Chandigarh

StateCommission

CC/248/2019

Mrs. Anuradha Aima - Complainant(s)

Versus

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

Arjun Grover Adv.

27 Jan 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        U.T., CHANDIGARH

 

Complaint case No.	:	248 of 2019
Date of Institution	:	07.11.2019
Date of Decision	:	27.01.2021

 

1. Mrs. Anuradha Aima w/o Sh.Sandeep Aima, r/o P.O. Box : 34637, Abu Dhabi, United Arab Emirates - 0.

 

2. Mr. Sandeep Aima s/o Sh.Udhey Kumar Aima, r/o  P.O. Box : 34637, Abu Dhabi, United Arab Emirates – 0.

 

      Through authorized representative Mr.Tito Ganju, s/o Sh.A.K.Ganju, r/o H.No.180, Sector 5, Channi       Himmat, Jammu, J & K.

                                                …… Complainants

                        V e r s u s

 

Omaxe Chandigarh Extension Developers Private  Limited, through its Managing Director/Authorised Signatory having place of businesses at :-

 

1. SCO 139-140, First Floor, Sector 8-C, Madhya Marg, Chandigarh – 160008.
2. Omaxe House, 7, LSC, Kalkaji, New Delhi – 110019.

 

                                                ....Opposite Party

 

BEFORE:      JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

            MRS. PADMA PANDEY, MEMBER

            MR. RAJESH K. ARYA, MEMBER

 

Argued by:-    

Sh.Arjun Grover, Advocate for the  complainants.

None for the Opposite Parties.  

 

PER PADMA PANDEY, MEMBER.

              The facts, in brief, are that one Mrs.Pramila Kapoor & her daughter Ms.Pooja Coelho jointed booked a residential independent floor measuring 400 sq. yds. in the project of the Opposite Party, namely, “Omaxe Cassia” New Chandigarh Mullanpur LPA GMADA, District SAS Nagar, Mohali, Punjab by paying an amount of Rs.20,42,170/- vide receipts Annexure C-1 (Colly.). They opted Construction Linked Payment Plan and allotted an independent floor on plot bearing No.692/Ground Floor for a total consideration of Rs.72,58,000/-. Thereafter on 01.09.2012, the complainants entered into an Agreement with Mrs.Pramila Kapoor & Ms.Pooja Coelho (Annexure C-2), which was duly endorsed in favour of the complainants on 07.09.2012 (Annexure C-3 colly.). It was further stated that the Opposite Party as and when demanded the amount as per demand letters, the same was paid by the complainants vide receipts Annexure A-5 to A-7 (colly). The complainants were surprised by looking at balance amount of Rs.13,30,539.85 to be paid by them to the Opposite Party on account of increased area from 2200 to 2400 sq. ft. (Annexure C-8). Thereafter, the complainants paid the amount of Rs.6,76,688/- on 04.09.2018 after adjusting the amount on account of delay in handing over of possession of the flat, in question.  The complainants had deposited an amount of Rs.79,29,709.68 in respect of the unit, in question but despite receipt of whole consideration of the flat, the Opposite Party failed to hand over possession of the flat, in question. The complainants sent email dated 22.11.2018 to the Opposite Party to hand over physical possession of the unit, in question (Annexure C-12) but to no avail. It was further stated that the Opposite Party despite receipt of whole of the amount, raised a demand of Rs.6,53,851.84 alongwith interest on account of delay amounting to Rs.1,25,916.62 from the complainants. The complainants sent email dated 07.01.2019 to the Opposite Party with a request to give physical possession but the Opposite Party did not pay any heed and demanded an amount of Rs.8,28,471.8 vide demand letter dated 09.04.2019 from the complainants (Annexure C-16). The Opposite Party pressurized the complainants to deposit the amount, failing which, allotment of the unit would be cancelled.  Thereafter, on 02.09.2019, the Opposite Party without paying any heed to the genuine request of the complainants, issued final reminder and presurrised them to pay unjustified demands i.e. Rs.6,53,851.86 alongwith interest of Rs.1,07,764.68, failing which, threatened the complainant to cancel the allotment (Annexure C-17). It was further stated that the Opposite Party was obliged to hand over possession by 14.12.2014 but it failed to hand over the same. Ultimately, the complainant sent a legal notice dated 07.09.2019 (Annexure C-18 colly.) but all in vain.  It was further stated that the aforesaid acts, on the part of the Opposite Party, 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 the Consumer Protection Act (in short the ‘Act’ only), was filed.

