CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

    Case No.100/2012

ALKA SHARMA,

602-D/9-A, WARD NO.3, MEHRAULI,

NEW DLEHI – 110030                                 …..COMPLAINANT

Vs.   

1. OMAXE BUILHOME PRIVATE LTD.

12, LOCAL SHOPPING CENTRE, KALKAJI,

NEW DELHI – 110019                 ……OPPOSITE PARTY NO.1

2. ROHTASH GOEL,
3.  

MANAGING DIRECTOR

OMAXE BUILHOME PRIVATE LTD.

12, LOCAL SHOPPING CENTRE, KALKAJI,

NEW DELHI- 110019                         ……OPPOSITE PARTY NO.2

Date of Institution-09.03.2012

              Date of Order- 07.02.2023

RITU GARODIA- MEMBER

The complaint pertains to deficiency in service on the part of OP in not refunding the amount deposited by complainant.

The facts stated in complaint are that complainant is a teacher by profession and OP is a company carrying on a business of construction. The complainant submits that OP advertised its intention of launching residential project by name of Omaxe Palm Greens, Sector MU Greater Noida, UP. The complainant was approached by OP dealer namely Bank Officers Welfare Organization. The complainant on receipt of a letter dated 11.10.2006 booked a two bedroom flat in the aforesaid project after paying Rs.4,12,500/- through cheque and draft.

The complainant alleges that the project was to be launched in January/ February 2007 but the project was launched in September, 2008. On account of delay in launch of project the complainant suffered financial loss by way of interest as well as missing other good opportunities of investment in better projects. The complainant lost interest in this project and requested the OP to refund her booking amount of 31.3.2008 with interest. The complainant sent various request letters dated 11.4.2008, 24.6.2008, 30.6.2008, 11.7.2008, 5.8.2008, 20.12.2008, 27.12.2008, 9.1.2009, 15.1.2009, 23.1.2009, 2.2.2009 and 1.10.2009.

          OP vide letter dated 8.10.2009 informed the complainant that construction has started and request for cancellation could not be accepted. Thereafter, complainant sent more letters to OP asking for refund. The complainant instead of heeding her requests for refund canceled the flat in question vide letter dated 10.3.2010. The complainant alleged that she approached the OP after receiving this letter. Initially, she was assured that her amount would be refunded but later on OP refused to refund the said amount. The complainant prays for refund of the booking amount of Rs. 4,12,500/- with interest @18% p.a., Rs. 2,00,000/- as compensation and Rs. 20,000/- as litigation cost.

          OP in its reply has submitted that the complaint is barred by limitation. It is also submitted that this Forum has no territorial jurisdiction to adjudicate upon the present complaint. It is submitted that the complainant has booked a flat as an investment and to resale the said booking of flat.

          It is stated that there is a breach of contractual obligation by the complainant who failed to pay the agreed sale consideration resulting in heavy loses to OP. After giving several opportunities to the complainant to make payment of dues, OP cancelled the booking vide its letter dated 10.3.2010. It is further stated that no privity of contract exist between complainant and OP2.

          OP has categorically stated that “Bank Officers Welfare Organization” is not a dealer of OP. OP admits that a registration for allotment of a flat admeasuring 1100 sq feet in any future residential project on 22.11.2006 was made by complainant with OP. A sum of Rs. 4,12,500/- was received as registration amount. It is clarified that the registration was not for any particular flat or any particular project. OP was under an obligation to allot of flat to a complainant within the period of one year form the date of registration. On 21.9.2007, OP allotted apartment No. 903, 9^th Floor in Sugar Palm A Tower in its project Omaxe Palm Greens, Sector MU, Greater Noida. OP informed the complainant about the construction vide its letter dated 3.7.2008 while requesting for the next installment that had become due and payable. The complainant did not pay any amount to OP despite various reminders/demand letters dated 12.8.2008, 18.11.2008, 3.2.2009, 10.2.2009, 18.9.2009.  OP has denied receiving any letter of refund from the complainant. OP submits that the complainant was not entitled to cancel the registration and seek refund as per the terms of registration. OP had to cancel the allotment as it has not been received any further payment.

