Chandigarh

StateCommission

CC/15/2019

Sateekshan Sood - Complainant(s)

Versus

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

Maninder Singh Saini Adv.

19 Apr 2021

ORDER

  STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	15 of 2019
Date of Institution	:	18.01.2019
Date of Decision	:	19.04.2021

 

1. Sateekshan Sood aged 62 years S/o Late Shri L.C. Sood
2. Poonam Sood, aged 57 years, W/o Sateekshan Sood

Both residents of #1113-A, Sector 20-B, Chandigarh, U.T.

•  

Versus

 

1. Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, SCO 143-44, First Floor, Sector 8-C, Chandigarh.
2. Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Director, India Trade Tower, First Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, Punjab.

…..Opposite Parties

BEFORE:      JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    MRS. PADMA PANDEY, MEMBER

 

Present through Video Conferencing:-    

                  
Sh.Maninder Singh Saini, Advocate for the complainants.

Sh.Gazi Mohd. Umair, Advocate for opposite parties

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                    This complaint has been filed by the complainants seeking following directions to the opposite parties:-

1. “….Direction to the OPs to immediately handover actual physical possession of the unit OCIF/Ground/510- Omaxe Cassia.
2. Compensation by way of grant of interest over the entire amount paid to the O.P.'s i.e. Rs.52,77,872.78/-   (as per Annexure C-7) compounded quarterly (as charged by O.P. as per buyer's agreement) interest @ 12 % p.a. from the date of deposit of the amounts.
3. Compensation for mental agony and harassment amounting to Rs.2,00,000/-
4. Compensation for deficiency in service amounting to Rs.2,00,000/.
5. Compensation for litigation expenses amounting to Rs. 50,000/-.
6. Compensation by way of penalty @ Rs.10/- per sq. ft. per month of amount as specified in agreement and admitted to be paid by the OP's
7. Any other relief which this Hon'ble Commission deems fit and proper may kindly be granted in the favour of the complainants…..”

