BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Sandeep Saxena s/o Mr.Virendra Kumar Saxena, R/o H.No.557, Sector 11, Panchkula.

….…Complainant

                                V E R S U S

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

        2^nd Address:- Corporate Office – Omaxe Limited, 12, Local Shopping Centre, Kalkaji, New Delhi – 110019

2]     BHW-Birla Home Finance Limited (Presently known as Deutsche Post Bank Home Finance Limited, SCO No.118-119, Sector 8-C, Madhya Marg, Chandigarh 160017 through its Branch Head.

                                        ..…Opposite Parties

CORAM:          SH.LAKSHMAN SHARMA                         PRESIDENT

                    SH.ASHOK RAJ BHANDARI            MEMBER

                    MRS.MADHU MUTNEJA                        MEMBER

PRESENT:     Sh.Deepak Aggarwal, Adv. for the complainant.

Sh.Munish Gupta, Adv. for OP No.1.

None for OP NO.2.

PER SHRI ASHOK RAJ BHANDARI, MEMBER

1]            Succinctly put, complainants booked a residential Flat No.522 in Jacaranda, C-Tower on 5^th Floor, having super area of approx. 66.24 sq. mt./713 sq. ft. with OP No.1. An agreement dated 14.11.2006 (Annexure C-2) has also been executed between the parties to this effect. The complainant paid a sum of Rs.94,000/- and then Rs.11,000/- to OP No.1 on 23.9.2006 & 2.11.2006 respectively.  It is averred that OP No.2 was also working with OP No.1 for the sale of flats as well as completing all necessary formalities.  OP No.1 had fixed the total price of the flat at Rs.9,30,465/- vide agreement dated 14.11.2006.  Besides this amount, the additional amount of Rs.50,000/- was to be charged for for car parking space, Rs.15,000/- for power backup installation charges, Rs.20,000/- for interest free maintenance security and Rs.25,000/- for club membership charges.  The complainant had also taken a loan of Rs.8,33,000/- from OP No.2 for the purchase of said flat and the same was deposited with OP No.1 and in this manner a total sum of Rs.9,38,942/- was deposited with OP No.1, which was more than the actual cost of the flat. 

                It is stated that as per the terms & conditions of the agreement dated  14.11.2006, OP No.1 was to hand over the possession of the flat within 18 months from the date of signing the agreement.  However, when the complainant visited the site of construction, much after the lapse of 18 months, he noticed that no construction work was started at the site.  Thereafter, OP No.1 sent a letter to the complainant offering him possession of another Flat No.523, 5^th Floor in Tower Jacaranda-B having the same area & specifications instead of offering the possession of the originally booked Flat No.522 in Jacaranda-C Tower on 5^th Floor of the building complex.  As this offer of changed flat was not acceptable to the complainant, he requested OP No.1 to cancel the booking of the flat and refund the amount deposited by him along with interest @18% per annum but all in vain.  Hence, the present complaint has been filed making the following prayer:-

a)        complaint filed by the complainant may kindly be allowed:

b)        OP No.1 be directed to refund the total amount of Rs.9,38,942/- only along with interest of @18% per annum from the date of deposit of the amounts.

c)        OP No.1 be also directed to refund a total sum of Rs.2,00,110.21 approx. only, on account of interest being paid by the complainant to OP No.2 for availing loan facility of Rs.8,33,000/- only for the purchase of the flat.  For no fault of the complainant the above said amount of interest was paid to OP No.,2 but due to negligent acts on the part of OP No.1;

d)        Compensation for mental agony and harassment and for price escalation to the tune of Rs.8 lacs;

e)        Cost of litigation is assessed at Rs.21,000/- only.

f)         Any other relief which this Hon’ble Forum deems fit and proper in the circumstances of the case may also be granted in favour of the complainant and against the OPs.

2]             Pursuant to notice, OP No.1 appeared and filed reply. OP No.1 has taken preliminary objection to the effect that the forum lacks territorial jurisdiction as the subject matter of the dispute i.e. residential flat applied by the complainant is in Omaxe Park Woods, Baddi (HP) and no cause of action has arisen in the territorial jurisdiction of this forum, hence the complaint deserves to be dismissed.  It is admitted that the complainant was initially/originally allotted Flat No.522, 5^th Floor in Jacaranda-C Tower, at Omaxe Parkwood, Solan (Himachal Pradesh), and it has also been mentioned in the Agreement dated 14.11.2006.  It is however denied that the complainant had paid excess amount than the actual cost of the flat as agreed as per the agreement. It is also admitted that OP No.1 was to give the possession of the flat to the complainant within 18 months from the date of signing the agreement.  It is averred that there was also a provision in the agreement for granting extension of 6 months as per clause  28(b) of the agreement for giving possession of the flat to the complainant.  OP No.1 has submitted that the allotment of Flat in question was totally provisional and the complainant had not availed any preferential location at the time of applying for allotment. OP No.1 has also referred to the Clause 3(B)(iv) of the Application Form for allotment of flat as well as Ann.R-1/2 vide which he was allotted Flat No.523, 5^th Floor, Jacaranda-B Tower in the same project. Rest of the allegations have been denied and it is prayed that the complaint be dismissed.

