Delhi

StateCommission

CC/11/411

SIDDHART KAPOOR - Complainant(s)

Versus

OMAXE BUILD HOME PVT. LTD. - Opp.Party(s)

22 Aug 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 22.08.2017

Complaint No.411/2011

In the matter of:

Siddhant Kapur,

3 aurangzeb lane,

New Delhi-110003.                                                   ……….Complainant

Versus

 

Omaxe Build Home Pvt. Ltd.

Omaxe House, 10 Local Shopping Centre,

Kalkaji,

New Delhi-110019.                                                    ..........Opposite Party

 

 

CORAM

 

N P KAUSHIK                        -                  Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?       Yes

2.     To be referred to the reporter or not?                                            Yes

 

Present :       Ms. Meenakshi Singh, counsel for the complainant.

Sh. Mukti Bodh, counsel for the OP.

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

 

JUDGMENT

The complainant booked a flat in one of the projects of M/s. Omaxe Build Home Pvt. Ltd (in short the OP) after paying an amount of Rs.9,20,000/- on 25.09.2006. The project was known by the name of Omaxe Build Home Pvt. Ltd and located in Sector-MU, Greater Noida (UP). A formal `flat buyer agreement’ was however entered into between the parties on 04.06.2009. OP allotted the flat bearing no.1101 in Gold Pal, B-Tower with a super area of 2435 sqr ft. The brochure issued by the OP envisaged a construction-linked-payment plan. The total sale consideration of the flat was Rs.7204525/-. Admittedly the complainant paid in all an amount of Rs.19,43,738/- by 20.03.2009.

2.    Controversy arose when complainant stopped paying further installments stating that the OP failed to adhere to  the terms of the construction-linked plan. In other words, construction was not going at the pace as per plan  whereas the OP started demanding further installments. On a demand of money made by the OP in its letter dated 18.09.2009, the complainant responded vide its letter dated 08.05.2010 inquiring about the status of the project and complainant did not receive any reply. Vide its letter dated  04.01.2011, complainant asked the OP to indicate the time period within which the possession would be handed over. Again, vide its letter dated 12.07.2011, complainant asked the OP the status of the project. Finally the complainant sent legal notice dated 16.08.2011 stating that the project had been unduly delayed for the reasons attributable to the OP and the complainant was no longer interested in continuing in the project. Complainant called upon the OP-2 refund the amount for Rs.19,43,738/- alongwith interest @18% per annum.

3.    Defence raised by the OP was that since the complainant had cancelled the booking, OP was entitled to forfeit the earnest money which was 15% of the total sale consideration.

4.    Before proceeding further, it may be mentioned here that the allotment of the flat in the project Gold Pal, B-Tower was changed to Gold Palm A-Tower by the OP vide its letter dated 22.12.2010. Nothing on record since suggests  any protest from the side of the complainant to the said change, issue is insignificant.

5.    Next submission made by the OP is that as per agreement the project was to be  completed within a period of 36 months from the date of agreement i.e. on or before 04.06.2012. The said period was extendable by six months . Ld. Counsel for the OP has drawn the attention of this Commission to clause 30 (a) of the agreement which provided for further extension of period of construction by a reasonable time. Be that as it may, OP filed its written version in October, 2012. It was not the case of the OP that the construction of the project was complete  by that time. In all fairness, the counsel for the OP during the course of arguments stated that even as on date, completion certificate had not been given the authorities despite the fact that a notice in this behalf was sent to the authorities.

6.    With the aforesaid spectrum of facts, two questions arise a) whether the complaint was premature and a period for construction was  still available to the OP  b)whether the complainant had opted out of the project for no fault of the OP.

7.    Period of 36 months (30+6) for the completion of the project came to an end on 04.06.2012. Extension by another 5 years, by no stretch of imagination would bring the case within the ambit of the expression `further reasonable extension’. Clearly the OP has failed to perform its part of agreement.

8.    Admittedly the scheme in question was a construction linked plan. Disappointed with the pace of progress of construction, complainant wrote letters dated 08.05.2010, 04.01.2011 and 12.07.2011. OP was called upon to inform the complainant the status of the project. All these letters admittedly remained un-replied. OP failed to inform the complainant of the period by which the possession was likely  to be handed over. It leads to a safe inference that the pace of construction was not in accordance with the construction-linked-plan. Complainant was thus justified in not making payments of further installments. Plea of the OP that it was the complainant who opted out of the scheme is devoid of merits.

9.    Ld. Counsel for the OP has argued that the complainant was an investor and not interested in having a house to live in. OP has relied upon a letter dated 12.07.2011 written by the complainant. Complainant expressed his grievance of keeping his money blocked for 5 years. He was deprived of the opportunity of not utilizing the same for another project. In other words he was interested in a flat for which he could have got a timely delivery.

10.  Defence of the OP that the complainant was entitled to compensation in the event of the delay of project is of no avail. Hon’ble National Commission in the case of Puneet Malhotra Vs. Developers Ltd., II (2015) CPJ 18 (NC) held that the proposition applied only in a case where construction of the flat was delayed but despite delay, the buyer accepted possession.

11.  Ld. Counsel for the OP has relied upon the case of Randhir Singh Vs. Omaxe Chandigarh Developers (P) Ltd. reported as I(2015) CPJ 514 (NC) in support of his contention that in the event of the complainant being a defaulter in making payments of installments, he is not entitled to any interest. In the present case as discussed above, complainant is not a wilful defaulter. He opted out of the scheme only after getting  disappointed with the pace of construction. The case law thus is not applicable to the case  in hand. In view of the foregoing discussion, complaint is allowed and the OP is directed to pay to the complainant as under:-

 (a)  to refund the amount of Rs.19,43,738/- alongwith interest @18%  per annum from the date of its deposit till the date of its realization.

(b)   to pay compensation to the tune of Rs.3,00,000/- for harassment , inconvenience, sadness, anxiety and mental agony caused to the complainant.

(c )  litigation charges to the tune of Rs.1,00,000/-.

OP to pay to  the complainant the abovesaid amounts within a period of 60 days from today failing which the same shall carry interest @24% per annum. Complaint is accordingly disposed of.

File be sent to records.

 

 

 (N P KAUSHIK)
MEMBER (JUDICIAL)