2.           It is the case of the complainants that despite the fact that they had paid substantial amount of Rs.49,41,044.78ps. to the opposite parties, for the period from 28.02.2011 to 05.07.2017, against total sale consideration of unit bearing no.OCIF/GROUND/510, located at “Omaxe Cassia”, Phase-3, Mullanpur, Omaxe Chandigarh Extension, District SAS Nagar, Mohali, Punjab, yet, they failed to deliver actual physical possession thereof, by  24.10.2014 i.e. within a period of 24 months as envisaged in Clause 23 (b) of the allotment letter/agreement dated 25.10.2012. It has been stated that when possession of the unit in question was offered vide letter dated 27.10.2017, Annexure C-8, it was found that it was mere a paper possession, as the same was offered in the absence of development work & basic amenities at the project site and also the unit in question was pending litigation. It has been averred that number of requests made in the matter to deliver possession of the unit in question complete in all respects did not yield any result. Hence this complaint.
3.           Their claim has been contested by the opposite parties, on numerous grounds, inter-alia, that the complainants did not fall under the definition of consumer, as they are speculators; that they have purchased another unit in the project of the opposite parties which they have concealed from this Commission, as such this complaint is liable to the dismissed on this ground alone; that this Commission did not vest with pecuniary and territorial jurisdiction to entertain this complaint; that since the present case relates to an immovable property, as such, time was not to be considered as essence of the contract; that this complaint filed is barred by time; that in the allotment letter/agreement dated 25.10.2012, Annexure C-4, it was mentioned that the company shall make its best efforts to deliver possession of the unit within a total period of 30 months from the date of execution of allotment letter/agreement i.e. latest by 24.04.2015 as such it was only proposed to give possession in the said period; that possession of the unit in question had been offered to the complainants on 27.10.2017 after obtaining partial completion certificate dated 10.07.2015 and also occupation certificate dated 12.07.2017, yet, the complainants failed to take over the same; that thereafter settlement was agreed to between the parties, whereby an amount of Rs.4,55,792/- towards delayed compensation for the period of delay was paid to the complainants, which fact has been concealed by them; that even refund of amount of Rs.56,728/- was also made to the complainant on 21.02.2018; that the unit in question was not under litigation at any point of time and the email relied upon by the complainants was not related to their unit as the same was sent to some other allottee for some other unit; and that even the said litigation also stood disposed of on 12.10.2018, Annexure OP-5 
4.           On merits, purchase of the unit in question by the complainants; execution of allotment letter/agreement; and payments made by the complainants towards the said unit have not been disputed. Remaining averments have been denied being wrong. Prayer has been made to dismiss the complaint with costs.
5.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in the joint written reply filed by the opposite parties.
6.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including filing of written submissions.
7.           We have heard the contesting parties and have also gone through the entire record of the case, including the rejoinder as well as written submissions, very carefully.
8.           Before going into the merits of this case, it is significant to mention here that, as stated above, though possession of the unit in question was offered to the complainants vide letter dated 27.10.2017, yet, they did not take the same on the ground that the same was mere a paper possession. However, possession of the unit in question was taken over by the complainants on 05.06.2019 on the orders of this Commission and sale deed in respect thereof has also been got executed.
9.           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 purchased by the complainants and compensation claimed 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.
10.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant case, record reveals that letter dated 28.11.2011, Annexure C-2 and provisional allotment letter dated 23.12.2011, Annexure C-3; have been issued by the opposite parties in favour of the complainants, from their office located at SCO No. 143-144, First Floor, Sector 8C, Madhya Marg, Chandigarh, meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Office at Chandigarh and personally works for gain thereat. Thus, it is held that since a part of cause of action arose to the complainants at Chandigarh Office of the opposite parties, as such, this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken in this regard, therefore stands rejected.
11.           As far as objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of plots/units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. The mere fact that the complainants have purchased another unit in the project of the opposite parties is not a ground to say that they are speculators. A consumer may purchase number of properties for settlement of his family members, with a view to live in the vicinity of each other, by maintaining individual privacy and that fact alone cannot constitute a ground to shove him out of the purview of the consumer. The only ground which can attract adverse inference is the proof lead by the party putting allegation that the said transaction has been done as commercial one only with a view to gain huge profits.  In this view of the matter, objection taken in this regard stands rejected. 
12.           There is no dispute with regard to fact that, in the year February 2011, the complainants had booked the unit in question in the aforesaid project of the opposite parties and in all made payment of Rs.49,41,044.78ps. against total sale consideration of Rs.52,62,568.75 ps., for the period from 28.02.2011 to 05.07.2017 which comes to more than 90% of the total sale consideration, yet, possession thereof was not offered by  24.04.2015 i.e. within a period of 30 months (24 months plus 6 months grace period) as envisaged in Clause 23 (b) of the allotment letter/agreement dated 25.10.2012. Possession in this case was, for the first time offered vide letter dated 27.10.2017 and the same was not taken over by the complainants on the ground that there were  no basic amenities like club house etc. at the project site and also the unit suffers various defects/snags, which fact is also not in dispute. Admittedly, possession in this case has been taken over by the complainants only on 05.06.2019 and that too on the orders of this Commission. Thus, the fact that there was delay of more than 4 years in delivering possession of the unit in question cannot be disputed and the dispute if any is only with regard to the fact as to whether possession so offered vide letter dated 27.10.2017 was  genuine or not?

                    Counsel for the complainants contended with vehemence that since basic amenities such as club house etc. which were promised at the time of booking had not been provided at the project site and also the fact that the unit in question was under litigation, as such, possession so offered vide letter dated 27.10.2017 was nothing but a paper possession, as such, the complainants were not obliged to take over the same. Whereas, on the other hand, Counsel for the opposite parties while placing reliance on partial completion certificate dated 10.07.2015 and also occupation certificate dated 12.07.2017, contended with vehemence that all the development activities had been completed at the project site and all basic amenities were provided and that was why, the said certificates were issued by the competent authorities. He denied the fact that the unit in question was under litigation solely on the ground that the email reliance whereupon has been placed by the complainants was sent to some other allottee and not the complainants, as such, they cannot taken any advantage out of it.  