3]             The OP No.2 in  their reply stated that the complainant himself approached OP No.1 for booking of the flat in question.  It is denied that OP No.2 promoted the sale of flats of OP No.1, as alleged by complainant.  It is admitted that the complainant had availed a loan of Rs.8,33,000/- from OP No.2 on the agreed rate of interest and other terms and conditions of the loan agreement for the purchase of a flat from OP No.1 and a tripartite agreement was also entered into amongst the complainant, OPs No.1 & 2.   It is submitted that the complainant himself stopped making payment of the loan installments to OP No.2 without any fault on their part.   All other allegations have been denied and it is prayed that the complaint qua OP No.2 be dismissed. 

4]             Parties led evidence in support of their contentions.

5]             As none appeared on behalf of OP No.2 on 2.8.2010, when the case was fixed for arguments.  Therefore, we proceed to dispose of this complaint on merits under rule 4(8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date) even in the absence of the OP No.2. 

6]             We have heard the ld.Counsel for the complainant and OP No.1 and have also perused the documents placed on record thoroughly.

7]             The basic facts of the case in respect of the complainants having booked a residential Flat No.522 in Jacaranda, C-Tower on 5^th Floor, having super area of approx. 66.24 sq. mt./713 sq. ft. with OP No.1 and having signed an agreement dated 14.11.2006 (Ann.C-2) with OP No.1,  have all been admitted.  The complainant paid a sum of Rs.94,000/- with OP No.1 on 23.9.2006 as part payment of the flat in anticipation of signing the agreement dated 14.11.2006.  Another sum of Rs.11,000/- was also paid by the complainant on 2.11.2006.  It is also a fact that OP No.2 was collaborating with OP No.1 for the sale of flats and the necessary formalities were got completed by OP No.2 from the complainant.  The total price of the flat was fixed at Rs.9,30,465/- by OP No.1 as is also reflected in the agreement dated 14.11.2006.  In addition to the normal price, the additional amount of Rs.50,000/- was to be charged for OP No.1 for car parking space, Rs.15,000/- for power backup installation charges, Rs.20,000/- for interest free maintenance security and Rs.25,000/- for club membership charges.  With a view to meet his financial commitments, the complainant availed a loan of Rs.8,33,000/- from OP No.2 i.e. BHW-Birla Home Finance Limited (presently known as Deutsch Post Bank Home Finance Limited).  The total amount paid by the complainant to OP No.1 comes to Rs.9,38,942/-.

8]             As per the complainant, in terms of the agreement dated  14.11.2006, entered into between the parties i.e. the complainant and OP NO.1, OP NO.1 shall endeavor to complete the construction of the flat within 18 months from the date of signing the agreement.  When the complainant visited the site of construction, he found that no construction work has yet been started.  Thereafter, OP NO.1 addressed a letter to the complainant offering possession of Flat No.523, 5^th Floor in Tower Jacaranda-B having the same agreed area and specifications in the captioned Group Housing Project instead of offering possession of the originally booked flat No.522 in Jacaranda-C Tower on 5^th Floor of the building complex.  Since the changed flat was not acceptable to the complainant, he asked OP No.1 for the cancellation of the booking and refund of the amount deposited by him along with interest at the rate of 18% per annum vide letter dated 29.8.2007 (Ann.C-10) but the amount in question has not been refunded by OP No.1 to the complainant so far.  This has led to the filing of the present complaint. 

9]             The complainant in his prayer has asked for the refund of Rs.9,38,942/-; as also payment of Rs.2,00,110.21 (approx.) as interest paid by him to OP No.2 for availing the loan for the purchase of the Flat; Rs.8.00 lacs as compensation for mental agony and harassment and Rs.21,000/- as cost of litigation. 

10]            OP No.1 in its reply has admitted the fact of having tentatively allotted Flat No.522, 5^th Floor in Jacaranda-C Tower situated at Omaxe Parkwood, Solan (Himachal Pradesh), which was also reflected in the agreement signed between the parties on14.11.2006.  OP No.1 has denied the allegations of the complainant that he had paid more amount then the actual cost of the flat as, agreed as per the agreement dated 14.11.2006, by saying that the amount paid to OP No.1 has been exactly as per terms & conditions of the agreement.  

11]            In respect of the time schedule for handing over the possession of the booked flat to the complainant is concerned, OP No.1 has admitted that the possession of the flat was to be delivered to the complainant within 18 months from the date of signing the agreement.  However, there was a provision in the agreement for extension of 6 months as per clause  28(b) of the agreement.  This OP has emphasized that the allotment of Flat No.522, 5^th Floor, was totally provisional and the complainant had not availed any preferential location at the time of applying for allotment.

