Chandigarh

StateCommission

CC/4/2024

NARESH KUMAR - Complainant(s)

Versus

OMAXE CHANDIGARH EXTENSION DEVELOPERS PVT. LTD - Opp.Party(s)

KARAN SINGLA

05 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint No.	:	04 of 2024
Date of Institution	:	23.01.2024
Date of Decision	:	05.07.2024

 

1. Naresh Garg son of Sh.Amar Nath R/o House No.3279-A, Sector 24-D, Chandigarh-160023
2. Nitish Garg son of Naresh Garg son of Sh.Amar Nath R/o House No.3279-A, Sector 24-D, Chandigarh-160023

 

….Complainants

Versus

M/s Omaxe Chandigarh Extension Developers Private Limited, Registered Office: Omaxe City, 111^th Milestone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Expressway, Jaipur-302026 through its Authorized Manager.

 

2^nd Address:-

 

Zonal Office:- India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

 

Email:-customerrelations_chandigarh@omaxe.com

…..Opposite party

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR.PADMA PANDEY, MEMBER

 

Present:-               Sh.Ravi Mishra, Advocate proxy for Sh.Karan Singla,    Advocate for the complainants.

                             Sh.Ashim Aggarwal, Advocate for the opposite party.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   This complaint has been filed by the complainants, seeking possession of unit bearing no.TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet, purchased by them from the opposite party, in its project named - “The Lake”, Omaxe New Chandigarh, Mullanpur, Punjab,   total sale consideration whereof was fixed at Rs.79,42,175/-. Alongwith possession, relief of payment of delayed compensation for the  period of delay, compensation for mental agony and harassment, refund of GST etc. has also been sought by the complainants.

2.           It is the case of the complainants that in the first instance, they had purchased unit bearing no.TLC/MYSTIC-A/FIFTH/501, measuring 1285 square feet in the said project for total sale consideration of Rs.56,63,404/-, vide  allotment letter/agreement dated 16.12.2015, Annexure C-2, yet, its possession was not delivered by 15.12.2019 i.e. within a total period of 48 months as envisaged under clause 40 (a) of the said allotment letter/agreement. It is further the case of the complainants that under above circumstances, they accepted relocation to bigger unit no.TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet, vide allotment letter/agreement dated 29.01.2020, Annexure C-12, under the hope that possession of the said  unit will be delivered to them, but the opposite party failed to deliver the same by 31.07.2021 i.e. the date committed vide clause 7.1 of the said allotment letter/agreement. It has been stated that the opposite party vide email dated 27.01.2023 had informed the complainants that the construction and development work at the project site is still under progress and possession of the new unit will be delivered by March 2024. It has been averred that even the amount of GST has been illegally received from the complainants and opposite party is liable to refund the same. Hence this complaint.
3.           The opposite party in its written reply, while admitting factual matrix of the case with regard to sale of the unit in question to the complainants in the project in question, in the manner stated in the complaint; payments made by them as mentioned in the complaint; execution of allotment letters/agreements etc. took various objections/pleas as under:-
   1. that in the face of existence of arbitration clause in the agreement, this Commission is having no jurisdiction to decide this complaint and only an arbitrator can adjudicate it;
   2. that the relief sought qua GST is barred by limitation;
   3. that the complainants were defaulters in  making payments towards the unit in question and the delayed payment interest has not been paid by them till date, despite sending various letters/reminders in that regard;
   4. that there was no delay in delivery of possession of the earlier unit, as it was before the date of expiry of possession of the said unit, that the complainants had moved application dated 24.09.2019 for relocation to a bigger unit i.e. TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet instead of TLC/MYSTIC-A/FIFTH/501, measuring 1285 square feet;
   5. that the complainants themselves have submitted the document, Annexure C-14, stating therein that they want to surrender the TLC/MYSTIC-A/FIFTH/501, measuring 1285 square feet voluntarily and without any undue pressure/coercion and thereafter vide letter dated 20.03.2020 (Annexure OP-7) had requested to cancel the said unit due to personal  issues and the amount against the same be adjusted towards TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet;
   6. that the complainants have concealed material facts from this Commission that they themselves have requested for cancellation of earlier unit and transfer the amount after deduction of GST to the new/ unit;
   7. that because the GST against the cancelled unit had already been paid to the government, the question of refund thereof did not arise;
   8. that occupation certificate for MYSTIC TOWERS-A, B and C have been received from the competent authorities on 10.10.2023, which shows that the construction activity is in full swing at the project site;

