Chandigarh

StateCommission

CC/136/2019

Shri Akhil Gupta - Complainant(s)

Versus

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

Amitabh Suri Adv.

21 Jan 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	136 of 2019
Date of Institution	:	06.06.2019
Date of Decision	:	21.01.2021

 

1. Sh.Akhil Gupta aged 39 years son of Sh.Munna Lal Gupta resident of 99 Ward No.3 PAHADI GALI Vikas Nagar, Dehradun, Uttrakhand.

 

2. Smt. Parul Aggarwal aged 35 years w/o Sh. Akhil Gupta, resident of 99 Ward No.3 PAHADI GALI, Vikas Nagar, Dehradun, Uttrakhand.

 

Present Address : D-302, Pinnacle Building, The Woods, Wakad, Pune – 411057.

 

……Complainants

V e r s u s

1.             M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. having Regd. Corp. Office 10 L.S.C. Kalkaji, New Delhi through its Directors, Partners, Chief Executive Officer and Managing Director Mr.Rohtas Goel.

2nd Address :

M/s Omaxe Chandigarh Exn. Developers Pvt. Ltd., SCO No.143-144, Sector 8-C, Chandigarh through its Directors, Partners, Chief Executive Officer and Managing Director.

3^rd Address :

M/s Omaxe Chandigarh Extension, Site Address : In The revenue Estate of Villages Kansala, Parol, Kartarpur, Rani Majra Takipur Boothgarh, Dhode Majra Rasoolpurand Bhagat Majra In Mullanpur LPA (GMADA) District S.A.S. Nagar (Mullanpur) Punjab through its Directors, Partners, Chief Executive Officer and Managing Director.

                                                             .... Opposite Parties

BEFORE:         JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Argued by:      

Sh. Udit Garg, Advocate for the complainants.   

Sh.  Gazi Mohd. Umair, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

                The facts, in brief, are that the complainants booked a plot vide OCE/P3/430 of 200 sq. yds. in the project of the Opposite Party by paying booking amount of Rs.10,00,000/- dated 05.04.2013. It was stated that the Opposite Party told the complainants that the allotment would be through lottery and invitation would be sent to them but the Opposite Party never sent or invited the complainants for draw. After waiting for two years, when the complainants approached the Opposite Party, it was told that there was no availability of 200 sq. yds. plot and till time, the complainants had already paid third installment. Therefore, the Opposite Party forced the complainant to choose another plot of different size at enhanced price and stated that otherwise there would be no refund. Under compelled situation, the complainant chose plot No.OCE/II/4/1061 E of size 220.66 on enhanced price. The complainants made the total payment of Rs.64,18,732/- as per the Development Linked Plan opted by them but after receipt of the huge amount, the Opposite Party failed to execute the Agreement and even failed to handover possession of the unit, in question, within a period of 18 months from the date of booking i.e. by 04.04.2015.  It was further stated that the complainants visited the Opposite Party where he came to know that there is no plot or even the land is not available with the Opposite Party. 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 Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.                The Opposite Party, in its written version, has taken objection that the complainants did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, 1986, as they purchased the unit for the purpose of investment/speculation/commercial purposes. It was further stated that the complainants have concealed vital facts, as possession was offered and letter dated 24.10.2018 was sent to execute the conveyance deed/sale deed as well as reminders, therefore, the complainants are not liable for compensation. It was further stated that the complaint was time barred having been filed after two years of alleged cause of action. It is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. Thus, the complainants are not entitled to claim possession within any time bound manner as same would amount to specific performance of the contract. It was further stated that this Commission has no pecuniary jurisdiction and territorial jurisdiction to entertain the matter. It was further stated that possession of the plot was to be handed over as per terms of the Agreement. It was denied that the Opposite Party ever told the complainants that the allotment would be through lottery. It was further stated that in pursuant to application form for booking of the plot on 05.04.2013, the Opposite Party vide letter dated 21.06.2013 informed the complainants that their booking request had been processed successfully (Exhibits OP/2 & 3).  It was further stated that the complainants themselves requested for alternative plot, as such, unit No.1061 E was confirmed vide email dated 28.01.2016. It was further stated that the Opposite Party received an amount of Rs.64,12,732/-.  It was further stated that the Opposite Party repeatedly sent letters to the complainants to take over possession but they did not come forward to take the same or execute the conveyance deed (Exhibit OP/4). It was further stated that the said plot is ready in all respects and partial completion certificate obtained on 28.04.2017.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice.

