is liable to pay interest @12% per annum to the complainant on Rs.12,90,000/- from 28.9.2010 when the complainant made the representation for refund of the amount, till the date of its refund i.e.08.12.2010. 10. In view of the above findings, this complaint is allowed with the following direction to the OP: - (i) to pay interest @12% per annum to the complainant on Rs.12,90,000/- from 26.8.2010 till the date of its refund i.e.8.12.2010. (ii) to pay a sum of Rs.20,000/- to the complainant for harassment and mental agony. (iii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 11. This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund to the complainant the amounts mentioned at Para 10(i) from 26.08.2010 till the date of payment and at Para 10(ii) along with penal interest @18% p.a. from the date of filing the complaint i.e.03.01.2011 till its realization besides payment of Rs.7,000/- as costs of litigation. 12. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 14th November, 2011 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/-
C.C.No.1 of 2011 Present: None. --- The case was reserved on 03.11.2011. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned. Announced. 14.11.2011 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
