DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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1]     Kiran Aggarwal w/o Dinesh Goel, R/o H.No.759, Sector 16, Panchkula 134109

2]     Sourabh Goel, Advocate s/o Dinesh Goel, R/o H.No.759, Sector 16, Panchkula 134109

…..Complainants

                                V E R S U S

1]     Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh 160008, through its Managing Director.

2]     Branch Manager, Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh 160008.

3]     M/s Golden Peak Township Pvt. Ltd. Wholly owned subsidiary of Omaxe Ltd., Having its registered office at 302-303, Crystal Mall, SJS Highway, Beni Park, Jaipur 302016 through its Managing Director.

                                        ……Opposite Parties

CORAM:   SH.P.D.GOEL                                 PRESIDENT

                SH.RAJINDER SINGH GILL                  MEMBER

Argued by:  Sh.Saurabh Goel, Counsel for Complainants.

                   Sh.Munish Gupta, Counsel for OPs

PER RAJINDER SINGH GILL, MEMBER

                Briefly stated, the facts of the case are that the complainant applied for Plot No.35-A measuring 483 sq. yds. with preferential location in residential township project known as ‘Omaxe Chandigarh Extn.” developed by OPs – Annexure C-1 for Rs.3,73,143.70. The total cost of the plot was Rs.79,16,017/-. The complainant made the payment of Rs.5 lacs through cheque No.563869 drawn on Punjab and Sind Bank, Sector 11, Chandigarh – Annexure C-2 and also opted for installment linked plan. The OPs raised the demand for payment vide letter dated 5.4.2010, which was agitated through e-mail dated 13.4.2010 – Annexure C-3 and reminder dated 27.4.2010. It has been further stated that firstly the OPs demanded payment as per down payment plan and on agitation, they admitted their mistake.

                It is the allegation of the complainants that they received the copy of allotment letter through courier in July, 2010 and on its perusal, it revealed that the plot number was wrongly mentioned as 35-B instead of 35-A. The OPs through e-mail dated 26.8.2010 informed the complainants that the payment of Rs.31,09,865.11 is due. The complainants gave three cheques for the payment of Rs.36 lacs in the month of December, 2010 but the OPs did not encash the cheques during the validity period of 6 months and on inquiry, it was found that the OPs cancelled the allotment and forfeited the amount deposited by the complainants. The complainants sent a legal notice dated 21.8.2011 – Annexure C-9 to the OPs but to no avail. Hence, this complaint.

2]             OPs filed the reply. The preliminary objection with regard to jurisdiction was raised. On merits, it has been denied that the complainants applied for plot No.35-A and pleaded that the allotment of plot number is prerogative of the OPs and accordingly plot No.35-B is allotted to the complainants. The complainants made the payment of Rs.5 lacs and opted installment linked plan. The OPs issued reminders for payment of the installments. The complainants did not make the payment after the initial deposit and as such they cancelled the allotment vide letter dated 8.12.2010 – R-6 as per the terms and conditions of the allotment letter – annexure C-7. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on its part and prayer for dismissal of the complaint with exemplary costs has been made.

3]             Parties led evidence in support of their contentions.

4]             We have heard the learned Counsel for the parties and have also perused the record. 

5]             The contention of the complainants is that they applied for preferential Plot No.35-A, in the Residential Township of OP, known as ‘Omaxe Chandigarh Extn.” Vide Ann. C-1 and made payment of Rs.5.00 lacs, but the OPs wrongly allotted Plot NO.35-B.  The OPs were requested to allot the said preferential plot, but they did nothing.  It is also contended that the OPs were offered the payment, subject to allotment of preferential Plot No.35-A, but the OPs neither allotted the said plot nor refunded the initial deposited amount of Rs.5.00 lacs.

6]             On the other hand, the OPs contended that the allotment of specific plot number was their prerogative as per the Basic Terms & Conditions (Ann.C-1) and the complainants were accordingly allotted Plot NO.35-B.  It is also contended that the complainant opted for the installment linked payment plan and they were accordingly issued reminders for the payment of their installments, but they did not pay even a single installment, after deposit of initial amount. Therefore their allotment was cancelled and the initial deposited amount was forfeited, as per the terms & conditions of the allotment  Ann.C-7.

7]             We find merit in the contentions of ld.Counsel for OPs.  Along with the Application Form, the Basic Terms & Conditions, has also been placed on record by the complainant as Ann.C-1. The relevant Clauses No.4, 5, 6  & 8 of the said Basic Terms And Conditions, Ann.C-1 at Page No.21, reads as under:-

“4.    The applicant/allottee has examined the tentative plans, designs and specifications of the Residential Plot and has agreed that the Company may effect such variations and modifications therein as may be necessary or as it may deem appropriate and fit in the best interest of the Project or as may be done by any competent authority.  The necessary changes/alterations may involved change in position/location, including change in dimensions, area or number etc. of the Residential Plot and the applicant/allottee hereby agrees not to claim for refund of amount paid/any compensation due the said changes.  

5.     The applicant/allottee agrees that the amount paid with the application and in installments as the case may be, to the extent of 20% of sale consideration of the Residential Plot shall collectively constitute the earnest money.

6.     Timely payment of installments of basic sale price and allied charges pertaining to the Residential Plot is the essence of the terms of the booking/allotment.  However in the vent of breach of any of the terms and conditions of the allotment by the applicant/allottee, the allotment will be cancelled at the discretion of the Company and the aforesaid earnest money together with any brokerage, interest on installments due, but unpaid and interest on delayed payments shall stand forfeited…….

8.     The applicant/allottee has specifically agreed that if due to any change in the layout, the said Residential Plot ceases to be preferentially located the Company shall refund/adjust the amount of preferential location charges paid by the applicant/allottee in the last installment as shown in the payment plan.  If due to any change in the layout/building plan, the said Residential Plot becomes preferentially located, then the applicant/allottee shall be liable and agrees to pay the preferential location charges as and when demanded by the Company as per prevailing rates.”

8]             As per the above terms & conditions, the allotment of the plot was the prerogative of the OPs and they could change it as per the requirements of the Company.  Thus, the complainants cannot say that the OPs were bound to allot the Plot No.35-A only.  Moreover, the e-mail dated 13.4.2010 (Ann.C-3) sent by the complainant Saurabh Goel, shows that they have no problem with Plot No.35-B.  Rather, he is asking only about the payment schedule and not for changing the flat. More so, when the complainants themselves did not abide by the terms & conditions of the allotment letter Ann.C-7 and did not make any payment as per the “Payment Plan of the Plot (Ann.B(Part-III)” at Page 45, the OPs were fully justified in forfeiting their initial deposited amount of Rs.5.00 lacs.  Further, the complainant No.2, being an Advocate by Profession, cannot say that he was not aware about any such terms & conditions of the application form as well as the allotment letter.

9]             In view of the foregoings, we are of the opinion that there is no deficiency on the part of OPs. The complaint is meritless. Therefore, the same is dismissed with no order as to costs.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.