Chandigarh

StateCommission

CC/581/2017

Mrs. Preeti Sehgal - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers (P) Ltd. - Opp.Party(s)

Arjun Grover, Adv.

25 Apr 2018

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	581 of 2017
Date of Institution	:	01.08.2017
Date of Decision	:	25.04.2018

 

Mrs.Preeti Sehgal, W/o Mr.Vikrant Sehgal, R/o H.No.3075, Sector 38-D, Chandigarh.

……Complainant

V e r s u s

Omaxe Chandigarh Extension Developers (P) Limited, SCO 143-144, Sector 8-C, Chandigarh, through its Managing Director

              .... Opposite Party

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        SH.DEV RAJ, MEMBER

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:       Sh.Arjun Grover, Advocate for the     complainant.

      Sh.Ashim Aggarwal, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The facts in brief are that the complainant, for her residential purpose, purchased a flat bearing no.466, Ground Floor, having built-up area of 1725 square feet, for total cost of Rs.55,60,000/- in a project namely “Omaxe Cassia”, at Mullanpur, Punjab, floated by the opposite party, on making payment of Rs.8 lacs, as booking amount. She opted for construction linked payment plan. Second installment to the tune of Rs.8,61,715/- was paid by her, vide cheques dated 26.08.2011 and 03.09.2011 respectively. Provisional allotment in respect of the said unit was issued in favour of the complainant, vide letter dated 23.12.2011. After about nine months of booking, allotment letter/agreement was executed between the parties i.e. on 18.05.2012. Thereafter, she continued to make payment towards price of the said unit, as and when demanded by the opposite party. In response to email dated 01.03.2013 Annexure C-4, she was assured by the opposite party vide letter dated 25.04.2013 Annexure C-5, that possession of the constructed unit will be offered within a period of 24 months starting from the date of allotment i.e. from 23.12.2011. It was stated that committed period to handover possession of the unit had expired and even till the time, when this complaint was filed, the opposite party failed to offer possession, despite making payment of Rs.51,77,732/- by the complainant towards price of the said unit. It was prayed that let directions be issued to the opposite party to hand over possession of the unit, in question, to the complainant, and also to make payment of interest on the deposited amount, @18% p.a., from the respective dates of payment till delivery of possession; pay compensation for mental agony, physical harassment and also litigation expenses.  

2.         Reply to the complaint was filed by the opposite party, raising many preliminary objections like as per Clause 41 of the allotment letter/agreement, this Commission has no jurisdiction, to entertain and decide dispute between the parties, because as per above said Clause, the matter needs to be referred to an arbitrator for adjudication. It was stated that the complainant did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act, she being an investor. She is living at House No.3075, Sector 38-D, Chandigarh, the unit was purchased to earn profits in future. Pecuniary and territorial jurisdiction of this Commission was also challenged.
3.         Purchase of flat by the complainant, in the manner, referred to above, was admitted. There is no dispute qua total sale consideration of the unit. It was stated that as per Clause 23 (b) of the said Allotment Letter/Agreement, it was agreed to between the parties that the Company shall put its best efforts to complete the construction/development work within 30 months (24 months (+) 06 months grace period)  from the date of signing of allotment letter dated 18.05.2012 i.e. upto 17.11.2014 and the said period was to be computed, after excluding Saturdays, Sundays etc., as such, time was not the essence of contract. It was averred that, in case of delay in handing over possession of the said unit, the opposite party was liable to pay compensation @Rs.10/- per square feet, per month of the super area of the unit, for the period of delay, and, as such, the complainant cannot seek interest on the deposited amount. It was pleaded that the opposite party is making best efforts to complete construction of the unit and hand over possession thereof, to the complainant. Prayer was made to dismiss the complaint.
4.         In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite party.
5.         The parties led evidence in support of their case.
6.         During pendency of this complaint, under orders passed by this Commission, possession of the unit was delivered to the complainant on 14.01.2018. As such, at the time of arguments, the contesting parties restricted their issues only with regard to delay caused in handing over possession of the said unit and compensation payable for such delayed period. In view of that, it is not necessary for us to go into other issues, raised in the written statement filed by the opposite party.  
7.         We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
8.         Provisional allotment letter, in respect of the unit, in question, was issued in favour of the complainant on 23.12.2011. The complainant opted for construction linked payment plan. Allotment Letter/Agreement was signed between the parties on 18.05.2012. Total price of the unit was fixed at Rs.55,60,000/-. It is also not in dispute that by the time this complaint was filed, the complainant had already paid an amount of Rs.51,77,732/-. (inclusive of service tax). As per Clause 23 (b) of the said Allotment Letter/Agreement, it was clearly stated by the opposite party that the Company shall put its best efforts to complete the construction work within 30 months (24 months (+) 06 months grace period)  from the date of signing thereof i.e. latest by 17.11.2014. Possession of the unit was delivered only on 14.01.2018, during pendency of this complaint, on orders of this Commission. Admittedly, there is a delay in handing over possession of the unit, in question, to the complainant. Facing with the situation, Counsel for the opposite party contended that as per Clause 23 (b) of the Agreement, beyond the period of 24 months, the opposite party can get further six months to deliver possession of the unit and while computing the above said period, Sundays, Saturdays, Bank Holidays, etc. are to be ignored, and that  the complainant, at the most, is entitled to compensation @Rs.10/- per square feet of super area of the unit.

