Chandigarh

StateCommission

CC/187/2018

Lt. Col. Jagmohan Singh - Complainant(s)

Versus

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

Rupali S Verma, Adv.

29 Nov 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	187 of 2018
Date of Institution	:	27.04.2018
Date of Decision	:	29.11.2018

 

1. Lt. Col. Jagmohan Singh S/o Lt. Col. (Retd.) Balbir Singh,

 

2. Anupreet W/o Lt. Col. Jagmohan Singh,

 

Both residents of Head Quarter, 67 Infantry Brigade, PIN 908067, C/O 56 APO.

 

……Complainants

V e r s u s

1.            Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, having regional/corporate/registered office at SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh.

2nd Address : Site Office India Trade Tower, 1st Floor, Madhya Marg Extension Road, New Chandigarh, Distt. SAS Nagar.

2.             Omaxe Limited through its Managing Director having its registered office at Shop No.19-B, Omaxe Celebration Mall, Sohna Road, Gurgaon – 122001, Haryana.

Corporate Office : Omaxe House, 7, L.S.C. KalkaJi, New Delhi – 110019.

                                                             .... Opposite Parties

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Argued by:      

Ms. Rupali Shekhar Verma, Advocate for the complainants alongwith Lt. Col. Jagmohan Singh, complainant No.1 in person.  

Sh.  Munish Gupta, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

 

                The facts, in brief, are that the complainant booked a plot measuring 200 sq. yards in the project of the Opposite Parties, namely, “Omaxe New Chandigarh Phase – 3” by paying booking amount of Rs.10 lakhs vide receipt dated 13.04.2013 against plot No.OCE/P3/425 (Annexure C-1). The complainant opted Construction Linked Payment Plan.  It was stated that at the time of booking, the complainants were informed that Buyer Seller Agreement would be executed at later stage and possession would be handed over within two years. It was further stated that the total sale consideration of the plot is Rs.59,02,778/-, out of which, the complainants paid the total amount of Rs.22 lakhs i.e. 40% of the total consideration of the plot. After receipt of the aforesaid amount, the Opposite Parties neither issued any allotment letter nor executed any Buyer Agreement. It was further stated that the Opposite Parties did not raise  any demand for next 2 ½ years, as there was no development at the site. It was further stated that the Opposite Parties kept misappropriating the complainant’s money to their own use and never intimated about any development at the site. It was further stated that the complainants were shocked to see that the demand, which was raised after 2 ½ years was pertaining to a different plot bearing No. OCE/II/4/181Y1. Thereafter, complainant No.1 made a call to a concerned person to ask about the development and actual plot number, which has been allotted to them. The concerned person assured that the initially allotted plot number is correct and also assured that the correct demand against correct plot number would be sent shortly. It was further stated that the Opposite Parties failed to offer any revised demand and in the absence of actual plot number or allotment letter or Agreement, the complainants were prevented from making any further payments. Thereafter, complainant No.1 visited the site and found that there was no development and no road connectivity. It was further stated that the complainants were shocked to receive demand letter dated 31.05.2017, in which, the Opposite Parties threatened regarding cancellation of the property because of alleged non-payment of dues. However, in the said letter, the Opposite Parties further mentioned fictitious plot number. It was further stated that the project was promised to be developed within two years and possession would be given on or before 12.04.2016, as the booking was on 13.04.2013. However, there is gross delay of three years in handing over the possession of the developed plot.  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 complainants, 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 taken a specific objection for referring the matter to the Arbitrator under Section 8 of Arbitration and Conciliation Act, 1996 in terms of Clause 30 of the application form dated 10.04.2013. It was further stated that this Commission has no territorial jurisdiction to entertain the complaint, as the impugned property is situated within the territorial jurisdiction of District Mohali. It was further stated that this Commission has no pecuniary jurisdiction to entertain the complaint as the relief sought by the complainants in the instant complaint exceeds Rs.1 crore and, therefore, not within the pecuniary jurisdiction of this Commission. It was further stated that the complainants did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986, as the complainants purchased the unit for the purpose of investment. It was further stated that the complainants have concealed the relevant fact that the unit, in question, stands cancelled vide letter dated 29.07.2017, which was sent after numerous reminders sent to them for making the balance consideration, which admittedly was never paid. It was admitted regarding booking of the unit and receipt of an amount of Rs.22 lacs from the complainants.  It was further stated that after payment of the initial payment of Rs.22 lacs, the complainants kept mum and did not bother to pay even a single penny thereafter. The complainants concealed the fact from this Commission regarding sending of reminders/letters (Annexure R-3 colly.). It was further stated that the Development Linked Plan was chosen by the complainants, therefore, demands were to be made as per the pace of development. The complainants cannot raise any allegation qua non-development, as payment was to be         made in terms of the development.  It was further stated that the complainants themselves referred to allotment of plot in para No.6 but have taken a contradictory stand that no allotment was made for 2 ½ years. It was further stated that the demand letters were sent to the complainants from time to time but they never came forward to make the payment, therefore, the Opposite Parties, left with no option, issued last and final chance letter dated 24.03.2017 and 27.06.2017 and when no payment was made, the unit, in question, was cancelled vide letter dated 29.07.2017. As far as change of plot number is concerned, it is submitted that allotment is always provisional and subject to change.  It was further stated that all the communications were made at the official address of the complainants, which was provided by them in application form also. It was denied that any fictitious plot number was given to the complainants or that no allotment letter was issued.  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 complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

