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.398/2011
SMT. KAMLESH CHAUHAN
W/O SH. R.S. CHAUHAN
136-B, 1ST FLOOR, A-1 BLOCK,
JANAKPURI, NEW DELHI-110058
& SH. MANISH CHOPRA
…………. COMPLAINANT
Vs.
M/S OMAXE CONSTRUCTION LTD.,
OMAXE HOUSE, 7 LOCAL SHOPPING CENTRE
KALKAJI, NEW DELHI-110019
…………..RESPONDENT
Date of Order:12.11.2015
O R D E R
A.S. Yadav – President
Complainant alongwith co-applicant Sh. Mainsh Chopra applied for allotment of apartment in the project “Omaxe City Jaipur” of OP and paid a sum of Rs.3 lakhs. Vide letter dated 02.5.2009, OP allotted apartment No.801 in Eureka-1 Tower, 8th Floor situated at GH-3/GH-4 in Omaxe City Jaipur.
However this project could not be started by the OP. Accordingly complainant requested for refund of the amount and submitted the original allotment letter dated 02.5.09 alonwith original receipt dated 30.6.2006 to OP. However the amount was not refunded by the OP rather OP started a new housing project “Omaxe Executive Homez” on side of express highway and offered them apartment of their choice in its new project vide letter 04.8.10 and letter dated 21.1.11. However the applicants have already intimated to OP for the refund of amount vide letter dated 25.2.11 and 04.4.11 as they were not interested in the new project. OP again instead of refunding the amount wrote a letter dated 04.5.11 offering apartment in their new project Omaxe Executive Homez however the applicants were not interested in their project and requested for the refund of the amount. The last letter was written by them on 13.8.11 for the refund of the amount alongwith 15% interest.
OP in the WS took the preliminary objection that complainant is not a consumer as defined under Consumer Protection Act as complainant merely deposited booking amount and by depositing merely a booking amount a person does not become a consumer.
It is further stated that this Forum has no territorial jurisdiction to entertain the present complaint as the complainant has applied for allotment of flat in the project of OP at Jaipur which is beyond the territorial jurisdiction of this Forum.
It is further stated that there was no deficiency in service on the part of OP and OP has already requested complainant to get allotment of flat in their new project Omaxe Executive Homez at Jaipur express highway. There is no provision for refund of the amount. Complaint is barred by limitation as the amount was deposited in 2006 and the present complaint has been filed in 2011 beyond the statutory period of limitation. The complaint is not maintainable as co-applicant Manish Chopra has not been made a party in the present complaint. Complainant was provisionally allotted apartment No.801 on the 8th floor in Eureka-1 Tower in the project Omaxe Heights, Omaxe City Jaipur. The allotment was provisional subject to any change.
It is further stated that the construction in Eureka-1 Tower project was slow for the reason beyond the control of OP and the complainant was pursuing for early construction, therefore, she was suggested to get the allotment in the new project. It is prayed that complaint be dismissed as there was no deficiency in service.
We have heard Ld. Counsel for parties and carefully perused the record.
It is a fact that complainant alongwith co-applicant applied for allotment of flat in the project of OP and deposited Rs.3 lakhs, complainant is indeed a consumer.
So far as the territorial jurisdiction is concerned, in this complaint, the complainant is not seeking for the possession of apartment rather seeking refund of amount deposited with OP The amount was deposited in the office of OP at Kalkaji, New Delhi which is within the territorial jurisdiction of this Forum. All the correspondence has been made from the office of OP at Kalkaji, New Delhi. The cause of action arose within the territorial jurisdiction of this Forum hence this Forum has got the territorial jurisdiction.
The present complaint is also not barred by limitation as admittedly the amount was deposited in 2006 nothing happened for almost three years. In 2009 the allotment was made in Eureka-1 Tower. However, construction in Eureka-1 Tower was not undertaken by OP. Even OP in WS has taken the plea that construction in Eureka-1 Tower was slow for the reason beyond their control. Complainant was offered allotment of flat in the new project which was not acceptable and accordingly the complainant asked for the refund of the amount. Complainant wrote letter dated 25.2.11 to OP stating that they were allotted apartment No.801 Eureka-1 Tower however the project could not get clearance form the concerned authorities and no work was started in the project. Complainant requested about a year ago for the refund of their amount and deposited the original allotment letter dated 02.5.09 and original receipt dated 30.6.09. OP vide letter dated 04.8.10 and 21.1.11 called upon complainant for allotment of flat in their new project Omaxe Executive Homez owhich the complainant declined and asked for the refund of the amount vide her letter dated 25.2.11, 4.4.11, 17.5.11, 13.7.11 and 13.8.11 but she did not receive any response from OP. The last letter for refund was sent on 13.8.11. The present complaint has been filed on 22.9.11. The same is within the time and not barred by limitation.
So far as contention of OP that the complaint is bad as co-applicant Manish Chopra has not been joined is without basis. It is settled law that one of the co-applicant is competent to file the complaint even otherwise the complainant has specifically stated that he has taken authority form co-applicant to file the present complaint.
It is proved from the documents on the record that the complainant was allotted flat in Eureka-1 Towers. As per the complainant construction in Eureka-1 Tower could not start because of lack of permission form the appropriate authority. The case of the OP is that there was slow progress in the construction of the project for the reason beyond their control. OP has not placed on record any document to show that they had taken permission from the appropriate authority for construction of Eureka-1 Tower. The complainant has already asked for the refund of the amount and submitted the original documents. The offer made by OP for allotment of the flat in the new project was declined by complainant and complainant has written number of letters for the refund of amount however OP did not refund the amount.
It is a clear cut case of deficiency in service on the part of OP.
OP is directed to refund Rs.3,00,000/- alongwith interest @ 10% p.a. from the date of deposit and also to pay Rs.5,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied 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