2.         The Opposite Party, in its written version, has admitted regarding booking of the unit, in question and execution of the Agreement. It was denied that area of the unit has been increased without consent of the complainants. It was stated that at the time of execution of the Agreement, it was agreed between the parties that the area of the unit is tentative in nature and subject to change and final size, location, number etc. shall be confirmed on completion of the development of the project. It was further stated that the earlier allottees inspected the project site and had gone through all the relevant documents and after satisfying themselves, booked the unit, in question. Thereafter, the unit was transferred on the request of the complainants. The said allotment letter/Agreement was duly signed by the complainants after properly understanding each and every clause and the Opposite Party neither forced or influenced to sign the same. It was further stated that the Opposite Party offered possession of the unit, in question, to the complainants vide leter dated 20.06.2018 (Annexure R-3 colly.).  However, the complainants themselves did not take possession with the reasons best known to them. It was further stated that the complaint is liable to be dismissed on the ground of non-joinder of necessary parties, as the complainants failed to make original allottees as a party. It was further stated that this Commission does not have pecuniary jurisdiction to entertain the complaint. It was further stated that the total amount of Rs.13,30,539.85 was demanded from the complainants at the time of offer of possession. It was further stated that the Opposite Party raised the demand as per terms and conditions of the allotment letter. It was further stated that the Opposite Party sent the delay possession penalty affidavit sum undertaking to the complainants vide email dated 05.12.2018 so that delay possession penalty be paid/adjusted to the complainants but they flatly refused to sign the same vide email dated 09.12.2018. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Party, nor it 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 first question, that falls for consideration, is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the plot in dispute i.e. Rs.72,58,000/- as is evident from Details of Unit Annexure-A (at page No.56 of the file); plus other reliefs claimed i.e. interest on the deposited amount and compensation for mental agony and harassment, are clubbed together, the same exceeds Rs.20 lacs and falls below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Thus, the objection taken in this regard, stands rejected.

6.         The next question, that falls for consideration, is with regard to non joinder of necessary parties i.e. the original allottees are concerned, it is, no doubt, true that initially independent floor was booked by Mrs.Pramila Kapoor and her daughter Ms.Pooja Coelho jointly in the project of the Opposite Party in the year 2011. Thereafter, the said plot was purchased by the complainants i.e. Mrs.Anuradha Aima & Mr.Sandeep Aima from the original allottees, for which, Agreement to Sell was executed between the parties on 01.09.2012. After going through the record, we do not find any merit on the objection raised by the Opposite Party because after making full and final payment, the complainants stepped into the shoes of original allottees and are now owners of the said unit in dispute, as such, the said objection raised by the Opposite Party stands rejected.

7.         The next question, which falls for consideration, is as to whether within which period, the possession of the unit, in question, is to be delivered to the complainants. It is the admitted fact that the said unit was purchased by Mrs.Pramila Kapoor and her daughter Ms.Pooja Coelho. Thereafter, the said unit was purchased by the complainants from the original allottees and the same was endorsed in their favour on 07.09.2012 (Annexure C-3 colly.) and the said plot was allotted in favour of the complainants vide allotment letter dated 29.12.2012. Clause 23(b) relating to possession reads as under:-

“23(b) The Company shall put its best efforts to complete the development/ construction of the Unit within 24 (Twenty Four) months from the date of signing of this Allotment Letter by the Allottee(s), or within an extended period of 6 (six) months, however construction within aforesaid 30 months is subject to force majeure conditions [as mentioned in sub-clause (c) & (d) hereunder] and subject to all Unit Allottees making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company  in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Unit to the Allottee(s). The aforesaid period of development shall 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.”

 

            Thus, computing 24 months period from the date of signing of the allotment letter, the possession was to be delivered by 29.12.2014. As per aforesaid clause, another extended period of six months subject to force majeure, was available to the Opposite Party to hand over possession. The Opposite Party has 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 and a period of around five months was on this account. Apparently, for seeking six months extension beyond 24 months, the Opposite Party owes 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. It is pertinent to note that the Opposite Party was to deliver possession within 24   months from the date of signing of the allotment letter or within an extended period of 6 months, subject to exclusion of Sundays, government holidays etc., and the said issue was already decided vide order dated 10.06.2016 passed by this Commission in Complaint Case No.311 of 2015 titled as Shellender Singh Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., wherein, it was decided that when no explanation for extension of six months period has been furnished, the Opposite Party at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or five months period on account of Sundays/Holidays etc. In view of the aforesaid order passed by this Commission, we are of the view that possession is to be delivered within 24 months + 6 months i.e. maximum period of 30 months from the date of signing the allotment letter and the said period of 30 months has been calculated from the date of allotment letter dated 29.12.2012, as such, the said period expired on 29.06.2015. So, it is clearly proved that possession of the said unit was to be delivered by the Opposite Party latest by 29.06.2015.

8.         The next question, that falls for consideration before us is, as to whether, the Opposite Party offered possession of the unit complete in all respects to the complainant within the stipulated time frame as mentioned in the allotment letter. It is true that the possession of the unit was to be delivered to the complainants within 30 months from the date of signing of allotment letter i.e. by 29.06.2015 and not more than that. According to the Opposite Party, it offered possession of the unit vide letter dated 20.06.2018 (at page No.37 of the file) to the complainants but they did not come forward to take possession. On the other hand, the complainants in the written arguments have submitted that the Opposite Party failed to hand over possession to them. If for the sake of argument, we believe that possession was offered by the Opposite Party vide letter dated 20.06.2018 then there was clear cut delay of about three years in offering possession of the unit, in question. As such, the Opposite Party failed to hand over possession within the stipulated time frame as mentioned in the allotment letter. Even in first paragraph of the letter dated 20.06.2018, it was informed to the complainants that development of the project, in question, is on the verge of completion. The Opposite Party placed on record photographs of the unit, in question to prove this fact that the unit is complete. From the said photographs, it shows that the internal work of the unit was almost complete but the Opposite Party failed to place on record any document which could show that the development of the project is complete in all respects and all the basic amenities like roads, sewerage etc. are in existence at the site. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite party but it failed to prove the same, as such, only a paper possession was given to the complainants and not more than that.

