Chandigarh

StateCommission

CC/225/2018

Jugal Kishore Seth - Complainant(s)

Versus

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

Tejeshwar Singh, Adv.

17 Dec 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	225 of 2018
Date of Institution	:	17.05.2018
Date of Decision	:	17.12.2018

 

Jugal Kishore Seth s/o Sh. Ram Gopal Seth, r/o NF 44 Quilla Mohalla, Jalandhar.

……Complainant

V e r s u s

1.            Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Director/Chairman/Managing Director, having its Regional Office at SCO No.139-140, 1^st Floor, Sector 8-C, Madhya Marg, Chandigarh - 160008.

2.             Omaxe Ltd. through its Director/Chairman/Managing Director, having its Registered Office at Omaxe House, 10, L.S.C. Kalkaji, New Delhi – 110019.

Site Address :- The Lake, Madhya Marg Extension, Omaxe New Chandigarh, Near India Trade Tower, Mullanpur, Distt. SAS Nagar, Punjab – 140901.

                                                             .... Opposite Parties

BEFORE:         MRS. PADMA PANDEY, PRESIDING MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Argued by:      

Sh. Tejeshwar Singh, Advocate for the complainant.  

Sh.  Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                The facts, in brief, are that the unit, in dispute, erstwhile jointly booked by Sh.Sandeep Bhalla and Smt.Monika Bhalla on 28.07.2014 in “The Lake” at Omaxe New Chandigarh. Thereafter, the complainant stepped into the shoes of the previous allottees, as is evident from request form dated 20.08.2015 (Annexure C-1). It was stated that at the time of transfer, the complainant was informed by the officials of the Opposite Parties that possession of the unit, in question, would be handed over within a period of 3 years. Therefore, the Opposite Parties were required to complete construction and deliver the possession within three years from 28.07.2014 i.e. by 27.07.2017. It was further stated that the complainant made 95% of the demanded amount to the Opposite Parties i.e. Rs.50,73,563.93, out of the demanded amount of Rs.53,67,360/-. Despite receipt of the huge amount from the complainant, the Opposite Parties failed to deliver possession within the stipulated time. It was further stated that the complainant made the regular payments, as demanded by the Opposite Parties. It was further stated that the Opposite Parties failed to get the Buyer’s Agreement executed in the present case despite repeated requests. It was further stated that after booking of the present unit on 28.07.2014 and after numerous requests, the Opposite Parties finally sent allotment/agreement signing letter dated 12.04.2018 i.e. after a delay of four years (Annexure C-5). It was further stated that the complainant was shocked to learn that the Opposite Parties enhanced the time for construction/development of the unit, in question, to 42 months and that too from the date of execution of the allotment letter/Agreement (Clause 40). It was further stated that the various clauses of the Allotment letter are one-sided, illegal and unreasonable. It was further stated that the Opposite Parties issued a letter dated 01.03.2018 (Annexure C-6) by virtue of which they sought to cancel the present allotment in favour of the complainant without any rhyme or reason. It was further stated that in the said letter, the due principal amount is reflected as Rs.6,13,629.23 and if the latest account statement issued by the Opposite Parties is perused then the total demanded amount is Rs.53,67,360/-, whereas, the complainant paid an amount of Rs.50,73,563.93, therefore, the said letter is illegal and nonest in the eyes of law. It was further stated that since the construction of the unit, in question, is still incomplete and the Opposite Parties have not handed over the possession of the unit to the complainant. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.             The Opposite Parties, in their written version, have stated that the complainant does not fall within the definition of “Consumer”, as he purchased the unit, in question, for commercial purposes/speculation because as per records, the complainant is resident of UK and having house at Jalandhar. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. Thus, the complainant is not entitled to claim possession within any time bound manner, as the same would amount to specific performance of the contract. It was further stated that the present complaint is pre-mature, as time period for delivery even if calculated from date of assignment i.e. 20.08.2015 has not yet expired and if the complainant want refund, it would amount to rescission and forfeiture charges would be applicable. It was further stated that the complaint is time barred, as the complainant is raising grievances pertaining to year 2015, as such, the present complaint filed in June, 2018. It was further stated that this Commission has no pecuniary jurisdiction to try and entertain the complaint, as the value of claim exceeds Rs.1 crore. It was further stated that this Commission has no territorial jurisdiction to try this complaint, as the property is located in Punjab and registered office of the Opposite Parties is at New Delhi. It was further stated that the complainant has concealed the material fact that prior to assignment, he had executed Affidavit cum Indemnity dated 13.07.2015, wherein, it was interalia agreed by the complainant that construction period of the unit should be reckoned from date of endorsement of allotment right in his favour and he should not claim compensation for delay in offer of possession. Copy of the affidavit cum undertaking submitted by the complainant on 13.07.2015 is Exhibit OP/2. It was further stated that as per Clause 40(a) of the Agreement/Allotment letter, the development would be completed within 42+6 months of execution of the Agreement and the same had to be read with the indemnity affidavit, in which, it has been stated that period of completion would be reckoned from the date of assignment in the name of the complainant.  It was further stated that the complainant has failed to sign and return the agreement till date.  It was admitted that the Opposite Parties received an amount of Rs.50,73,563.93 from the complainant. It was further stated that the complainant failed to make the timely payments, as is evident from reminders/letters (Exhibit OP/3 colly.). It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