          The complainant in her rejoinder has stated that the complainant has not received any refund and so the cause of action is still continuing. It is not barred by limitation. Complainant clarifies that she had no intention of reselling the booking/ flat. She invested in the OP’s project to reside. As OP failed to launch the project in January/ February 2007, she lost interest in residing in the project and demanded refund.

The complainant after making a payment of Rs.4,25,000/-, received a receipt from Bank Officer Welfare Organization. The complainant has denied receiving any application dated 22.11.2006. The complainant reiterates that she applied for booking of a flat vide an application dated 28.10.2006 and received a receipt on 13.12.2006. The complainant received a letter dated 3.7.2008 wherein OP had increased the booking amount from Rs.4,12,500/- to Rs.4,20,000/-. The complainant has denied receiving any letter dated 21.9.2007, 12.8.2008, 18.11.2008, 3.2.2009, 10.2.2009, 18.9.2009.

The complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Copy of letter dated 11.10.2006 and photocopy of DD/ Cheque issued towards payment is exhibited as Exh. CE/A& CE/B.
2. Copy of letters seeking refund is exhibited as Exh. CE /C (colly).
3. Copy of OP’s letter 8.10.2009 is exhibited as Exh. CE/D.
4. Copy of Complainant’s letters to OP is exhibited as Exh. CE/E (colly).
5. Copy of OP letter dated 10.3.2010 is exhibited as Exh. CE/F.
6. Copies of cheques, receipt, letters is exhibited as Exh. CE/G.
7. Copy of letter dated 13.11.2009 is exhibited as Exh. CE/H.
8. Copy of letter dated 3.7.2008 is exhibited as Exh. CE/I.

OP has also filed its evidence by way of affidavit by Mr. Pawan Aggarwal and has exhibited the following documents:-

1. Copy of Board Resolution dated 21.3.2012 is exhibited as Ex. RW1/1.
2. Copy of complainant’s application dated 22.11.2006 is exhibited as Ex. RW1/2.
3. Copy of receipt issued by OP is exhibited as Ex. RW1/3.
4. Copy of OP letter dated 21.09.2007 is exhibited as Ex. RW1/4.
5. Copy of letter dated 3.7.2008 is exhibited as Ex. RW1/5.
6. Copies of all letters/ reminders are exhibited as Ex. RW1/6 (Colly).
7. Copy of letter dated 10.3.2010 along with postal receipt is annexed as Ex. RW1/7.

Complainant has filed her written submissions where they have denied complainant’s application dated 22.11.2006. Complainant has also denied letter of allotment dated 21.9.2007. She also submits that the application dated 22.11.2006 clearly mentioned Banks Officers Welfare Organization as OP dealer and receipts issued by OP also mentioned booking under the name of Bank Officers Welfare Organization. 

          This Commission has considered the arguments advanced by both the parties and material on record. It is admitted by both the parties that complainant has booked a two bedroom flat in OP project on payment of Rs.4,12,500/-. The complainant alleges that she received a letter dated 11.10.2006 from Bank Officers Welfare Organization who was dealer of OP. Complainant has filed copy of cheque dated 28.10.2006 in the name of Bank Officers Welfare Organization and a copy of draft dated 15.11.2006 in the name of Omaxe Buildhome (P) Ltd. in lieu of payment of Rs.4,12,500/-. OP has also admitted receiving the amount for booking in a project to be launched by Omaxe.

