Chandigarh

StateCommission

CC/217/2019

Dev Raj Chumber - Complainant(s)

Versus

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

Karan Singla Adv.

20 Apr 2021

ORDER

  STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	217 of 2019
Date of Institution	:	24.09.2019
Date of Decision	:	20.04.2021

 

Dev Raj Chumber aged 58 years S/o Late Sh.Ram Kishan R/o House No.3116, Sector 24-D, Chandigarh

•  

Versus

 

Omaxe Chandigarh Extension Developers Pvt. Ltd., Regional Office SCO 143-144, Sector 8-C, Madhya Marg, Chandigarh-160008.

…..Opposite Party

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER

 

Present through Video Conferencing:-    

                     
Sh.Karan Singla, Advocate for the complainant.

Sh.Gazi Mohd. Umair, Advocate for opposite party.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    This complaint has been filed by the complainant seeking directions to the opposite party to pay compensation for the period of delay in offering possession of unit purchased by him in its project at Phase-3, Omaxe Cassia, New Chandigarh, Mullanpur, Punjab; compensation for mental agony and harassment; cancel letter dated 02.09.2019, Annexure C-13 whereby threat of cancellation of the unit in question was given etc.

2.           It is the case of the complainant that, one Sh.Lok Raj Saini had purchased unit no.795/Ground Floor, measuring 2200 square feet, in the aforesaid project of the opposite party, for which allotment letter/agreement dated 06.02.2013, Annexure C-3, had also been executed between him and the opposite party. As per condition 23 (b) of the said allotment letter/agreement, the opposite party committed to deliver possession of unit no. 795/Ground Floor within a period of 30 months (24 months plus 6 months extended period) i.e. latest by 05.08.2015. During the period intervening, the complainant purchased the said unit from Sh.Lok Raj Saini and the amount paid by him to the company was repaid by the complainant. After completing all the requisite formalities, the said unit was transferred in the name of the complainant on 24.12.2013. It has been stated that despite the fact that more than Rs.46 lacs stood paid by the complainant, possession of unit no. 795/Ground Floor was not offered to him, whereas it was to be delivered latest by 05.08.2015. In July 2016, when he visited the project site, he was shocked to see that that the opposite party changed the layout plans and unit no.795 no more remained as ground floor unit. Under those circumstances, he requested for relocation to unit no.793 Second Floor from 795 Ground Floor, in order to save PLC. However, since the opposite party still did not agree to waive of PLC, as such, under compelling circumstances, he requested the opposite party to relocate him to unit no.OCIF/FIRST/798, first floor, measuring 2200 square feet. Thereafter, despite the fact that the complainant had paid Rs.48,97,200/- towards sale consideration of unit no.OCIF/FIRST/798 plus Rs.1,76,540/- towards interest, yet, the opposite party failed to execute allotment letter/agreement in respect thereof. It was only on 29.11.2016, that fresh allotment letter/agreement Annexure C-8 was executed between the parties in respect of relocated unit no.OCIF/FIRST/798, whereby vide condition no.23 (b) now it was committed that possession thereof will be delivered within a period of 30 months (24 months plus 6 months) i.e. latest by 28.05.2019. Since there has been an inordinate delay in the matter, as the unit had been booked as far as back in 2011, as such, the complainant requested the opposite party to pay compensation for the delayed period but to no avail. Thereafter, vide letter dated 11.04.2019, Annexure C-10, the opposite party informed the complainant that the development at the project is on the verge of completion and that the possession of unit no.OCIF/FIRST/798 is ready for possession and made demand of Rs.13,70,555/-. The said demand raised was challenged by the complainant being illegal by way of sending number of letters to the opposite party but to no avail. On the other hand, the opposite party started sending letters to the complainant with a threat that in case the payment is not made, the allotment of unit will be cancelled. It has been stated that though the construction of unit no.OCIF/FIRST/798 was not complete even then the complainant was asked to take over possession of incomplete unit. Hence this complaint.
3.           His claim has been contested by the opposite party, on numerous grounds, inter-alia, that in the face of provisions of arbitration clause contained in the allotment letter/agreement to settle disputes between the parties, this Commission is not competent to decide this complaint; that the complainant did not fall under the definition of consumer, as he is a speculator; that this Commission did not vest with territorial jurisdiction to entertain this complaint; that this complaint is bad for nonjoinder of necessary party; that complicated questions of fact and law are involved in this complaint as such only the civil court has power to adjudicate the same and not this Commission;  that this complaint filed is barred by time; that the complaint filed is premature; that relocation to unit no.OCIF/FIRST/798 was made on the request of the complainant only; that possession of the said unit was offered to him vide letter dated 11.04.2019 on receipt of occupation certificate dated 23.01.2019 and also partial completion certificate dated 28.04.2017; that the complainant failed to make remaining payment and also did not take possession of the unit despite the fact that number of reminders were sent to him and under those circumstances letter with regard to cancellation of the said unit was sent to him; that delay if any in execution of the allotment letter/agreement was on the part of the complainant only.
4.           On merits, purchase of the unit bearing no.795/Ground Floor, measuring 2200 square feet, in the first instance, in resale from Sh.Lok Raj Saini; execution of allotment letter/agreement dated 06.02.2013 in respect thereof; non delivery of possession of the said unit by the committed date i.e. latest by 05.08.2015; relocation of the complainant to unit no.OCIF/FIRST/798 aforesaid; payments made by him as mentioned in the complaint have not been disputed. Remaining averments have been denied being wrong.
5.           In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in the written reply filed by the opposite party.
6.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including filing of written submissions.
7.           We have heard the contesting parties and have also gone through the entire record of the case, including the rejoinder as well as written submissions, very carefully.
8.           First of all, coming to the objection raised with regard to jurisdiction of this Commission with regard to settlement of this case through an Arbitrator, in the face of provisions contained in the allotment  letter/agreement, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No.701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by opposite party, in this regard, stands rejected.
9.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant case, record reveals that following documents have been issued by the opposite party in favour of the allottee, from their offices located at SCO Nos.139-140 and 143-144, First Floor, Sector 8C, Madhya Marg, Chandigarh, meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Offices at Chandigarh and personally works for gain thereat:-
   1. Payment receipt dated 11.03.2011, Annexure C-1
   2. Provisional allotment letter dated 23.12.2011, Annexure C-2
   3. Vide condition no.41 of the allotment letter/agreement also, it was agreed that courts at Chandigarh shall also have jurisdiction to entertain matters arising out in respect of the project in question;
   4. Letter dated 24.12.2013 with regard to genuineness  of documents
   5.  Letter dated 02.11.2016, Annexure C-6
   6. Letter dated 25.11.2016, Annexure C-7 and
   7. Payment receipts dated 23.12.2016 and 11.01.2016