                First coming to the question, as to whether, while computing the above said period of delay in handing over possession of the unit, Sundays, Saturdays, Bank Holidays, etc. are to be taken into account or not, it may be stated here that a similar question came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016,  and when dealing this issue, it was observed by this Commission, as under:-

 “We feel that the contention raised is liable to be rejected. In Clause 23(b) of the Agreement, it is stated that possession will be delivered within 24 months, from the date of allotment letter, with six months extension. It is further stated that when computing the said period all Saturdays, Sundays and Bank Holidays will be excluded. A similar issue came up for consideration before this Commission qua another project of the opposite parties, in the case of Dr.Divya Dahiya Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another, Consumer Complaint No.57 of 2016, decided on 15.07.2016, wherein, it was observed as under:-

“The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The allotment letter for independent floor in Row-Housing Project “Silver Birch” in the project of the Opposite Parties (Annexure C-4) was issued to the complainant on 30.08.2011. As per Clause 31(a) of the allotment letter, the Opposite Parties were to complete the development of the unit within 24 months or within an extended period of six months from the date of start of construction, subject to force majeure conditions. Since allotment letter is dated 30.08.2011, by computing 24 months plus 6 months period, the Opposite Parties were bound to deliver possession of the plot, in question, by 01.03.2014. The Opposite Parties have stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body. Apparently, for seeking six months extension beyond 24 months or beyond six months extended period, the Opposite Parties owe an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. Thus, when no explanation for extension of six months period has been furnished, the Opposite Parties at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or period on account of Sundays/Holidays etc. This Commission in Consumer Complaint No.153 of 2015 titled ‘Mr. Madan Lal Taneja and another Vs. M/s Omaxe Chandigarh Extension Developers P. Ltd.’ decided on 03.11.2015, facts of which were almost identical, held that Opposite Parties were to hand over possession within 30 months from the date of start of construction. Thus, the possession of the unit, in question, was to be delivered by 01.03.2014.”

 

                Similar view has also been reiterated by this Commission, in number of cases, thereafter, in respect of the same project. It was specifically held that when there is no explanation of getting extension of 6 months’ period to deliver possession beyond the stipulated date, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. Out of the two benefits, only one can be made available to the opposite party. In this view of the matter, the contention raised by Counsel for the opposite party, being devoid of merit, must fail and the same stands rejected.

                Now coming to the plea taken by the opposite party to the effect that as per Clause 23 (h) of the Allotment Letter/Agreement, the complainant is entitled to compensation, only @Rs.10/- per square feet per month of the super area of the unit, it may be stated here that      the said Clause would be attracted only in a case, in which the delay is for reasonable period and it has occurred because of cogent unfavorable circumstances.  This clause would not apply in the cases, where builder after receiving substantial amount against the agreed consideration, deliberately failed to take any steps for completing construction of the units. In the instant case, opposite party has not shown any cogent circumstances or reason, which prevented it to complete construction of the unit and deliver possession thereof within the stipulated period.

                What relief can be granted to a consumer, in case of delay, in offering possession of a residential unit purchased, in the absence of any force majeure circumstances having been faced by the builder, also came up for consideration before this Commission in Ankur Gupta`s case (supra), wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice. Taking note of above said proposition of law, in the present case also, ends of justice would meet, if interest is granted for delayed period, to the complainant whereof 17.11.2014 till 14.01.2018, when possession was delivered to the complainant.

                Besides as above, the opposite party is also liable to pay compensation to the complainant, for providing her deficient service and guilty of adoption of unfair trade practice.

9.         Since the contesting parties restricted their arguments to the above said two issues, which have been dealt with by this Commission, as such, no other point, was urged, by them.
10.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:-
    1. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainant, possession of which had already been delivered on 14.01.2018 during pendency of this complaint, within three months, from the date of receipt of a certified copy of this order, on payment of registration and stamp duty charges, by her to the Registering Authorities.
    2. To pay compensation, by way of interest @12% p.a., on the entire deposited amount, to the complainant, from 17.11.2014 (promised date) till 14.01.2018 (the date when possession delivered), within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a. for the entire period aforesaid, till realization.
    3. To pay compensation, in the sum of Rs.1,00,000/-, on account of mental agony, physical harassment, caused to the complainant, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing this complaint till realization.
    4. To pay cost of litigation, to the tune of Rs.22,000/-  to the complainant, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing this complaint till realization.
11.         Certified Copies of this order be sent to the parties, free of charge.
12.         The file be consigned to Record Room, after completion.

Pronounced.

25.04.2018

 

Sd/-

(JUSTICE JASBIR SINGH (RETD.) PRESIDENT.

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

 Rg.