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

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Varinder Kaushal s/o Uggar Sain Kaushal, R/o Sumitra Building, Amloh Road, Khanna, District Ludhiana.

…..Complainant

                                      V E R S U S

M/s Omex Ltd. SCO 143-144, Sector 8-C, Chandigarh, through its Senior General Manager, Sales and Marketing.

……Opposite Party

CORAM:     SH.P.D.GOEL                                             PRESIDENT

                   SH.RAJINDER SINGH GILL                        MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA      MEMBER

Argued by:    Sh.Parveen Kumar Garg, Counsel for Complainant.

                        Sh.Munish Gupta, Counsel for OP.                      

PER P.D. GOEL, PRESIDENT

1.                 Briefly stated, the facts of the case are that the complainant booked a flat bearing No.110, 1^st Floor, Tower Kachnar-B situated at ‘Omex Parkwood’ at Baddi, Tehsil Nalagarh, Distt. Solan, H.P. with the OP against a consideration of Rs.13,00,050/- as basic sale price and the amount of Rs.1,10,000/- on account of additional charges. According to the complainant, the agreement dated 14.5.2007 was executed between the parties. The complainant deposited an amount of Rs.26,000/- at the time of booking of the said flat.

                   It is further averred that vide letter dated 31.10.2007, the OP raised the demand of Rs.10,30,047/-, as such, the complainant deposited Rs.10,30,047/- with OP on 3.11.2007.   It is case of the complainant that as per Clause 28 (a) of the agreement executed between the parties, the possession of the flat was to be offered within 18 months, with further provision for extension of 6 months from the date of agreement. The complainant visited the site in the month of December, 2009 and found that possession of the flat cannot be offered for long period. He requested the OP for refund of the amount along with interest. The complainant also served a legal notice dated 11.12.2010 upon OP to refund the amount along with interest, but all in vain. Hence this complaint, alleging that the aforesaid acts of the OP amount to deficiency in service and unfair trade practice.

2.                OP filed reply and took preliminary objection with regard to territorial jurisdiction. On merits, the OP, while admitting the factual matrix of the case denied that the complainant ever visited the site. It is also denied that the possession cannot be offered for a long period. It is also denied that request for refund of any amount was made.

                    It is further pleaded that delay in offering possession is compensable, per terms and conditions of Agreement, Exhibit C-1, so OP cannot be held liable. Denying all other allegations made in the complaint, the OP pleaded that there is no deficiency in service on their part. A prayer for dismissal of the complaint 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 complainant argued that the complainant booked a flat No.110, 1^st Floor, Tower Kachnar-B situated at ‘Omex Parkwood’ at Baddi, Tehsil Nalagarh, Distt. Solan (H.P) with the OP. The agreement dated 14.5.2007 was executed between the parties. The complainant deposited an amount of Rs.26,000/- at the time of booking of the flat and Rs.10,30,047/- on 3.1.2007. It was further argued that as per Clause 28 (a) of the agreement, the possession of the flat was to be offered within 18 months, with further extension of 6 months from the date of agreement, which the OP has failed to deliver. It was also argued that the complainant visited the site in the month of December, 2009 and found that the possession of the flat cannot be offered for long period. Thus, the complainant made a request for refund of the amount deposited by him along with interest.

6.                The learned Counsel for the OP submitted that the delay in offering the possession is compensable, per terms and conditions of the agreement – Exhibit C-1.

7.                The other facts including the payment of Rs.12,90,000/- by the complainant to the OP are admitted. The only dispute between the parties is with regard to the payment of interest on the deposited amount by the complainant with the OP. Therefore, the sole question, which calls determination from this Fora is whether the complainant is entitled for the interest, if so, at what rate.

8.                As per Exhibit C-3, the complainant made the payment of Rs.2,60,000/- at the time of booking and as per Exhibit C-4, the complainant made the payment of Rs.10,30,000/- through DD dated 3.11.2007 and in this way, the amount of Rs.12,90,000/- has been paid by the complainant to the OP.

9.                Exhibit C-1 is the agreement dated 14.05.2007 executed between the parties and as per Clause 28(a) of the said agreement, the possession of the flat in question was to be given within 18 months from the date of signing the agreement by the buyer or within an extended period of six months, subject to force majeure condition [as mentioned in Clause (b) hereunder]. The said agreement was executed on 14.05.2007, therefore, the possession of the flat was to be delivered on or before 13.05.2009, which the OP has failed to deliver. The learned Counsel for the OP during the course of arguments has admitted that the possession of the flat in question has not been delivered to the complainant till date.

10.              The learned Counsel for the complainant made a reference to Clause 21 of the agreement – Exhibit C-1, wherein it has been stated that in case of delay in payment, the OP can charge penal interest @ 18% p.a. for upto one month delay from the due date of outstanding and @ 24% p.a. thereafter on all outstanding dues from their respective due dates. It was argued that when the OP has a right to charge interest @ 18% p.a. for upto one month and thereafter @ 24% p.a., then the complainant is also entitled for the interest on the amount deposited by him with the OP.

11.              The learned Counsel for the OP made a reference to Clause 28(f) of the agreement – Exhibit C-1, which is reproduced as under :-

“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, no other claim will be preferred except that Buyer(s) money will be refunded on demand along with simple interest @ 6% p.a. from the happening of such eventuality after compliance of certain formalities by the Buyer(s).”  

It was argued by the learned Counsel for the OP that due to force majeure and also for the reasons beyond the control of the company, the project is abandoned, therefore, the amount deposited by the customer is required to be refunded along with simple interest @ 6% p.a.

12.              The OP has not produced any evidence to bring on record the force majeure reasons or any reason beyond the control of the company to prove the delay in completion of the project in question, therefore, the Clause 28(f) referred to above, is not attracted to the facts and circumstances of the present case.

13.              Admittedly, the amount of Rs.12,90,000/- has been deposited by the complainant with the OP, which is lying with it and the possession of the unit has not been delivered to him till date. Thus, the OP is liable to pay interest on the amount of Rs.12,90,000/- from the date of deposit.

14.              Exhibit C-1 - agreement dated 14.5.2007 has been executed between the parties to the lis at Chandigarh. Thus, it is held that a part of cause of action accrued to the complainant at Chandigarh, so this Fora has got the jurisdiction to entertain and decide the present controversy. 

15.              As a result of the above discussion, the complaint is allowed and the OP is directed to pay Rs.12,90,000/- to the complainant along with interest @ 12% p.a. from the date of deposit till payment. OP is also directed to pay Rs.10,000/- as litigation costs.  This order be complied with by OP within one month from the date of receipt of its certified copy, failing which, the OP shall be liable to pay the awarded amount along with penal interest @ 15% p.a. besides Rs.10,000/- as litigation costs.

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