 

Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint.

10.           As far as objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite party to establish that the complainant has purchased the unit in question to indulge in ‘purchase and sale of plots/units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since it failed to discharge its onus, hence we hold that the complainant is a consumer as defined under the Act. In this view of the matter, objection taken in this regard stands rejected. 
11.           Now coming to the merits of this case, it may be stated here that it is coming out from the record that in the first instance, the complainant had purchased unit bearing no.795, Ground Floor, measuring 2200 square feet, in resale, possession whereof was to be delivered within a total period of 30 months i.e. latest by latest by 05.08.2015. However, there is nothing on record that offer of possession in respect of the said unit was ever made to the complainant by 05.08.2015, despite the fact that substantial amount of more than Rs.46 lacs stood received by the opposite party. It is also coming out from the record that thereafter, on account of unilateral change in the layout plan, unit no.795 was not constructed on the ground floor, as a result whereof, the complainant was forced to go for relocation to unit no.OCIF/FIRST/798 aforesaid and for that unit, fresh allotment letter/agreement dated 29.11.2016, Annexure C-8 was executed between the parties. Vide clause 23 (b) allotment letter/agreement dated 29.11.2016, now the opposite party committed to deliver possession of unit no.OCIF/FIRST/798 within a period of 30 months i.e. latest by 28.05.2019. Thus, under these circumstances, the entire amount paid by the complainant to the opposite party towards initial unit bearing no.795, Ground Floor, measuring 2200 square feet, was utilized by the opposite party starting from 2013 till 28.11.2016. In our considered opinion, once the complainant has not been provided unit no.795 by the opposite party, as such, he is entitled to get interest on the said amount for the period the same was retained with the company, in respect thereof i.e. from the date of endorsement of the said unit i.e. from 24.12.2013 (date of endorsement) till 28.11.2016 (one day before the date of execution of agreement in respect of relocated unit no.OCIF/FIRST/798).  

