Chandigarh

StateCommission

CC/10/2020

Sarita Kalia - Complainant(s)

Versus

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

Abhineet Taneja Adv.

16 Aug 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	10 of 2020
Date of Institution	:	07.01.2020
Date of Decision	:	16.08.2021

 

Sarita Kalia w/o Sh.Sandeep Kalia, R/o Flat No.797, Second Floor, Omaxe Cassia, New Chandigarh.

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Versus

 

1. Omaxe Chandigarh Extension Developer Ltd., through its Managing Director, 10, Local Shopping Complex, Kalkaji, New Delhi.
2. The Regional Manager, Omaxe Chandigarh Extension Developer Ltd., India Trade Tower, 1^st Floor, Madhya Marg  Extn. Road, New Chandigarh, (Near Mullanpur), District SAS Nagar, Punjab
3. Rohtash Goel, Managing Director, Omaxe Chandigarh Extension Developer  Ltd., 10, Local Shopping Complex, Kalkaji, New Delhi.

…..Opposite Parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER

 

Present through Video Conferencing:-    

                      Sh.Abhineet Taneja, Advocate for the complainant.

Sh.Gazi Mohd. Umair, Advocate for opposite parties

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    The instant complaint has been filed by the complainant seeking following reliefs from the opposite parties-Omaxe Chandigarh Extension Developers Limited:-

1. ‘to immediately install the lift at the premises.

 

2. To complete all the pending works i.e.

> To remove the cracks in all rooms

>All doors be repaired.

>To remove the leakage in drawing room

 

3. To pay interest compensation @ 12% per annum on the deposited amount from the committed date of possession i.e. January, 2019 till the installation of the lift and till the completion of all pending works as stated in para (b) above.

 

4. To make the club functional at Phase-III, Omaxe, New Chandigarh

 

5. To pay compensation to the tune of Rs. 1,00,000/- for mental agony and harassment suffered by the complainant.

 

6. To pay the litigation expenses to the tune of Rs. 55,000/-’

 

2.           It is the case of the complainant that she had paid an amount of Rs.74,53,960/- plus taxes i.e. totaling to Rs.83,03,501/- to the opposite parties, for the period from 25.07.2018 to 25.11.2019, towards unit bearing no.OCIF/ Second/797, measuring 2360 square feet, located at “Omaxe Cassia”, Phase-3, Mullanpur, Omaxe Chandigarh Extension, District SAS Nagar, Mohali, Punjab (in short the unit). Agreement dated 28.11.2018, Annexure C-4 was executed between the parties and as per clause 7.1 thereof, possession of the unit in question was to be delivered latest by January 2019. It has been stated that when possession of the unit was handed over to her in the month of May 2019, lift was not made available in the building. It has been stated by the complainant that since she was in urgent need of house, as such, she took over possession of incomplete unit, with a request to the opposite parties to complete the work later on but they failed to complete the same, despite sending number of emails. Even club house has not been made available at the project site, by the opposite parties. It has been pleaded that in the absence of lift, it is not possible for the mother-in-law of the complainant who is aged 78 years and heart patient, to step upto the unit which is located at second floor of the building. Hence this complaint.
3.           Her claim has been contested by the opposite parties, on numerous grounds, inter alia, that the complainant did not fall under the definition of consumer, as she has purchased the unit for commercial purposes; that she has purchased number of properties in the project of the opposite parties, details whereof have been given at Annexures R-3 and R-4 colly.; that possession of the unit in question has been taken over by the complainant after inspecting all the facilities; that lift has been installed in the building where the unit of the complainant is located; that there is no seepage in the unit in question, as alleged by the complainant;  that this Commission did not vest with pecuniary jurisdiction to entertain this complaint; that since opposite party no.3 is not the active Director of the company, as such, his name needs to be deleted from the array of parties; that it was on the request of the complainant that possession of the unit in question was handover to her; that since the complainant had been stopped from raising illegal construction on roof of the unit in question, as such, she has filed this frivolous complaint. 
4.           On merits, purchase of the unit in question by the complainant; payments made by her as mentioned in her complaint; execution of agreement dated 28.11.2018, Annexure C-4; possession delivered to her in May 2019 have not been disputed. Remaining averments have been denied being wrong. Prayer has been made to dismiss the complaint with costs.
5.           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.
6.           In the rejoinder-cum written arguments filed, the complainant reiterated the averments contained in the complaint and controverted those contained in the joint written reply filed by the opposite parties. The opposite parties also filed their written arguments.
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 arguments filed by them, very carefully.
8.           First we will deal with the objection taken by the opposite parties regarding pecuniary jurisdiction, it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any. In the present case, if total value of the unit in question to the tune of Rs.83,03,501/- and other reliefs claimed i.e. compensation by way of interest for delayed period; compensation for mental agony and harassment etc.  are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint filed under CPA 1986. Objection taken in this regard stands rejected.
9.           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 mere fact that she has purchased other properties in the project of the opposite parties is not a ground to shove her out of the purview of the consumer. In the rejoinder filed, the complainant has clarified that other units were purchased in the project of the opposite parties, with a view to fulfill the needs of the growing family, as she was living in a joint family. Other units were purchased so that the family members may live in the vicinity of each other, while maintaining individual privacy and also for better future of the children. A similar question, as to whether, purchase of four units by a consumer would be sufficient to say that he/she is not a consumer, fell for determination before the Hon’ble National Commission in Shashi Kala Gupta  Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., First Appeal No. 1281 of 2017, decided on 15 Mar 2019, wherein, it was held that the onus is on the opposite parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and indulging in commercial activity, and mere purchase of more than one unit/plot will  not be sufficient to hold that the buyer is not a consumer. Relevant part of the said order is reproduced hereunder:-