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

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

6.             First, we will deal with an objection, raised by the Opposite Parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint.

                It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha  (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants 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.

                In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.

7.             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 complainants, 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 (Annexures C-1 & C-2), annexed by the complainants and demand letters, which were sent by the Opposite Parties (at page Nos.33 to 38 alongwith written statement) 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 complainants, 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.

8.             The next question, that falls for consideration, is, as to whether, the complainants fall 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 complainants have mentioned in their complaint that they booked the unit having planned their settlement after retirement because their elder son was planning admission in professional colleges near 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 complainants. There is nothing, on the record, that the complainants are property dealers. 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 complainants purchased the property for investment purposes and, as such, they did not fall within the definition of a consumer, cannot be taken into consideration. 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  complainants, 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.

9.             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 sale consideration of the unit, in question i.e. Rs.59,02,778/- plus compensation claimed by way of interest @24% on the amount deposited to the tune of Rs.22,00,000/-; 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.

10.          The next question that falls for consideration before us is as to whether the Opposite Parties rightly cancelled the unit of the complainants. The answer, to this, question is in the negative. Admittedly, complainant No.1 is a serving Lt. Colonel in Indian Army and is presently posted at Fazilka and complainant No.2 is a homemaker. It is the admitted fact that the complainants booked a plot measuring 200 sq. yds. in the project of the Opposite Parties, namely, “Omaxe New Chandigarh Phase-3” on 13.04.2013. It is also the admitted fact that out of the total sale consideration of the plot i.e. Rs.59,02,778/-, the complainants paid the total amount of Rs.22 lakhs in respect of the plot, in question by 21.01.2014 i.e. almost 40% of the sale consideration. It is pertinent to mention here that property details in the receipts (at page Nos.30& 31 of the file dated 13.04.2013 & 18.07.2013) clearly shows “OCE/P3/425”, whereas, in the demand letter dated 28.07.2016 (Annexure C-3), annexed by the complainants, unit No.”OCE/II/4/181Y1” was mentioned. The complainants stated in their complaint that they were shocked to see the aforesaid demand letter, which was pertaining to a different plot number, therefore, complainant No.1 called to the concerned person and asked about the actual plot number, who assured that correct demand against correct plot number would be sent shortly. It is also relevant to note that neither any allotment letter was issued in favour of the complainants nor executed any Buyer’s Agreement. Even the complainants requested several times for sending allotment letter/execution of the Agreement but all in vain. Complainant No.1 visited the project site in the end of the year 2016 and found that there was no development, no road connectivity and he had to reach the site through the old kaccha road passing by various villages, which is not well lit and is unsafe and he could notice only coloured flags in agricultural fields. Moreover, during the years 2015 to 2017, complainant No.1 was posted at Jaisalmer Military Station and he remained engaged and occupied in various field exercises. Complainant No.1 made every effort to stay in touch with the officials of the Opposite Parties for issuance of allotment letter with correct description of the property. The officials of the Opposite Parties kept giving assurances that the needful shall be done but the complainants did not receive any allotment letter or executed any Buyer’s Agreement. The complainants in their rejoinder clearly stated that complainant No.1 being in Indian Army required loan facility from its employer but on account of discrepancies as regards the unit number initially agreed to and the subsequent one mentioned in the demand letters after three years, the Opposite Parties were called upon the to clarify the issue but no satisfactory response was received. Even the complainants updated their email id in the records maintained by the Opposite Parties, which is evident from communication dated 31.05.2017. The complainants further submitted that the alleged letter dated 27.06.2017 and cancellation letter dated 29.07.2017 never received on updated email id of complainant No.1, whereas, the previous communication dated 31.05.2017 was received on the said updated email id. In this regard, snapshots of the inbox of email id of complainant No.1 for the period from 31.05.2017 to 31.08.2017 also annexed as Annexure C-6. It was further submitted that complainant No.1 is presently posted at Fazilka, a forward and remote area but the cancellation letter bears the address of Pathankot cantonment, where complainant No.1 was posted during the period 2012 to 2014. The complainants never served any cancellation letter as alleged.  