IN THE STATE COMMISSION: DELHI

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

Date of Hearing:23.11.2020 

Date of Decision:09.12.2020

Complaint No.236/2019

IN THE MATTER OF

SH. UDAY SHANKAR LAL

S/o Sh. Ram Chander Lal

AIR Head Quarter, R.K. Puram,

West Block-6, New Delhi….Complainant

VERSUS

M/S OMAXE BUILDHOME LTD.

Through its Managing Director

Having its Registered Office at:-

10, Local Shopping Centre Kalkaji,

New Delhi-110019

M/S REET PROPERTIES PVT. LTD.

Through its Managing Director

Mr. Vinay Garg,

UG-11, Chokani Square,

Sector-18, Noida-201301(U.P)                          ....Opposite Parties

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER 

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

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

Present:       None for the complainant

                   Sh. Harish Kumar, Counsel for the OP

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           The complaint number CC-765/2014 filed by Sh. Uday Shankar Lal against the M/s Omaxe Buildhome Limited and anr. having been returned by the Consumer Disputes Redressal Forum-VI, New Delhi by virtue of an order dated 07.01.2019 on the ground that they lack pecuniary jurisdiction to hear and to dispose of the complaint, this complaint bearing number C-236/2019 has been filed before this Commission for the redressal of his grievances. Sh. Uday Shankar Lal and M/s Omaxe Buildhome Limited and anr. would be hereinafter referred to as complainant and OPs respectively. The relief claimed in this complaint are these.

In view of the above facts and circumstances, it is most respectfully prayed that this Forum may graciously be pleased to:-

1. Direct the OPs to restore the booking of shop no. 12A, Ground Floor, OPC, Greater Noida, Uttar Pradesh and to take further payment at the rate and discounts as agreed in the agreement dated 22.09.2013 and;
2. Direct the OPs herein to not to sale or alienate the Shop No. 12A, Omaxe Palm Court” situated in Sector-MU, Greater Noida, U.P. to any other prospective buyer or customer till the final disposal of the present case; and/or
3. Direct the OPs pay a compensation of Rs. 1,00,000/- to the complainant for the mental agony, and untoward expenses caused to the complainant due to deficiency of service, negligence and breach of contract and;
4. Direct the OPs to pay the litigation expenses of Rs. 50,000/- and/or;
5. Pass such other or further order/orders as this Hon’ble Forum may deem fit and proper in the interest of justice.

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant being induced by the OPs applied for purchasing a shop investing its hard earned money for the self employment of his wife Smt. Asha Lal. Booking amount of Rs. 1,83,000/- was paid through cheque no. 921862 dated 22.09.2013 drawn on Punjab National Bank, R.K. Puram, Delhi. The construction of the project as agreed to was to be completed by July 2014 but the construction was not even started till January 2014. It is further pertinent to mention herein that the construction of the payment was to be made by the complainant as per the construction linked. The complainant has made a total payment of Rs. 6,79,405/- by efflux of time against the agreed total cost of shop i.e. 19,32,425/-. Lastly Rs. 2,00,000/- was paid on 10.03.2014 as pre demand raised by the OPs.
4.           However much to the surprise of the complainant he received a call from the representative of the company on 31.03.2014 to change the shop and asked for purchase of some shop at 1^st or 2^nd floor of the project which was in utter violation of the agreement between the parties. The complainant being a salaried person was even otherwise not able to make payment for the enhanced rate to be incurred for the change of shop and thus the complainant did not accept the offer as made by the OP-1 for change of shop. The OP-1 had further terminated the booking of the complainant for the said shop vide letter dated without affording any opportunity.
5.           The complainant has alleged that the arbitral cancellation of the booking of shop by the OP without a notice and that too after receipt of the last payment on 10.03.2014 amounts to the deficiency in services and unfair trade practice. However the shop being a necessity for the complainant and his family, he paid the amount demanded by the OPs.
6.           But the fact remains that the construction of the shop was going at snail’s pace even after numberous requests and reminders by the complainant. Later the booking was cancelled arbitrarily which amounts to the deficiency service of the OPs. The complainant made personal visits in the office of the Op-2 for restoration of the booking of the shop but all his efforts done in this behalf proved an exercise in futility.
7.           The complainant got a legal notice dated 31.05.2014 served through its counsel to the OP-1 asking for restoration of the booking of the said shop and further to receive the balance payment against the allotment of shop but of no avail.
8.           In these circumstances the complainant had filed a complaint before the District Forum for the redressal of his grievances which complaint, on the ground of pecuniary jurisdiction was returned and filed before this Commission.
9.           The Ops have defended this complaint filing their written statement stating that the complainant is an investor and not a consumer within the meaning of Section 2(1)(d) of the Act and thus not entitled to raise a consumer dispute. However no evidence has been led by the OPs disputing this contention. The averment of the OPs that the wife of the complainant for whom the shop was intended to be purchased has no experience to run the shop cannot be accepted as it is for the complainant to manage it. Secondly the OPs have raised the objection that this Commission lacks the territorial jurisdiction relying on clause 30 of the agreement between them, is overruled since under Section 17 of the Act the complaint can be filed where the OPs reside or work for gain. The Ops have their establishment in Delhi which means clouds to this effect do not exist. Thirdly their objection that as per the agreement issues are required to be taken first before the Arbitrator cannot be accepted relying on the judgment of the Hon’ble NCDRC in the matter of Aftab Singh and ors. Versus Emaar MGF Land Limited and Anr. as reported in III [2017] CPJ 270 (NC) holding that an arbitration clause in the agreement between the complainant and builder cannot circumscribe the jurisdiction of the Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act. Fourth the averment of the OPs that there exists no cause of action cannot be allowed as the cause of action has commenced once they have cancelled the unit booked by the complainant.
10. Having regard to the facts and circumstances of the case the objections of the OPs defending the complaint are sequentially rejected. In this view of the matter I am of the considered opinion that the complaint deserves to be accepted and it is ordered accordingly.
11. Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
12. The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation.  It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation.  One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.  But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.
13. From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
14. The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
15. In the facts and circumstances of the case are directed the OPs to restore the booking of shop booked by the complainant on making the payment as agreed to. The OPs also directed to pay an amount of Rs. 25,000/- as compensation which would also include the litigation cost.
16. Ordered accordingly leaving the parties to bear the cost. Directions be complied with within a period of two months from the date of receipt of this order.
17. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

09.12.2020

sl