‘….Learned Counsel appearing for the Developer argued that the Complainant initially filed Complaints for refund of the amounts paid and withdrew the said Complaint and that the present case is for possession only.  He further submitted that the four plots were purchased for commercial purpose and hence the Complainant does not fall within the definition of ‘Consumer’ as defined under Section 2(1)(d) of the Act.  First I address to the contention of Learned Counsel for the Developer, that the Complainant does not fall within the definition of ‘Consumer’ as she had purchased 4 plots and the purchase is meant for commercial purpose.  There is a specific pleading in para 2 of the Complainant that the ‘residential plots were purchased for her personal use and the use of her family members’.  There is an averment that she transferred the plot in the name of her son Tanuj Gupta and that her son has no plot/house anywhere in India.  This Commission in Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd.  (I) (2016) CPJ 31 (NC)  held that when there is a specific pleading stating that the additional plots/flats purchased are for the personal use of the family members, the onus is on the Opposite Parties to establish that the purchaser is dealing in real estate i.e. purchase and sale of plots/flats and are indulging in commercial activity.  In the instant case there is no documentary evidence filed by the Developer to establish that the Complainant was indulging in any commercial activity in real estate, involved in the purchase and sale of plots.  At the cost of repetition, there is a specific pleading in the body of the Complaint that the plots were meant for personal use of her family members.  Keeping in view the afore-noted decision which has attained finality, I am of the considered view that the Complainant falls within the definition of ‘Consumer’ as defined under Section 2(1)(d) of the Act..’

 

In the present case also, there is no documentary evidence filed by the opposite parties to establish that the complainant was indulged in any commercial activity in real estate and involved in the purchase and sale of plots. Thus, since the objection raised is not supported by any documentary evidence as such the onus shifts to the opposite parties to establish that the complainant has purchased the unit in question and other properties in their project, 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 they failed to discharge their onus, hence we hold that the complainant is a consumer as defined under the Act, 1986, under which this complaint has been filed. In this view of the matter, objection taken by the opposite parties stands rejected. 

10.           There is no dispute with regard to purchase of the unit in question by the complainant on making payment of Rs.74,53,960/- plus taxes i.e. totaling to Rs.83,03,501/- to the opposite parties, in the project in question, possession whereof was to be delivered on or before January 2019 as per clause 7.1 of the agreement dated 28.11.2018, Annexure C-4. It is also an admitted fact that possession of the unit in question, was delivered after a minor delay of about four months i.e. in the month of May 2019.