3.                The complainants, filed rejoinder to the written statement of the Opposite Party, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party. 

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.             The first 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 as they are residing at Dehradun, Uttrakhand and, as such, purchased the plot in the project of the Opposite Party purely for investment/speculation purposes.  After going through the record, we are of the view that the objection taken by the Opposite Party does not carry any weight and is liable to be rejected because the complainants have specifically mentioned in their complaint that the Opposite Party influenced the complainants with the name & prestige as Omaxe is a giant company & complainant’s family requirements for residential plot with good size and independent plot of 200 sq. and complainants therefore decided to purchase the plot in Omaxe Mullanpur for personal requirement. The complainants in their rejoinder have clearly stated that their native place is Dehradun and at the time of booking he was working in IT Park, Chandigarh. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainants, 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 Party, mere bald assertion i.e. simply saying that the complainants purchased the property for investment/speculation 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 Kavit Ahuja vs. Shipra Estates I (2016) 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. The principle of law, laid down, in the aforesaid case, 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 Party, in its written reply, therefore, 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. In the instant case, it is evident from the record, that the Opposite Party annexed a letter dated 21.06.2013 (Exhibit OP/3) which was sent by the Opposite Party from its Chandigarh Office, as the aforesaid document bore the address as “SCO 143-144, First Floor, Sector 8-C, Chandigarh 160008”. 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 Party, in its written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

8.                Now coming to the objection taken by the Opposite Party regarding pecuniary jurisdiction, it may be stated here that the complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, the Consumer Foras were required to take into consideration the value of the goods and compensation claimed if any. In the present cases, if the total value of the plot in question and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and falls below Rs.1 crore, respetively. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide the complaint. Objection taken in this regard stands rejected.

9.                As far as objections raised by the Opposite Party, to the effect that this complaint is time barred and the time was not the essence of the contract between the parties, it may be stated here that the same is devoid of merit, in view of observations made by the Hon’ble National Commission in a case titled as Ansal Housing and Construction Ltd. Vs.  Tulika Gupta & anr., First Appeal No. 545 of 2017, decided on 24 Aug 2017, to the effect that till the time either the possession is handed over to the allottees or the amount paid by them was refunded; there will be a continuing cause of action to file a consumer complaint. Relevant part of the said order is reproduced hereunder:-

“As regards the plea of limitation, ordinarily if the  possession is not given to the allottees, they would have a recurrent cause of action to file the complaint till the time either the possession was given to them or the amount paid by them was refunded.......”

 

                        This view also finds support from the judgment of Hon’ble Supreme Court of India in case titled as Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action, in favour of the allottee/buyer. Furthermore, since the Company is still utilizing the amount paid by the complainants and has not refunded the same, as such, in that event also, there is a continuing cause of action in her favour, in view of law laid down by the National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 and Saroj Kharbanda Versus Bigjo's Estates Limited, First Appeal No. 986 of 2016, decided on 01 Feb 2018, in which it was held that the builder/opposite party cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount. Relevant part is reproduced hereunder: -

“On the other hand, the OP builder has also not been able to explain as to why they were keeping and enjoying the money deposited by the complainant all these years. They could have cancelled the allotment made in favour of the complainant and made attempts to return the money deposited in terms of the agreement/understanding between the parties, but they did not do so. Since, the part amount deposited by the complainant has been lying with the OP for all these years, it would not be justified to conclude that the complaint is barred by limitation. This is, therefore a case of continuing cause of action, because the OP builder had no right to forfeit the money deposited by the complainant.”

 

                        In the present case, the possession has not been offered or delivered within the stipulated period to the complainant till date. Under these circumstances, it is held that this complaint is not at all barred by limitation. Even otherwise, on the one hand, the Company holds that this complaint is barred by time, whereas, in the same breath, it also holds that since time was not the essence of contract ad, as such, it is entitled for extension of time. In the same breath, both objections taken by the Company, which are contrary to each other, cannot be taken into consideration and are, accordingly, rejected.  