                   Secondly, it is also coming out from the record that despite the fact that possession of unit no.OCIF/FIRST/798 was offered to the complainant vide letter dated 11.04.2019, Annexure C-10, yet, it is evident from the photographs Annexure C-15 colly. in respect of the said unit, placed on record by the complainant that lot of work with regard to sanitary fittings, paint, electric fittings, doors etc. is pending to be done therein. At the same time, it has also been mentioned in the offer of possession letter dated 11.04.2019 that development work at the project site is on the verge of completion. However, the opposite party has failed to place on record completion certificate to prove that the said development which was at the verge of completion on 11.04.2019, has been completed at the project site. Under these circumstances, it is held that incomplete possession of the unit in question was offered to the complainant in respect of unit no.OCIF/FIRST/798 and he was not obliged to take over the same. Mere obtaining of occupation certificate will not absolve the liability of the opposite party unless until, it is accompanied by completion certificate because it is settled law that before delivering possession of a unit, a builder/developer is obliged to obtain both occupation and completion certificates. As far as partial completion certificate dated 28.04.2017 reliance whereupon has been placed by the opposite party is concerned, it may be stated here that it is of no use, as the same appears to have been issued in respect of some other phase, because in the present case, allotment letter/agreement in respect of unit no.OCIF/FIRST/798 was executed between the parties only on 29.11.2016 and commitment to deliver possession thereof was given as 30 months i.e. till 28.05.2019. Furthermore, even the occupation certificate in respect of the unit no.OCIF/FIRST/798 has been obtained only on 23.01.2019 and at the same time it has been mentioned in offer letter dated 11.04.2019 that development work is on the verge of completion. It is therefore held that the complainant was not obliged to take over possession of unit no.OCIF/FIRST/798, in the absence of completion of the aforesaid remaining work and also completion certificate.  By offering incomplete possession of unit no.OCIF/FIRST/798 and on the other hand, demanding remaining amount under the threat of cancellation of allotment thereof, the opposite party has indulged itself into unfair trade practice. In this view of the matter, the letters sent to the complainant including letter dated 02.09.2019, Annexure C-13 intimating him regarding cancellation of the unit in question, in case the remaining amount is not paid, stand quashed.

