Chandigarh

StateCommission

A/255/2023

ASHWINDER KAUR W/O SHRI BIRINDER SINGH - Complainant(s)

Versus

OMAXE CHANDIGARH EXTENSION DEVELOPERS PVT LTD - Opp.Party(s)

LALIT CHANDER SHARMA

15 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Appeal No.	:	255 of 2023
Date of Institution	:	22.09.2023
Date of Decision	:	15.02.2024

 

 

 

 

 

1]      Ashwinder Kaur wife of Shri Birinder Singh Gujral, resident of House No.2528, Sector 35-C, Chandigarh.

2]      Birinder Singh Gujral son of Shri Tarlok Singh Gujral resident of House No.2528, Sector 35-C, Chandigarh.

 

 

….Appellants/Complainants.

Versus

Omaxe Chandigarh Extension Developers Pvt. Ltd., India Trade Tower, First Floor, Madya Marg Extension, New Chandigarh (Mullanpur), District S.A.S. Nagar, Mohali, Punjab.

 

...Respondent/Opposite Party.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                         MR. RAJESH K. ARYA, MEMBER

ARGUED BY :-  

Sh. Lalit Chander Sharma, Advocate for the appellants.

Sh. Ashim Aggarwal, Advocate for the respondent.

 

PER  RAJESH  K. ARYA, MEMBER

                    This appeal has been filed by the complainants (appellants herein) against order dated 20.07.2023 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short ‘District Commission), vide which, their Consumer Complaint No.1125 of 2019 has been dismissed by the District Commission by observing in Paras 8 and 9 as under:-

“8.     After going through the document on record it is abundantly clear from Annexure C-3 letter dated 21.5.2018 that the offer of possession of the unit in question was made to the complainants. Admittedly the complainants received commitment charges till offer of possession.  However, the complainants still asking for commitment charges on the ground that the unit in question was not complete in all respect.   As per OP they offered possession after they obtained occupancy certificate and the unit is ready in all respect. 

9.      A thorough examination of record shows that the complainants have placed nothing on record which could prove that the unit in question was not complete in all respect.  Had this been the case the complainants would not have made the full payment on 5.6.2018 after receiving the letter of offer of possession on 21.5.2018.  If there were any discrepancies in the unit in question then the complainants should not have made the remaining payment towards the price of the unit in question but on the contrary she made the full payment after receiving the possession letter, which itself falsifies the stand of the complainants that they are entitled for commitment charges as the unit in question was not complete in all respect. Even otherwise she utterly failed to prove her case by way of any cogent documentary proof. Even the complainants have already taken possession of the unit in question on 30.4.2022 as evident from the Annexure X placed on record by the counsel for the complainant itself. Thus, the complainants have miserably failed to prove their case and the complaint is meritless.”

2]                In the present appeal, the sole ground to lay challenge to the impugned order is that the construction was not complete on the date when the possession was offered and the appellants also lodged a complaint with the respondent against the incomplete construction in writing on 25.07.2018, Annexure C-4, which the District Commission, failed to appreciate while passing the impugned order.

3]                Per contra, Counsel for the respondent argued that the District Commission righty dismissed the complaint of the appellants by holding that they utterly failed to prove their case by way of any cogent documentary proof. He further argued that the appellants bought the commercial unit i.e. SCO solely for commercial activity and not even a single averment has been made in the complaint that the same was purchased by the appellants for earning their livelihood by way of self-employment. Lastly prayer for dismissal of appeal has been made.

4]                Before dealing with the rival contentions of the parties, it may be stated here that firstly there is a delay of 19 days (as per the office 12 days) in filing the present appeal, for condonation whereof, a miscellaneous application bearing No.743 of 2023 has been filed alongwith the appeal. It is stated in the application that the appellants approached the Counsel well within time and gave the impugned order dated 20.07.2023 but due to some inadvertent mistake, the said order was misplaced and could not be traced and as such, delay occurred in filing the appeal, which is neither intentional nor deliberate. The application is duly supported by an affidavit of Sh. Lalit Chander Sharma, Advocate. We are of the view that the explanation given in the application is enough and sufficient to condone the delay. As such, the delay stands condoned. MA/743/2023 stands disposed of accordingly.

5]             As regards the objection raised that the appellants bought the commercial unit i.e. SCO solely for commercial activity and not even a single averment has been made in the complaint that the same was purchased by the appellants for earning their livelihood by way of self-employment, it may be stated here that the appellants in the rejoinder filed before the District Commission have specifically stated that the property in question was purchased only for earning livelihood as complainant No.2 was jobless for a long time at the time of purchase of the property and as such, complainant No.2 had planned to run some business for earning his livelihood. Therefore, in our concerted view, the appellants do fall within the definition of consumer as they have proved on record by way of filing rejoinder that the unit was purchased by them only for earning livelihood as complainant No.2 was jobless for a long time. Accordingly, the objection raised in this regard stands rejected.

6]             Undisputedly, as per addendum to allotment letter dated 15.6.2016, upon receipt/realization of a sum of Rs.52,50,000/- as an advance of basic sale consideration of the unit in terms of Annexure B of the allotment letter, the respondent - company was to pay a sum of Rs.52,500/-  per month as commitment charges against the said advance commencing immediately from the date of expiry of 60 days from the date for booking of the said unit and only after realization of 100% of basic sale consideration amount till offer of possession for fit out. The possession of the unit in question was offered on 21.05.2018 after obtaining occupancy certificate dated 21.02.2018 and till April 2018, the appellant was paid the commitment charges. So far as the complaint dated 25.07.2018, Annexure C-4, lodged by the appellants with the respondent with regard to the incomplete construction is concerned, we have perused the same and nowhere from this document, could it be established that the construction was incomplete. The District Commission rightly held that the appellants have placed nothing on record which could prove that the unit in question was not complete in all respect. Accordingly, we are of the view that the claim of the appellants that they are entitled to commitment charges beyond the date of offer of possession is not tenable and they are not entitled to the same.

7]                However, bare perusal of record transpires that since the possession was offered to the appellants by the respondent on 21.05.2018 and they have only been paid commitment charges up-to April, 2018, therefore, they are entitled to commitment charges for the month of May, 2018 also. Therefore, the respondent is entitled to pay commitment charges of Rs.52,500/- to the appellant for the month of May, 2018 as possession of the unit was offered in May 2018 i.e. on 21.05.2018. We are also of the view that the appellants are also entitled to lump-sum compensation on account of aforesaid deficiency in service i.e. for not pay commitment charges for May 2018 on account of which they also suffered mental agony and harassment.

8]                For the reasons recorded above, the appeal filed by the appellants is partly accepted. The respondent/opposite party is directed as under:-

1. to pay commitment charges of Rs.52,500/- to the appellants/complainants for the month of May 2018, within a period of 30 days from the receipt of certified copy of this order, failing which, the respondent shall be liable to pay interest @9% p.a. on the aforesaid amount from the date of filing the complaint i.e. 20.12.2019 till actual realization.
2.  to pay lumpsum compensation of Rs.15,000/-, to the appellants/complainants on account of deficiency in service, mental agony and harassment & litigation cost, within a period of 30 days from the receipt of certified copy of this order, failing which, the respondent shall be liable to pay interest @9% p.a. on the aforesaid amount from the date of passing of this order till actual realization.

9]                Certified copy of this order be sent to the parties free of charge.

10]              File be consigned to the Record Room after completion.

Pronounced.

15.02.2024.

 

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

 

(RAJESH K. ARYA)

MEMBER

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