          OP has filed an application form dated 22.11.2006 duly signed by the complainant, though she has denied receiving this application in her rejoinder. However, complainant has not denied her signature on the said form. The relevant portion reproduced as under:-

1. That the Company will allot any Unit within a period of one year from the date of this advance registration.
2. In case the Company fails to allot any Unit to me/us within a period of twelve months from the date of advance registration. I/we shall have the right to cancel the advance registration and withdraw the advance registration amount by giving thirty days notice, in which case, the Company shall be liable to refund the amount of advance registration with interest @9% per annum from the date of payment of advance registration.
3. That in case the Company fails to allot any Unit within a period of twelve months from the date of advance registration, it can refund the amount of advance registration to me/us with interest @9% per annum from the date of receipt of payment.
4.  

5. That I/we agree to pay further amounts as and when demanded by the Company prior to allotment, failing which the Company will cancel my/our advance registration and refund the amount paid by me/us without any interest.
6. That on receipt of intimation of allotment of the Unit in any project, I/we agree to sign the formal application for allotment of the Unit and shall abide and be bound by the terms and conditions as per company’s standard format, contents of which have been read and understood by me/us.
7.  That the Company may refund the registration amount at any time after canceling the advance registration due to any reason but if the refund is made after six months of advance registration, it will pay an interest @9% per annum for period after six months until refund.

The said application also shows BOWO as the name of the dealer.

OP has filed letter of allotment dated 21.9.2007 wherein complainant was allotted apartment no. 903 in Sugar Palm A- Tower in Omaxe Palm Greens. OP has also filed a letter dated 3.7.2008 wherein it is stated that the Agreement/ Allotment letter containing detail terms and conditions shall be sent to you for your execution shortly.  Perusal of the letter dated 21.9.2007 reveals that the said letter has not been signed by any authorized signatory. In fact, there is no signature by any person on that letter. OP has also not filed any proof of service of the said letter to the complainant. Subsequent letter dated 3.7.2008, which is admitted by both the parties, states that the Agreement will be sent to the complainant and the development of residential project Omaxe, Palm Greens is in full swing. The letter is duly signed by authorized signatory. The accompanying details of the payment show that the booking was done on 22.11.2006 and the construction has started on 23.7.2008. These details are also signed by authorized signatory. There is no mention of allotment letter dated 21.9.2007 in any of the letters filed by OP. It was the duty of OP to inform the complainant about the allotment. However, no tangible proof in this regard has been filed by OP. Merely, filing an unsigned letter giving allotment details with their reply does not establish the service of this letter.

As per clause ii and iii of application form dated 22.11.2006, filed and relied on by OP, if there is no allotment within a period of 12 months from the date of advance registration, the complainant can cancel the advance registration and withdraw the amount and the company will admittedly be liable to refund the amount with interest @9% p.a. from the date of payment of advance registration.

Admittedly, OP cancelled the complainant’s booking vide letter dated 10.03.2010. The complaint was filed on 09.03.2012 that is well within limitation U/S 24A of CPA 1986.

It is further contended that the flat in question was booked for investment purpose and to resale the booking of the said flat. The complainant has specifically mentioned in her rejoinder that her investment was for the purpose of residing in the said flat. No evidence has been brought on record to show that the complainant has any other property in the same area that can raise some presumptions that the flat was booked for investment purpose. Moreover, there is no documentary evidence on record to prove that the complainant had been trading in real estate business.

National Consumer Disputes Redressal Commission in Kavita Ahuja vs Shipra Estate Ltd. & Jai Krishna 1(2016) CPJ 31 (NC) has observed “If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.”

          Hence, there is no evidence that the complainant has made the booking for the purpose of investment.

It is clear that the application for the booking was made on 22.11.2006 and the first intimation of allotment was given vide letter dated 3.7.2008 which is beyond a period of 12 months. Hence, we find OP guilty of deficiency in service and direct OP :-

1. To refund Rs. 4,12,500/- with 9% interest from date of advance registration i.e. 22.11.2006 till payment.
2. To pay Rs. 30,000/- as compensation for mental stress and physical inconveniences.
3. To pay Rs. 10,000/- as litigation expenses.

This order be complied with within 30 days from the date of receipt of the order. Copy of the order be supplied/ sent to the parties free of cost as per rules.

File be consigned to record room.