12.           Now coming to compensation to be awarded to the complainant, in respect of non delivery of actual physical possession of unit no.OCIF/FIRST/798, it may be stated here that, as per condition no.23 (b) of the allotment letter/agreement, dated 29.11.2016, the opposite party committed to offer possession within a period of 24 months with grace period of 6 months i.e. total 30 months from the date of execution thereof, failing which, as per condition no.23 (h) it was liable to pay compensation @Rs.10/- per square feet per month of the super area of the unit in question, for the delayed period. Failure on the part of the opposite party to provide complete/effective possession of unit no.OCIF/FIRST/798 within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the unit, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period, they suffer mental agony, hardship and financial loss at the hands of the developers/builders. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, while discussing the above authorities and discarding the one-sided terms of the Buyer’s Agreements, the Hon’ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. In view of the observations of the Hon’ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.10/- per square feet per month of the super area of the unit in question as per clause 23 (h), which comes to a very meager amount, is not sufficient to compensate the complainant for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by him on account of this reason. Therefore, in addition to aforesaid penalty @Rs.10/- per square feet per month of the super area of the unit in question, after the expiry of stipulated date of delivery of possession i.e. after 28.05.2019 (30 months from 29.11.2016) onwards, the complainant is also entitled to simple interest on the entire amount deposited by him @ 6% per annum.
13.           At the same time, it is also held that if the complainant had stopped making payment of the remaining amount, when he could discover that the company is not in a position to hand actual physical possession of the property, as the construction of the unit and development at the project site is not complete and also necessary completion certificate has also not been obtained from the competent authorities,  he cannot be termed as defaulter, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the residential units by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. As such, objection taken in this regard stands rejected.
14.           As far as objection taken by the opposite party to the effect that this complaint is time barred, it may be stated here that once it has been proved on record that actual physical possession of the unit no.OCIF/FIRST/798 has not been delivered to the complainant, as such, there is a continuing cause of action in his favour. Furthermore, even if the period of two years are counted from the date of offer of possession letter dated 11.04.2019, Annexure C-10, which infact was a paper possession, even then also this complaint having been filed on 24.09.2019 is well within limitation. As such, objection taken in this regard stands rejected. At the same time it is also held that in the face of objection taken to the effect that this complaint is time barred, therefore, in the same breadth taking an objection to the effect that this complaint is premature did not hold the field and is accordingly rejected.
15.           As far as objection taken with regard to nonjoinder of necessary party is concerned, it may be stated here that the opposite party has failed to convince this Commission as to which party has not been impleaded in this complaint, especially, in the face of the fact that all the transactions, referred to above, have been carried out between the complainant and the opposite party only. Under these circumstances, bald objection taken in this regard has no value in the eyes of law and is accordingly rejected. 
16.           Furthermore, no complicated questions of fact and law are involved in this case. It is a simple case, wherein, the complainant has sought delayed compensation for the period of delay caused by the opposite party in delivering possession of the unit purchased by him, in the manner, explained above. In the first instance, possession of unit no.795, Ground Floor was not offered by the committed date i.e. latest by 05.08.2015 and thereafter in 2016, it was found that the said unit (unit no.795) was not being constructed on Ground Floor and under those circumstances, the complainant was ultimately relocated to unit no.OCIF/FIRST/798. However, when possession of relocated unit no.OCIF/FIRST/798  was offered, it was found to be incomplete as in the offer of possession letter itself, it has been mentioned by the opposite party that development work at the project site is on the verge of completion. Thus, the above act and conduct of the opposite party amount to deficiency in providing service and adoption of unfair trade practice, which come under the purview of the CPA Act. As such, objection taken in this regard, stands rejected. 
17.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite party is directed:-
    1. To pay interest @12% p.a. on the entire amount deposited by the complainant, from the date of endorsement of unit no.795, Ground Floor i.e. from 24.12.2013 till 28.11.2016 (one day before execution of allotment letter/agreement in respect of relocated unit), within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall attract 3% penal interest more i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
    2. To deliver possession of unit no.OCIF/FIRST/798, measuring 2200 square feet, Omaxe Cassia, Mullanpur, LPA (GMADA), SAS Nagar, Punjab, complete in all respects, after obtaining completion certificate from the competent authorities, within a period of 30 days from the date of receipt of a certified copy of this order, on receipt of remaining amount from the complainant, if any. However, the opposite party shall not charge any delayed interest on the remaining amount, as fault, if any, is on its part and not the complainant.
    3. To pay compensation @Rs.10/- per square feet per month of the super area of unit no.OCIF/FIRST/798 and also interest @6% p.a. on the entire deposited amount, starting 28.05.2019 (30 months from 29.11.2016) till 30.04.2021, within a period of 30 days from the date of receipt of a certified copy of this order, failing which thereafter the entire accumulated amount shall carry penal interest @12% p.a. from the date of default till this payment is made.
    4. To pay compensation @Rs.10/- per square feet per month of the super area of unit no.OCIF/FIRST/798 and also interest @6% p.a. on the entire deposited amount, starting 01.05.2021   onwards, by the 10^th of the following month to the complainant till actual delivery of physical possession of unit no.OCIF/FIRST/798, complete in all respects, in line with clause (ii) above.
    5. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainant within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

18.           Certified Copies of this order be sent to the parties, free of charge.
19.           The file be consigned to Record Room, after completion.

 

Pronounced

20.04.2021

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 

 

 

Rg.