3.             The Parties led evidence, in support of their case.

4.             We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.             The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not.

                According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, it is evident from the record, that the receipts (Annexure C-3 Colly.), annexed by the complainant, which were sent by the Opposite Parties (at page Nos.38 to 42) from their Chandigarh Office, as the aforesaid documents bore the address as “SCO 139-140 Sector 8-C, Madhya Marg, Chandigarh”. Since, as per the documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  The objection taken by the Opposite Parties, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

6.             The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. After going through the record, we are of the view that the objection taken by the Opposite Parties does not carry any weight and is liable to be rejected. The complainant in para No.2 of his complaint has clearly mentioned that he has booked and sought to purchase the unit in question for residential purposes i.e. for the purpose of residing therein and settling in Chandigarh. Even otherwise, the mere fact that it was a residential unit, which was booked was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by the  Opposite Parties, mere bald assertion i.e. simply saying that the  complainant being investor because he is resident of UK and having house at Jalandhar, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. At the same time, no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon`ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

       

                Further, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by  the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

7.             Another objection taken by the Opposite Parties, with regard to pecuniary jurisdiction, also deserves rejection. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant part of the said order reads thus:-

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

In the present case, if total amount of the unit (at page no.70 of the complainant’s documents), in question i.e. Rs.70,90,556/- plus compensation claimed by way of interest @15% on the amount deposited to the tune of Rs.50,73,563.93; compensation to the tune of Rs.5 lacs claimed for mental agony and harassment, till the date of filing this complaint, is taken into consideration, it exceeds Rs.20 lacs  and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. The objection taken by the Opposite Parties that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

8.             The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It is, no doubt, true that possession of the unit, in question, in question, has not been handed over to the complainant till the date of filing of the complaint. Even no allotment letter was signed or any Buyer’s Agreement was executed between the parties and on the other hand, amount deposited was also not refunded to the complainant alongwith interest, as such, there is continuing cause of action, in her favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for  the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

9.             The next question that falls for consideration, is, as to whether, this complaint is premature, as alleged by the Opposite Parties or not. To say so, Counsel for the Opposite Parties have placed reliance on Clause 40 (a) of the allotment letter, which says that possession of the unit, in question, will be delivered within a period of 42 months from the date of signing of the same + 6 months. At this stage, it is very significant to add here that the aforesaid letter containing the said clause, is under dispute and was not signed by the complainant on the ground that, in the first instance, it was sent after a huge delay of about four years and also at the same terms and conditions contained therein, were found one sided, heavily loaded in favour of the Opposite Parties. As such, once the allotment letter was neither signed by the complainant nor any Agreement was executed between the parties, and the same has been put under challenge by way of filing this complaint, therefore terms and conditions contained therein, cannot be made applicable against him (complainant). As such, the complaint, in no manner, be termed as premature.