Not only this, the Opposite Parties have placed on record the demand letters alongwith postal receipts. It is relevant to note that all the demand letters bear clear postal receipts but the cancellation letter (at page No.43 of the file) has incomplete postal receipt. Even the written request vide email (Annexure C-7) was made to the Opposite Parties for providing better copy of alleged cancellation letter dated 29.07.2017 with complete postal receipt. In response to the said email, a better copy of cancellation letter has been provided alongwith email dated 20.08.2018 (Annexure C-8) and perusal thereof reveals that the receipt does not bear any date and time, whereas, all the other receipts placed on record by the Opposite Parties have specific date and time. As far as change of plot number is concerned, the Opposite Parties in their written statement stated allotment is always provisional and subject to change. We are not impressed with the said contention of the Opposite Parties because firstly the Opposite Parties neither issued any specific allotment letter nor executed any Buyer’s Agreement. Not only this, initially the receipts issued, the Opposite Parties mentioned Plot No.OCE/P3/425 and thereafter, on their own, they mentioned plot No.OCE/II/4/181Y1 in the demand letters, without giving any option to the complainants, whether they agree for the said plot or not. Even the Opposite Parties never intimated about the change of plot number to the complainants. Due to the change of plot number, the complainants requested the Opposite Parties to issue allotment letter with respect of the correct plot number but to no avail. Therefore, the complainants never paid further amount to the Opposite Parties. After receipt of the huge amount of Rs.22 lakhs from the complainants i.e. 40% of the total sale consideration of the plot, in question, the Opposite Parties cancelled the unit of the complainants, which is not genuine at all and, therefore, amounted to deficiency in service and indulgence into unfair trade practice. So, we are of the view that the Opposite Parties hurriedly cancelled the unit of the complainants and, therefore, the said cancellation notice is null and void. 

11.           The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the deposited amount. It is the admitted fact that the complainants paid the total amount of Rs.22 lakhs in respect of the plot, in question. After receipt of the huge amount from the complainants, the Opposite Parties neither issued any allotment letter nor executed any Buyer’s Agreement. If we counted three years from the date of booking i.e. 13.04.2013, the possession was to be delivered to the complainants on or before 12.04.2016 but the Opposite Parties neither issued any allotment letter nor executed any Buyer’s Agreement and rather cancelled the unit of the complainants. Even complainant No.1 is a serving Lt. Colonel in Indian Army, who is posted at Fazilka and he served for our nation but after paid his lifelong earnings, the Opposite Parties failed to give possession of unit.   Even regarding the possession, the Opposite Parties had never written a single word within which period, the possession is to be delivered. So, the complainants are thus, entitled to get refund of amount of Rs.22 lakhs. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

12.           It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the  complainants. It is clearly proved that an amount of Rs.22 lakhs was paid by the complainants, 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  complainants are held entitled to get refund of the amount deposited by them, to the tune of Rs.22 lakhs alongwith simple interest @12% p.a., from the respective dates of deposits till realization. 

13.           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 complainants, complete in all respects, by the stipulated date but it was they (complainants) 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 complainants themselves are rescinding the contract, as such, they are 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 issued 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.

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

15.           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.22 lakhs, to  the  complainants, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.50,000/- 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.

16.           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).

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

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

Pronounced.

November 29^th, 2018.                                    

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

 (PADMA PANDEY)

        MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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