 

4.           On merits, it has been fairly stated that the development at the project site is in full swing and possession of the unit in question is likely to be handed over shortly, after obtaining the requisite statutory approval. However, to justify the delay in delivery of possession of the said unit, it has been stated that delay took place because of the force majeure circumstances having been faced by the opposite party due to COVID-19, as a result whereof men and material could not be arranged at the project site. It has been averred that the competent issued various advisories, giving relief to the builders by extending the dates for completion of the projects. Plea taken by the opposite party in para no.6 of its written version to this effect is reproduced hereunder:-

“……That the development of the project is in full swing and possession of the Unit is likely to be handed over shortly after obtaining the requisite statutory approval. That the occupation certificate of the project "THE LAKE-MYSTIC TOWER A and B" has been obtained on 10.10.2023 and the same shows that the construction activity is in full swing (Ext. OP-8). It is stated that the alleged delay in handing over of possession took place due to force majeure conditions including the Covid pandemic during the period 2020 to 2022. That the PUNJAB RERA had granted extension to the OP in view of the Force Majeure conditions and was extended time and again. The letter granting extension clearly interalia states that the validity of the above said project was upto 31.07.2021 and was further extended automatically for six months due to COVID-19 upto 31.01.2022 as per this Authority circular dated 28.10.2020, which was further extended for one year under Section 6 of the Act upto 31.12.2022, vide this letter dated 07.02.2022. The limitation period of the mega project was thereafter extended by the competent Authority i.e. PUDA upto 31.12.2023 (Ext. OP-6). Hence period from 31.07.2021 to 31.12.2023 ought to be excluded on ground of force majeure circumstances.……”

 