9.         The next question that falls for consideration before us is as to whether the Opposite Party rightly demanded an amount of Rs.6,53,851.84 alongwith interest of Rs.125916.62 vide letter dated 03.01.2019 (Annexure C-14) from the complainants. As per Details of Unit Annexure-A (at page No.56 of the file), the grand total of the unit, in question, is Rs.72,58,000/-. The complainants in para No.13 of their complaint clearly stated that they deposited the amount of Rs.79,29,709.68 alongwith GST/Service Tax with the Opposite Party. They also attached copy of statement qua the installments paid by the complainants to the Company from the year 2012 to 2018 at Annexure C-11. On a perusal of abovementioned Annexure C-11, which is Statement of Account for the period February, 2011 to September, 2018, we find that the complainants have made the payment of Rs.79,29,709.68 against the payment demanded Rs.78,77,806.84. The above statement includes an entry dated 04.09.2018 for an amount of Rs.6,76,688/-, which is against the final payment raised by the Opposite Party. The complainants in their written arguments have submitted that on 20.06.2018, the complainants received communication from the Opposite Party demanding an amount of Rs.13,30,539.85 on account of the increased area of the apartment from 2200 to 2400 sq. ft., against which, an amount of Rs.6,53,852/- has been adjusted by the Opposite Party towards penalty on account of delay in handing over possession of the unit, in question, and accordingly asked the complainants to deposit the balance amount of Rs.6,76,688/- as full and final payment, which has been complied with by the complainants on 04.09.2018, as mentioned above. Accordingly, we find that there is no sum and substance in the demand raised by the Opposite Party for payment of additional amount and the same stands rejected.

 

10.        The next question, that falls for consideration, is, as to whether, the complainants are entitled to fine/compensation, if so, at what rate, for non-delivery of physical possession of the unit. Earlier, in a case titled as Narender Kumar Yadav Vs. DLF Homes Panchkula Pvt. Ltd. and another, consumer complaint no.224/2015 decided on 13.01.2016, this Commission, had granted compensation @ Rs.10/- per square feet of the saleable area (as provided in the Agreement), alongwith interest, to the complainants, for the period of delay. However, in 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, under similar circumstances, 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.”

11.        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.”

12.        No doubt in the allotment letter, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants for delay, was incorporated but it does not mean that the intention was that even in the event of inordinate delay, in completing the construction and delivering the possession, the complainant would be entitled to meagre compensation of Rs.10/- per sq. ft. per month, which is much less than the bank rate for loan or fixed deposit. If the argument of the Opposite Party is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer for its other business venture, at nominal interest of 3 to 4 percent, as against much higher bank lending rates.  This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act. 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% in lieu of fine, 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.

13.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for a long number of years, by not delivering physical possession of the unit to them, by the Opposite Party, by the stipulated period of 24 months mentioned in the allotment letter or extended period of 6 months i.e. latest by 29.06.2015. The complainants purchased the unit, with the hope to have a roof over their head alongwith with his family members but their hopes were dashed to the ground. It is pertinent to note that according to the Opposite Party, it offered possession of the unit, in question, to the complainants vide letter dated 20.06.2018 but the complainants in their written arguments submitted that despite receipt of whole of the amount, the Opposite Party failed to hand over possession of the unit, in question. If we presume that the Opposite Party offered possession to the complainants vide letter dated 20.06.2018 then there was definitely a delay of about three years because as per allotment letter, possession was to be handed over maximum within a period of 30 months from the date of signing of allotment letter, as such, possession was to be handed over by 29.06.2015 and not more than that but the Opposite Party offered possession vide letter dated 20.06.2018 with a delay of about three years. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. Compensation, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Party, if granted, to the tune of Rs.2 lacs, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.2 lacs.

14.        For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner. The Opposite Party is directed as under :-

(i)    To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, as per the terms and conditions of the Agreement, to the complainants, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against them.

(ii)    To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainants.

(iii)   To pay fine/compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 29.06.2015 (the deemed date of possession) to 31.01.2021, 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., till realization.

4. To pay fine/compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.02.2021, onwards (per month), by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made. This amount of penalty shall be paid in this manner till actual delivery of possession. 
5. To pay compensation, in the sum of Rs.2 lacs, on account of mental agony and physical harassment, caused to the complainants, 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 the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants, 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 the complaint till realization.

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

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

Pronounced.

January  27^th, 2021.                                      Sd/-

                                                                [RAJ SHEKHAR ATTRI]

                                                                                [PRESIDENT]

 

                                                                                        Sd/-

                                                                        (PADMA PANDEY)

                                                                                 MEMBER

                                                                                        Sd/-

                                                                       (RAJESH K. ARYA)

                                                                                MEMBER

rb