                    Thus, at this stage, as stated above, it is to be find out from the record, as to whether, possession of the unit so offered by the opposite parties vide letter dated 27.10.2017, though at belated stage, was a genuine possession or not. It is significant to mention here that we have gone through the record of the case and found that though possession of the unit in question had been offered to the complainants vide letter dated 27.10.2017, Annexure C-8, yet, the same was not handed over by the opposite parties, as a result whereof, the complainants wrote detailed letter dated 19.05.2018, Annexure C-13, with a request to deliver actual legal physical possession of the said unit. When the said letter was not replied to by the opposite parties, the complainants again sent email dated 04.06.2018, Annexure C-14 wherein it has been clearly mentioned by the complainants that they have visited their office with an intent to take over possession but the same has not been handed over them. In reply to the said email, the opposite parties,  in a very candid manner, vide email dated 04.06.2018, Annexure C-14 intimated the complainants that on account of some pending litigation in respect of the unit in question, handing over possession thereof has been kept on hold. Relevant part of the said email is reproduced hereunder:-

“..From:customerrelations_chandigarh@omaxe.com

Date:- Mon. 4 Jun 2018 at 21:04

Subject:- RE: DELAY IN DEED HANDING OVER POSSESSION OF OCIF/GROUND/510

To:Sateekshan.Sood<sateekshan.sood@gmail.com

Dear Sir

Greetings from Omaxe:

As discussed in office, on account of some litigation on units the handover of the same is kept on hold, as soon as the same gets sorted we will immediately start the handover of units. The company will extend the penalty as per the agreement for the delayed period..”

 