5.           While denying the rest of the averments made in the complaint, the opposite party prayed for dismissal of the complaint with costs.
6.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written reply of the opposite party.
7.           The parties led evidence, in support of their case and also filed written arguments.
8.           We have heard the counsel for the contesting parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
9.           First coming to the objection taken by the opposite party with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
10.           It is not in dispute that in the first instance, the complainants had purchased unit bearing no.TLC/MYSTIC-A/FIFTH/501, measuring 1285 square feet in the said project for total sale consideration of Rs.56,63,404/-, vide  allotment letter/agreement dated 16.12.2015, Annexure C-2, possession whereof was to be delivered latest by 15.12.2019 i.e. within a total period of 48 months as envisaged under clause 40 (a) of the said allotment letter/agreement. However, it is coming out from the record that vide letter dated 20.03.2020, Annexure OP-7, the complainants had requested the opposite party to cancel the allotment of unit bearing no.TLC/MYSTIC-A/FIFTH/501 and to adjust the amount of Rs.47,14,922/- after deduction of Rs.2,44,880/- i.e. total Rs.44,70,042/- against new unit no.TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet. The complainants have not disputed the contents of this letter, Annexure OP-7. It is further coming out from the record that thereafter fresh allotment letter/agreement dated 29.01.2020, Annexure C-12 in respect of unit bearing no. TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet was executed between the parties, possession whereof was  to be delivered latest by 31.07.2021 as envisaged in clause 7.1 of the said allotment letter/agreement. Total price of the said unit bearing no. TLC/CASPEAN-F/SEVENTH/703 was fixed at Rs.79,42,175/- against which the complainants have paid Rs.76,65,562/- as is evident from the payments receipts, Annexures C-4 to C-11 which also includes the adjustment of Rs.44,70,042/-  aforesaid. Not even a single evidence has been placed on record by the complainants to prove that the said relocation to TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet was thrust upon them by the opposite party. It is also very significant to add here that even from the contents of letter dated 04.05.2022, Annexure C-13, placed on record by the complainants themselves, it is clearly coming out that the complainants themselves have stated therein that on 24.09.2019 i.e. before the expiry of date of possession of earlier unit bearing no. TLC/MYSTIC-A/FIFTH/501, measuring 1285 square feet, they opted for a larger flat in the same project i.e. TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet in the said project and that the amount of Rs.44,70,142/-  after deduction of GST stood adjusted against the said new unit.   Thus, from the documents referred to above, it can safely be said that the said relocation from unit bearing no. TLC/MYSTIC-A/FIFTH/501, measuring 1285 square feet to TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet was mutually agreed by both the parties i.e. the complainants and the opposite party, as a result of which, fresh allotment letter/agreement dated 29.01.2020, Annexure C-12 was executed between them, which means that there was  legal novation of the contract between the parties. Under these circumstances, it is held that any relief sought by the complainants under the initial allotment letter/agreement dated 16.12.2015, Annexure C-2, which stood already replaced with fresh allotment letter/agreement dated 29.01.2020, Annexure C-12 with the consent of the parties,  cannot be awarded to them.
11.           The next question that falls for consideration is, as to whether, the complainants are entitled to get any relief in this case or not. It may be stated here that it is evident from clause 7.1 of the allotment letter/agreement dated 29.01.2020, Annexure C-12 that possession of  unit bearing no. TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet was to be delivered to the complainants on 31.07.2021. However, it is an admitted fact that possession of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703 has not been delivered to the complainants till date. At the same time, the opposite party in its written version has very fairly stated that the development at the project site is in full swing and possession of the unit in question is likely to be handed over shortly, after obtaining the requisite statutory approval. Thus, this admission on the part of the opposite party is sufficient to come to the conclusion that the complainants are entitled to get compensation for the period of delay in delivery of possession of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703.  However, to wriggle out of the situation of delay in delivery of possession of  unit bearing no. TLC/CASPEAN-F/SEVENTH/703 to the complainants, counsel for the opposite party has taken shelter under the force majeure circumstances as under:-

 

1. that due to COVID-19 lockdown was announced on  15.03.2020 in the country, as a result of which it became difficult for the opposite party to arrange men and material at the project site; and
2. that the Government of India issued various advisories, giving relief to the builders by  extending the dates for completion of the projects;

 

It may be stated here that admittedly lockdown in the country was announced on 25.03.2020, which was lifted in April 2020. At the same time, this Commission is also not oblivious of the fact that the Government of India, Ministry of Housing and Urban Affairs, Housing Section, vide office memorandum dated 13.05.2020 had extended the registration and completion date or revised completion date or extended completion dates by 6 months due to outbreak of COVID-19, which was extendable up-to further 3 months i.e. total 9 months. Thus, in our considered opinion, the opposite party is entitled to get immunity of these 9 months from the actual date of offering possession of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703 to the complainants i.e. possession should have been delivered to the complainants latest by 30.04.2022 (09 months from 31.07.2021). However, it is coming out from the record that even by the said date (30.04.2022) also or even thereafter, possession of the unit has not been offered and  delivered to the complainants, meaning thereby that there has been an inordinate delay in the matter, which is continuing, because even the date when arguments were heard in this case, it was not offered and delivered. Thus, in our considered opinion, by not offering and delivering possession of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703 by the promised date or even with the extended period of 9 months due to COVID-19, referred to above, the opposite party is deficient in providing service and guilty of adoption of unfair trade practice.  