                Furthermore, it is settled law that allotment letter has to be sent for signatures of the party concerned within a reasonable period say two to three months, on receipt of about 25% of the sale consideration, whereas, in the present case, the same was sent after a huge delay and that too on receipt of huge amount for the unit, in question. By not offering allotment letter or signing the Agreement within reasonable timeframe, the Opposite Parties committed unfair trade practice and were also deficient in providing service to the complainant. It was also earlier so said by this Commission, in a case titled as  Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

Now coming to the undertaking upon which reliance has been placed by the Opposite Parties, to say that the complainant has estopped himself to seek compensation for the period of delay in offering possession of the unit. It may be stated here that the said undertaking was given by the complainant in the year 2015 with the hope that allotment letter would be got signed from him within a short span of time. However, had the complainant been made aware of the fact that allotment letter/agreement would not be sent to him for signatures for another three years, he would not have signed the said undertaking. At the same time, there is nothing in the said undertaking that allotment letter/agreement would be provided to the complainant after a long delay of three years. Even the undertaking obtained by the Opposite Parties from the complainant, being in dominating position and he in disadvantageous position, is an act, which can be termed as unfair trade practice. As such, no help can be drawn by the Opposite Parties from the said undertaking.

10.           The next question, that falls for consideration, is, as to whether, the complainant is entitled for refund of the deposited amount. It is the admitted fact that the complainant paid the total amount of Rs.50,73,563.93 in respect of the unit, in question. After receipt of the huge amount from the complainant, the Opposite Parties failed to execute any Buyer’s Agreement. Initially the said unit was booked by Sh.Sandeep Bhalla and Smt.Monika Bhalla on 28.07.2014. Thereafter, in the year 2015, the complainant stepped into the shoes of the earlier allottees. Even allotment letter (Annexure C-5) sent by the Opposite Parties at a very belated stage i.e. after about four years and the same was not signed by the complainant because at time of purchase, the Opposite Parties assured that possession would be handed over within a period of three years i.e. by 27.07.2017 but despite receipt of the huge amount of Rs.50,73,563.93, the Opposite Parties sent Allotment letter dated 12.04.2018 i.e. after a delay of four years. In the said letter, the Opposite Parties enhanced the time for construction/development of the unit, in question to 42 months and that too from the date of execution of the Allotment letter/Agreement. However, the Opposite Parties failed to deliver possession of the unit, in question, till the date of filing of this complaint. So, the complainant is thus, entitled to get refund of amount of Rs.50,73,563.93. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

11.           It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainant. It is clearly proved that an amount of Rs.50,73,563.93 was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. In the facts and circumstances of the case, the  complainant is held entitled to get refund of the amount deposited by him, to the tune of Rs.50,73,563.93 alongwith simple interest @12% p.a., from the respective date of purchase of the unit till realization. 

12.           As far as the plea taken by the Opposite Parties at the time of arguments, regarding forfeiture is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that they were ready with possession of the unit, to be delivered to the complainant, complete in all respects, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Parties, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of some amount, as per the terms and conditions of the Opposite Parties. It is pertinent to note that neither allotment letter was signed nor any Agreement was executed between the parties. In this view of the matter, the plea taken by the Opposite Parties, in this regard, have no legs to stand and are accordingly rejected.

13.           No other point, was urged, by the Counsel for the parties.

14.           For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally directed, as under:-

1. To refund the amount Rs.50,73,563.93, to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  purchase/transfer of the unit onwards.
2. To pay compensation, in the sum of Rs.1 lakh, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

15.           However, it is made clear that, if the complainant in the aforesaid cases have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).

16.           Certified Copies of this order be sent to the parties, free of charge.

17.           The file be consigned to Record Room, after completion.

Pronounced.

 

17.12.2018.                                                   Sd/-

 (PADMA PANDEY)

PRESIDING MEMBER

 

Sd/-

(RAJESH K. ARYA)

MEMBER

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