13.           It is pertinent to mention here that though, to wriggle out of the situation, it has been mentioned by the opposite parties in their reply that the said email did not pertain to the unit of the complainants, as the same was sent to some other buyer, yet, perusal of contents thereof reveal that it was specifically sent in respect of the unit pertaining to the complainants only i.e. OCIF/GROUND/510. The contents of email extracted above, sent to the complainants by the opposite parties stating that “on account of some litigation on units the handover of the same is kept on hold; as soon as the same gets sorted we will immediately start the handover of units; and that the company will extend the penalty as per the agreement for the delayed period”, leave no doubt with this Commission to say that the possession so offered vide letter dated 27.10.2017 was nothing but a paper possession which is not sustainable in the eyes of law. In view of the candid admission aforesaid made by the opposite parties, vide email dated 04.06.2018 i.e. after more than 7 months of issuance of offer of possession letter dated 27.10.2017, reliance placed by the opposite parties on partial completion certificate dated 10.07.2015 and also occupation certificate dated 12.07.2017 aforesaid is of no help to them. As such, it is held that in the facts and circumstances of the case, the complainants were not obliged to take over possession of the unit in question, so offered vide letter dated 27.10.2017, the same being a paper possession.
14.            At the same time, it is also held that since the opposite parties themselves have made commitment to the complainants, vide the email aforesaid that they will extend the delayed compensation for the period of delay in view of the pending litigation, as such, they are stopped from taking a plea that the complainants are not entitled to any further compensation. In our considered opinion, concealment of material facts, if any, could be said to be on the part of the opposite parties only and not the complainants because there is nothing on record that any point of time, the complainants were informed by the company that the unit in question is under litigation. It was only for the first time, vide email dated 04.06.2018 that the complainants were informed regarding the same. It is therefore held that the complainants are held entitled to compensation, what is being granted to similar located allottees.
15.           As far as plea taken by the complainants regarding non provision  of club house and other amenities in the project in question is concerned, it may be stated here that a similar controversy in respect of the same very project has already been set at rest by this Commission in Dr.Suman Mor Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and ors., consumer complaint no. 478 of 2018, decided on 09.04.2021, wherein it has been held that till the date  provision of club house and also other promised amenities in the said project, the opposite parties shall not charge any maintenance charges etc. from the complainants. In our considered opinion, if the same relief is granted in the present complaint also, qua non provision of the club house and basic amenities, being the issue related to the same very project, that will meet the ends of justice. 
16.           As far as objection taken by the opposite parties to the effect that this complaint is time barred, it may be stated here that once it has been proved on record that actual physical possession of the unit in question was never delivered to the complainants before filing this consumer complaint and the same had been taken over by them only during pendency thereof i.e. only on 05.06.2019 and that too on the orders of this Commission, as such, objection taken in this regard stands rejected.
17.           The objection taken by the opposite parties to the effect that time was not the essence of contract is devoid of merit, in the face of their candid commitment made vide condition no.23 (b) of the allotment letter/agreement dated 25.10.2012, that the company shall make its best efforts to complete the development and construction work within a period of 24 months with extended period of 6 months. It is well settled law that date of delivery of possession has to be reckoned from the conditions  agreed to between the parties, by way of allotment letter/agreement only. It is therefore held that in the face of condition of 23 (b) of the allotment letter/agreement, time was unequivocally made the essence of contract. Objection taken by the opposite parties in this regard stands rejected.
18.           Now the question arises, as to what compensation shall be granted to the complainants, for delay in delivery of possession of the unit to them and for what period?.      As per condition no.23 (b) of the allotment letter/agreement, the opposite parties committed to offer possession within a period of 24 months with grace period of 6 months i.e. total 30 months from the date of execution thereof, failing which, as per condition no.23 (h) they were liable to pay compensation @Rs.10/- per square feet per month of the super area of the unit in question, for the delayed period. Failure on the part of the opposite parties to provide complete/effective possession of the unit within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the unit, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period, they suffer mental agony, hardship and financial loss at the hands of the developers/builders. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, while discussing the above authorities and discarding the one-sided terms of the Buyer’s Agreements, the Hon’ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. In view of the observations of the Hon’ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.10/- per square feet per month of the super area of the unit in question as per clause 23 (h), which comes around between 2% to 3% p.a. only, is not sufficient to compensate the complainants for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of this reason. Therefore, in addition to aforesaid penalty @Rs.10/- per square feet per month of the super area of the unit in question, after the expiry of stipulated date of delivery of possession i.e. after 24.04.2015 (30 months from 25.10.2012) till 05.06.2019 when possession has been taken over, the complainants are also entitled to simple interest on the entire amount deposited by them @ 6% per annum.
19.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed:-
    1. To rectify/remove all the snags/defects pointed out by the complainants in the unit in question, vide Annexure C-17 colly., if not yet done, within a period of 30 days from the date of receipt of a certified copy of this order, failing which they shall be liable to pay interest @6% p.a. on the entire amount deposited by the complainants, from the date of default till realization.
    2. To pay compensation @Rs.10/- per square feet per month of the super area of the unit in question, and also interest @6% p.a. on the entire deposited amount, starting 24.04.2015 (30 months from 25.10.2012) till 05.06.2019 (the date when possession taken over by the complainants), within a period of 30 days from the date of receipt of a certified copy of this order, failing which thereafter the entire accumulated amount shall carry penal interest @12% p.a. from the date of default till this payment is made.

                    However, the opposite parties are at liberty to deduct the actual amount already paid/credited to the complainants towards delayed compensation.

1. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/- to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
2. To complete the construction of the club house in Phase-3, Omaxe Cassia/other basic amenities and obtain completion certificate in respect of the project in question from the competent authorities. However, it is made clear that the opposite parties shall not charge any maintenance charges etc. from the complainants till the time the said club house is constructed/basic amenities are provided for use of the complainants and other similar located allottees and completion certificate in respect of the project in question is obtained from the competent authorities.

 

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

 

Pronounced

19.04.2021

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

         MEMBER

 

 

Rg.