12.           As far as plea taken by counsel for the opposite party to the effect that the project in question stood extended by the competent Authority till 31.12.2023. vide letter dated 24.04.2023, Annexure OP-6, it may be stated here that we have gone through the contents of this letter and found that it pertains to the validity of registration of the project “Group Housing The Lake”  upto 31.12.2023, under Section 8 of the Real Estate (Regulation and Development Act, 2016). In our considered view any such letter issued by the RERA for registration qua validity of registration of the project “Group Housing The Lake” has no connection whatsoever, with the delay caused by the opposite party in completing the construction and development activities at the project site and delivery of possession of the unit bearing no.TLC/CASPEAN-F/SEVENTH/703 to the complainants. In this view of the matter, plea taken by the opposite party in this regard stands rejected.
13.           Now, we will like to decide as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession, starting from 30.04.2022. Not even a single convincing evidence has been placed on  record  by the opposite party, as to why  delay took place in offering actual physical possession of the  unit bearing no. TLC/CASPEAN-F/SEVENTH/703 to the complainants, beyond 30.04.2022. Thus, by not offering and delivering actual physical possession of  unit bearing no. TLC/CASPEAN-F/SEVENTH/703 to the complainants for such long time, the complainants have definitely gone through tremendous  mental agony, harassment besides financial loss. As stated above, failure of the opposite party to offer and deliver possession of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703, for such an inordinate delay which is still continuing, amounts to deficiency in service and adoption of unfair trade practice on its part. 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. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil  Appeal  No.11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of actual physical possession. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra). Furthermore, in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered.  Thus, in the present case also, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them in respect of  unit bearing no. TLC/CASPEAN-F/SEVENTH/703 starting from 30.04.2022 (09 months from 31.07.2021) onwards till possession of the said unit is actually delivered to them, that will meet the ends of justice.
14.           It is necessary to add here that the opposite party also cannot wriggle out of its liability, by saying that delay took place on account of the reason that the complainants defaulted in making payment  because not even an iota of evidence has been placed on record by the opposite party to prove that there is any default in making payment on the part of the complainants. It is not out of place to mention here that though not proved, yet, even if it is assumed for the sake of arguments that the complainants, at some point of time had withheld some amount of sale consideration, after seeing that the opposite party is not in a position to deliver possession of the said unit and there will be an inordinate delay, then also they were legally right to do so, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.   Objection taken in this regard by the opposite party also stands rejected.
15.           Now coming to the plea taken by the complainants that they are  entitled to get refund of GST already paid to the opposite party, it may be stated here that it is clearly coming out from the contents of letter dated 04.05.2022, Annexure C-13, placed on record by the complainants themselves, wherefrom it is  established that they have agreed for deductions of the amount of GST,  at the time of opting  unit bearing no. TLC/CASPEAN-F/SEVENTH/703, measuring 1850 square feet, whereafter, the remaining amount of Rs.44,70,042/- was got adjusted against the said unit. Under these circumstances, now the complainants are estopped from raising the issue qua GST at this belated stage. Plea taken by the complainants in this regard therefore stands rejected.   
16.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite party is directed as under:-
    1. To hand over physical possession of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703 in the project in question, to the complainants, complete in all respects, after obtaining occupation and final completion certificates from the competent Authorities, within a period of two months (02 months) from the date of receipt of a certified copy of this order, on receipt of remaining sale consideration from the complainants, strictly as per the sale consideration mentioned in the allotment letter/agreement, without charging any delayed payment charges from the complainants.  
    2. To get the sale deed executed in respect of the unit bearing no. TLC/CASPEAN-F/SEVENTH/703 in favour of the complainants within a period of one month (01 month) from the date of delivery of possession thereof, as ordered in sub-para no.(i) above, on payment of registration and stamp duty charges by the complainants.
    3. To pay to the complainants, compensation by way of interest @9% p.a. on the entire received sale consideration in respect of unit bearing no.TLC/CASPEAN-F/SEVENTH/703 from 30.04.2022 (09 months from 31.07.2021) till 31.07.2024 within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 30.04.2022 to 31.07.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
    4. To pay to the complainants, compensation by way of  interest @9% p.a. on the entire received sale consideration, w.e.f. 01.08.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para nos.(i) and (ii) above. 
    5. To pay to the complainants, compensation to the tune of Rs.75,000/- for causing them mental agony and harassment, deficiency in providing service and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.35,000/-, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.
17.           Pending applications, if any stand disposed of accordingly
18.           Certified copies of this order be sent to the parties, free of charge, forthwith.
19.           The file be consigned to Record Room, after completion.

 

Pronounced.

05.07.2024

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

MEMBER

Rg.