12]            OP No.1 has made reference to the application form especially Clause 3(B)(iv) and also to Ann.R-1/2, but both these documents referred to OP No.1 clearly show that the complainant had been given only the Allotment of Flat No.522, 5^th Floor, Jacaranda-C Tower and not any other flat in any other tower, may be with the same specifications or area.  Therefore, even these two documents do not support the contention of OP No.1 in any way.  Rather, these two documents support the contention of the complainant that he had paid the booking amount etc. only for a particular flat with specific number in Tower-C.

13]            In respect of the preliminary objection taken by OPs No.1 that the present complaint lacks territorial jurisdiction as the subject matter of dispute i.e. that residential flat applied for by the complainant is in Omaxe Parkwoods, Baddi (Himachal Pradesh) and that no cause of action has arisen in the territorial jurisdiction of this Forum, it is observed that the Tripartite Agreement signed amongst the complainant on the one hand and OPs No.1 & 2 on the other has been signed by OP No.2 for and on behalf of its Chandigarh Branch of OP.  Mr.Vipin Arora, Branch Operations Manager, Chandigarh Branch, of Op No.2 has duly signed this agreement.  Therefore, this Forum has the jurisdiction to try the present complaint.  OP NO.1 is also a party in the Tripartite Agreement.  The fact of signing Tripartite Agreement has been duly admitted by the opposite parties.

14]            Even if the contention of OP No.1 is accepted that the period for handing over the possession of the flat was 18 months, subject to extension  of another 6 months, the total period for handing over the possession of the flat comes to 24 months and even the said period has already been completed on 13.11.2008 but OP No.1 has not been able to deliver the possession of the Flat No.522 in Jacaranda, C-Tower on 5^th Floor till date.  

15]            In the reply/written statement of OP No.1 nowhere it is mentioned that the said Flat No.522 in Jacaranda, C-Tower on 5^th Floor is ready even as of now for giving possession to the complainant.  As late as on the date of final arguments i.e. 6.8.2010 when a period of about 4 years had already passed, the flat in question as yet is not ready for giving possession.

16]            Keeping in view the above detailed discussion on the case, it is quite clear that OP No.1 has not been able to fulfill its commitment of offering possession of the mutually agreed/promised Flat No.522 in Jacaranda, C-Tower on 5^th Floor at  Omaxe Parkwood, Baddi, Solan (Himachal Pradesh) on the schedule date i.e. within 18 months and even after adding the extended period of 6 months i.e. after 24 months.  Since the flat in question could not be given to the complainant, as scheduled,he asked for cancellation of the booking and refund of the amount paid by him to OP No.1 which was his basic and natural right.  But even that request was not acceded to by OP No.1.  Therefore, there is not even an iota of doubt that there is not only deficiency in service and negligence on the part of OP No.1 but also indulgence in an unfair trade practice on the part of this OP in not refunding the amount paid by the complainant as the entire cost price of the flat, which has remained with OP No.1, utilized by it fully without paying any interest to the complainant, which to that extent is an unearned profit with OP No.1.  Furthermore, the OP No.1 has admitted having received the amount of Rs.9,38,942/- from the complainant as the total price of the flat in question without ever handing over the possession of the flat to the complainant.

17]            So far as OP No.2 is concerned, it is only a proforma party as it has merely financed the amount to the complainant for purchase of the flat in question from OP No.1 to the extent of Rs.8,33,000/-.  OP No.2 has no role to play at all, in either allotting any flat or giving possession of the same to the complainant.  Moreover, the complainant has not asked for any relief from OP NO.2, therefore, the complaint quo OP No.2 is dismissed.

18]            In view of the foregoing, in our considered opinion, there is gross deficiency in service, negligence and unfair trade practice on the part of OP No.1.  The present complaint has a lot of merit, weight and substance and hence, it must succeed.  Accordingly, we decide the complaint in favour of the complainant and against OP No.1.  The complaint is therefore allowed. OP No.1 is directed to make the following payments to the complainant:-

i)         OP No.1 shall refund Rs.9,38,942/- to the complainant along with interest at the rate of 9% per annum calculated from the respective dates of deposits by the complainant with OP No.1 till the date of actual realization.

ii)        To pay Rs.5000/- as cost of litigation to the complainant.

                The aforesaid amount shall be paid by OP No.1 within 45 days from the date of receipt of certified copy of this order, failing which it shall pay the amount of Rs.9,38,942/- along with interest @18% per annum calculated from the respective dates of deposits by the complainant with OP No.1 till the date of actual realization, besides payment of Rs.5000/- as cost of litigation. 

19]            Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

19^th Aug., 2010                                                 Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                                                Sd/-

                                                (ASHOK RAJ BHANDARI)

MEMBER

Sd/-

(MADHU MUTNEJA)

MEMBER

‘Om’