CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.373/2011
SH. AJIT SINGH
S/O SH. D.V. SINGH
R/O 1139, PROGRESSIVE SOCIETY,
SECTOR-50B, CHANDIGARH-160047
…………. COMPLAINANT
VS.
- M/S OMAXE CONSTRUCTION LTD.
THROUGH ITS CHAIRMAN AND MANAGING DIRECTOR,
OMAXE HOUSE, 7-LOCAL SHOPPING CENTRE,
KALKAJI, NEW DELHI-110019
- MR. ROHTAS GOEL,
CHAIRMAN AND MANAGING DIRECTOR,
M/S OMAXE CONSTRUCTION LTD.
OMAXE HOUSE, 7-LOCAL SHOPPING CENTRE,
KALKAJI, NEW DELHI-110019
- MR. SUNIL GOEL, EXECUTIVE DIRECTOR,
M/S OMAXE CONSTRUCTION LTD.
OMAXE HOUSE, 7-LOCAL SHOPPING CENTRE,
KALKAJI, NEW DELHI-110019
- MR. JAI BHAGWAN GOEL, EXECUTIVE DIRECTOR,
M/S OMAXE CONSTRUCTION LTD.
OMAXE HOUSE, 7-LOCAL SHOPPING CENTRE,
KALKAJI, NEW DELHI-110019
…………..RESPONDENTS
Date of Order: 02.12.2015
O R D E R
A.S. Yadav – President
The case of the complainant is that he booked a residential three bed room flat in the upcoming project of Omaxe Construction Limited named “Omaxe City, Bhiwadi” through its Head Office at Kalkaji, New Delhi by paying Rs.3,25,000/- on 25.05.2006. Approximately for two years, there was no communication from OP to complainant pertaining to development of the project and when complainant insisted on allotting the booked flat in his name, OP allotted a three bed room flat in the aforesaid project (now with changed name “Omaxe Heights” instead “Omaxe City”) allegedly through computerized draw of lots, held on 22.04.2008 and gave an allotment-cum-call letter dated 29.04.2008 mentioning the flat No.l002, Tower Jasmine-B.
It is further stated that OP made further demand of the next instalment of Rs.1,92,500/- vide letter dated 04.06.2008 stating it was due towards 10% of BSP. Again OP through letter dated 21.06.2008 asked for immediate payment and in case of non-payment threatened to charge 24% interest, even cancellation of the flat in the event of non-payment of interest. The complainant issued a cheque dated 08.06.2008 and sent the same to OP through courier on 09.06.2008 and the same was acknowledged and credited to the account of OP on 24.06.2008.
It is further stated that even after making the payment according to the payment schedule, there was no communication to the complainant from 21.06.2008 to 30.3.2010. However in the meanwhile, complainant kept contacting OP officials at their New Delhi office. Complainant contacted various officials of the OP on various occasion on their given mobile and land line numbers and enquired about the status of the said project but no one gave any information or update pertaining the said project.
It is further stated that failing to get any response form OP, the complaint sensed an unfair trade practice on the part of OP and sent a request on 30.03.2010 for the refund of all payment, through a letter and email to its email address for which OP replied mentioning that complainant’s request was under process.
It is further stated that complainant received a letter dated 31.03.2010 from OP in which a self-serving, arbitrary and unilateral offer without even seeking complainant’s prior consent or even opinion was made to him asking him to avail himself of other options of Omaxe property in other cities where omaxe were having ongoing projects and shift all the deposited money in company’s any one of the other various ongoing projects, inviting outright rejection of the same by complainant vide his letter dated 05.04.2010 even a fax message was sent on the same day to which neither company nor any of the representative employees replied.
It is further stated that the complainant requested OP to refund his money, via letter/email on 22.07.2010 for which they replied that complainant’s request is under process. Again a request, giving all earlier references, was made to refund the funds alongwith interest but that also remained unanswered.
It is prayed that OP be directed to refund Rs.5,17,500/- towards booking amount and instalment paid by complainant to OP alongwith interest @ 24% p.a. plus Rs.6 lakhs towards compensation and Rs.22,000/- towards litigation expenses.
OP in the reply took the preliminary objection that complainant is not a consumer as defined under the Consumer Protection Act, 1986. It is stated that only by depositing the earnest money for allotment of flat, a person does not become consumer. It is further stated that this Forum lacks the territorial as well as pecuniary jurisdiction to entertain the present complaint as value of the flat is more than 20 lakhs and also the subject matter of the complaint i.e. flat in question is situated in Rajasthan. It is further stated that complainant is merely an investor and invested in real estate for profit. Looking recession in real estate market and assuming not earning the expected profit on the investment unnecessary claiming that the services of OP are deficient and/or is entitled for refund of amount or interest.
It is further stated that the complaint is barred by limitation as complainant is seeking refund of amount paid in 2006 whereas the present complaint has been filed in 2011.
It is further stated that complainant has suppressed various material facts to get undue advantage of his own wrongs. True facts are:-
- OP-1 conducted the process for allotment of apartment in the said project of Bhiwadi, Rajasthan through draw of lots on 22.04.2008. The allotment was done on the due and time and complainant was allotted flat No.1006 in Tower Jasmine-B as per tentative allotment plan to be constructed by OP-1 in the project on timely payment of instalment for the development construction of the flat and accordingly complainant was communicated vide letter dated 29.04.2008 and was requested to confirm the allotment and make payment of Rs.1,92,500/- by 22.05.2008. But complainant did not made any payment and was again requested vide letter dated 21.06.2008. The complainant accepted the allotment and made payment of Rs.1,92,500/- against receipt dated 21.06.2008. However, no further payments were made by complainant for the said flat despite the repeated request and demands.