                   Counsel for the complainant contended with vehemence that at the time of taking possession of the unit in question, there were number of defects, which were brought to the notice of the opposite parties, but they failed to do so. It has been further contended by him that even lift had not been installed in the said building, yet, the complainant took over possession, on the ground that the opposite parties will install the lift therein later on. It is significant to mention here that the complainant has failed to place on record the certificate, vide which possession of the unit was taken over by her in the month of May 2019. There is also no document on record, wherefrom, it can be ascertained that at the time of taking over possession of the unit in question, any snags/defects list was handed over by the complainant to the opposite parties. To prove her case, that at the time of taking over of possession, the unit was suffering from defects/snags, the complainant was required to place on record cogent and convincing evidence to prove that possession was taken over by her under protest i.e. subject to rectification of alleged defects. However, there is nothing on record in that regard. Mere writing of subsequent emails to the opposite parties, after taking over possession of the unit in question, is of no use.

                   Even otherwise, it is an admitted fact that possession of the unit in question was obtained by the complainant, on request. As stated above, there is nothing on record to prove that she pointed out any defects, at the time of taking possession of the unit in question. Though, the complainant in paragraph no.5 of her complaint has stated that since she was in urgent need of house, as such, she took over possession of incomplete unit, with a request to the opposite parties to complete the work later on. However, in reply to para no.5 of the complaint, the opposite parties have denied the said fact. As far as reliance placed by the complainant on photographs Annexure C-8 are concerned, it may be stated here that the same pertains to the year 2021, whereas, possession of the unit in question has been taken over by her, as far as back in May 2019. As such, no reliance can be placed, on the said photographs, to hold that at the time of taking over possession of the unit in question, there were defects, which have been shown therein (photographs). In this view of the matter, it is held that the complainant failed to make the case of deficiency in providing service, against the opposite parties, as far as alleged defects in the unit in question is concerned.  

11.           As far as grievance of the complainant to the effect that the opposite parties failed to provide lift in the building where her plot is located, it may be stated here that there is an email dated 20.07.2019 (at page 53 of the paper book) wherefrom it is evident that the opposite parties committed the complainant that installation of lift will be completed within 45-60 days. Relevant part of the said email is reproduced hereunder:-

 

‘…With reference to your email, we would like to inform that the Civil work for lift installation has started. The lift installation shall also complete tentatively within 45-60 days…’

 

12.           It has also not been disputed between the parties that lift was ultimately installed in the building in question in September 2019 only i.e. after a minor delay of about 3 months from the date of delivery of possession of unit in question to the complainant.  Thus, from bare perusal of the record of this complaint, it is evident that firstly there has been a delay of about four months, in delivery of possession of the unit in question to the complainant; and secondly the opposite parties delayed in installing the lift in the building where the unit in question is located.
13.           In this view of the matter, we are of the considered view that if lumpsum compensation, to the tune of Rs.15,000/- is granted in favour of the complainant for delay in installation of lift in the said building, that will meet the ends of justice. However, as far as compensation for the period of delay in delivery of possession is concerned, we are of the considered view that if we award interest @9% p.a. on the deposited amount, for the period of delay i.e. from 01.01.2019 to 30.04.2019 (possession taken over in May 2019) that will be fair, adequate and reasonable.  
14.           For the reasons recorded above, this complaint is partly accepted with costs and  the opposite parties, jointly and severally, are directed:-

 

1. To pay compensation by way of interest @9% p.a. to the complainant, on the entire amount deposited by her starting from 01.01.2019 till 30.04.2019, 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, as ordered to be paid, shall entail penal interest @12% p.a. from the date of default till realization.

 

1. To pay lumpsum compensation to the tune of Rs.15,000/- towards deficiency in providing service for delay in providing lift in the building, 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.15,000/- shall carry interest @9% p.a. from the date of passing of this order, till realization.
2. To pay cost of litigation to the tune of Rs.15,000/-, 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.15,000/-, shall carry interest @9% p.a. from the date of passing of this order, 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

16.08.2021

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.