10.              The next question that falls for consideration before us is as to whether the Opposite Party offered possession of the plot to the complainants complete in all respects or not. The answer, to this, question is in the negative. According to the complainants, they booked plot vide OCE/P3/430 of 200 sq. yds. on 05.04.2013 by paying booking amount of Rs.10 lakhs, as is evident from copy of cheque (Annexure-2) and the Opposite Party also informed the complainants that the allotment of the said plot will be through lottery and invitation would be sent to the complainant but the Opposite Party never invited or informed about any draw for allotment. Thereafter, according to the complainants, they made payment of Rs.6,50,000/- on 05.06.2013, Rs.3,00,000/- on 26.12.2013 and Rs.2,50,000/- paid on 06.01.2014.  After waiting for two years, the complainants approached the Opposite Party when the Opposite Party informed that 200 sq. yds. plot is not available and, as such,  under compelled circumstances, the complainants chose another plot of different size at enhanced rate among three plots offered by the Opposite Party in the year 2016. However, this fact has been denied by the Opposite Party in its written statement and stated that plot number was changed on the request of the complainant. However, the Opposite Party has failed to place on record any request letter of the complainants to allot another plot. Even the complainant has placed on record copy of email dated 23.01.2016, which was sent by the Opposite Party to the complainant(s), to prove the fact that the Opposite Party sent list of three plots and requested to chose the another plot. In the instant case, the complainants paid the total amount of Rs.64,18,732/- in respect of the unit, in question. Even both the parties failed to place on record any Buyer’s Agreement. As per the complainants, possession was to be delivered by the Opposite Party within 18 months alongwith the grace period of 6 months, which comes out to be 2 years, maximum from the date of booking i.e.05.04.2013 i.e. by 04.04.2015 but the complainant(s) sent email dated 17.03.2019 (Annexure – 5) to the Opposite Party to complete the registration of plot as he would be in Chandigarh from 15^th – 17^th April, 2019 and requested to arrange the registration of the plot during these dates but the Opposite Party failed to deliver any possession to the complainants, as such, there is delay of more than four years approximately. On the other hand, the Opposite Party has submitted that it sent a letter dated 24.10.2018 (Exhibit OP/4) for registration of conveyance deed/sale deed  and the same was sent through courier. A bare perusal of the said courier receipt shows that it does not bear proper address of the complainants, which is utmost necessary for any letter to reach its destination. Even nothing was mentioned in column No.13 of the said courier receipt and receiver’s name column is blank. Moreover, at the time of hearing arguments on 08.01.2020, the learned Counsel for the Opposite Party submitted that plot of 200 sq. yds. was available at the time when the complainants booked the plot. As such, Managing Director of the Company was directed to submit his affidavit alongwith approved sanction plan by the competent authority as to whether plot of 200 sq. yds. was available at the time of booking of the plot by the complainants i.e. 05.04.2013. He will also disclose the number of plots having 200 sq. yds. area and will disclose whether those plots have been available with the Company or sold. The said affidavit was to be furnished by the Managing Director of the Company within 10 days from that date  but till date, no affidavit has been placed on record by the Opposite Party to prove the said fact. Moreover, offer of possession letter has not been placed on record by the Opposite Party to prove that on which date, the possession was offered. Even nothing regarding possession was mentioned in the said letter dated 24.10.2018 (Exhibit OP/4). The aforesaid act of the Opposite Party amounted to grave deficiency in providing service, negligence and adoption of unfair trade practice on its part. Under these circumstances, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plot/unit in a developed project by the promised date or if there is no agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that if we order refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited, in the respective complaints, that will meet the ends of justice.

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 deposited the total amount of Rs.64,18,732/- with the Opposite Party in respect of the unit, in question.  It is also the admitted fact that the Opposite Party failed to deliver possession of the unit, complete in all respects, to the complainants, within the stipulated time frame or even the time, when the complaint was filed. So, the complainants are thus, entitled to get refund of amount of Rs.64,18,732/-. In view of above facts of the case, the Opposite Party is 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.64,18,732/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its 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.64,18,732/- alongwith simple interest @12% p.a., from the respective dates of deposits till realization. 

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

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

1. To refund the amount Rs.64,18,732/-, to  the  complainants, alongwith interest @12% p.a.,  from the date of deposit onwards.
2. To pay compensation, in the sum of Rs.1.50 lacs, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of 12% p.a. from the date of default, and interest @12% p.a, on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

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

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

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

Pronounced.

January 21^st, 2021.                                        Sd/-

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

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