- Keeping on the ongoing demand of the various allottees to construct a low rise building, OP-1 converted the project from high rise to low rise and consequently had to allot the flat no.404 in Jasmine Tower-A with the same project with the same specifications, dimensions, areas without causing any loss or prejudice to the complainant in lieu of the earlier flat No.1002 in Jasmine-B Tower and complainant was communicated accordingly vide letter dated 25.10.2010. It was made clear to complainant that on his failure in making payment is right on the provisionally re-allotted unit shall be discontinued. However, no amount was paid by complainant, he was also provided help desk services to avail home loan to make payment vide letter dated 11.03.11, however, no amount was paid by complainant, therefore OP-1 was left with no option but to cancel the allotment and forfeit the amount on the persistent default of complainant in making payment, accordingly the allotment was cancelled, the amount was forfeited and the complainant was communicated vide letter dated 17.08.11, as such complainant is not entitled for refund of amount or claim any right over the above said provisionally allotted flat.
It is further started that project was commenced on time and the construction was in progress. Since the complainant has not made the payment in time hence his allotment was cancelled and earnest money was forfeited. It is prayed that complaint be dismissed.
We have heard Ld. Counsel for parties and carefully perused the records.
So far as the contention of OP that this Forum lacks territorial jurisdiction is concerned complaint is not seeking the allotment of flat in question he is only seeking the refund of amount paid by him. It is significant to note that the registered office of the OP is within the territorial jurisdiction of this forum. All demands were raised by OP from this office and all payments were accepted by this office all communication were sent by the complaint to this office. Hence this Forum has got territorial jurisdiction. As already stated, the complainant is requesting for the refund of the amount relating to claim is within the pecuniary jurisdiction of this Forum.
The main contention of OP is that is the complainant has failed to make the payment in time and accordingly the earnest money was forfeited.
It is an admitted fact that an amount of Rs.3,25,000 was paid by complainant to OP on 25.05.2006. Complainant has specifically stated in para 2 of the complaint that there was no communication from OP pertaining to the development of the project and when complainant insisted on allotting the booked flat he was allotted flat no.1002 tower Jasmine-B.
OP has failed to prove any letter sent to the complaint during the period of two years informing him about the progress of the construction. It is an admitted fact that complainant made further payment of Rs.1,92,500/- as demanded by the OP. Complainant again stated that there was not communication to the complainant from 21.06.2008 to 30.03.2010. He has specifically stated that he contacted various officials of Omaxe Ltd on various occasions on their given mobile and landline numbers and enquired about the status of the said project but non one gave any information or update pertaining to the said project. Complainant sensed an unfair trade practice on the part of OP and sent request letter on 30.03.2010 for the refund of all payment.
Complainant received a letter dated 31.03.2010 from OP in which a self-serving, arbitrary and unilateral offer without even seeking complainant’s prior consent or even opinion was made to him asking him to avail himself of other options of Omaxe property in other cities where Omaxe were having ongoing projects and shift all the deposited money in company’s any one of the other various ongoing projects, complainant outrightly rejected the same vide his letter dated 05.04.2010. Even a fax message was sent on the same day to which neither company nor any of the representative employees replied.
In fact the letter dated 30.03.2010 of complainant clinches the entire issue. In that letter complainant has specifically stated that he has written couple of letters to OP asking about the status of above project but same has not been informed to him and has further stated that in fact OP is not having any such project. This letter was replied by OP vide their reply dated 31.3.2010 which is reproduced as under:-
“To
Mr. Ajit Singh,
1139, Progression Hosing Society, Chandigarh
Sub:- Letter regarding the refund of your property in Bhiwadi.
Dear Mr. Ajit,
This is in reference to your letter regarding the progress of your flat in Bhiwadi. As all our respective customers are equally precious for us. Sir we would like to inform you that in Bhiwadi flats the construction would be delay so kindly requested you that we have various options where all your deposited money can be shifted in the property having good market value. So that you are benefitted in a double way i.e. safe parking of funds and good market/saleable value of the property. If you wish to enjoy such benefit, we can offer you the best deal related to the location and the price, for which you can contact Mr. Arunesh(0-9999999802 and Mr. Pradeep(0-9999999849).
Do confirm us ASAP also that you do not loose out on the options.
With Sincere Regards,
Sd/-
CUSTOMER RELATIONS
Omaxe Ltd.
Omaxe House, 10 LSC, Kalkaji, New Delhi”
It is evident from the reply itself that till 31.03.2010, there was no progress in the project. OP has admitted that construction of Bhiwadi flats would be delayed. The complainant has booked the flat in May 2006 and he was informed after four years that construction of the flats would be delayed and an alternative offer is being made. It is a case of complete deficiency in service on the part of OP. Complainant was right in asking OP to refund the amount. There was no question of forfeiting amount paid by the complainant without there being any progress in the development of the project.
OP is directed to refund Rs.3,25,000/- alongwith interest @ 10% p.a. from June 2006 and Rs.1,92,000/- alongwith interest @ 10% p.a. from July 2008. OP is further directed to pay Rs.5,000/- as compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
