Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 436.
Instituted on : 27.07.2017.
Decided on : 11.04.2019.
Kartar Singh son of Sh. Khem Chand age 55 years, r/o H.No.760-A, Vishal Nagar, Rohtak.
………..Complainant.
Vs.
- Omaxe Happy Home II Rohtak, through its Branch Manager.
- Omaxe Ltd., Corporate Office-7, Local Shopping Complex, Kalkaji, New Delhi-110019 through its Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER.
Present: Sh.Sanjeev Batra, Advocate for the complainant.
Sh. A.S. Malik, Advocate for Opposite parties..
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant booked a flat with the opposite party with booking amount of Rs.4,00,000/- and complainant deposited the amount vide receipt no.1014802 dated 23.11.2013 and priority no.HHR/32 was given to the complainant. That at the time of booking, it was assured that the construction will be started at the site within a period of 3 months and possession of the flat will be delivered within a period of one year. That there were no sign of any development or any kind of construction at the above said site whereas a period of more than 4 years has passed since the date of booking. That as there was no development work at the site, the complainant requested the opposite party for cancellation of said booking and refund the money deposited by the complainant alongwith interest but till today the amount has not been refunded to the complainant. Hence this complaint and it is prayed that OPs may kindly be directed to refund the amount of Rs. 4,00,000/- alongwith interest @ 18% per annum from the date of deposit till its realization to the complainant and also to pay Rs.50000/- on account of mental agony & harassment and Rs.10000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite parties. Opposite parties in their reply has submitted that complainant is merely an investor who has invested in a real estate project in order to earn profit and now due to adverse market conditions filed the present complaint. That the Hon’ble Forum has no pecuniary jurisdiction to entertain the present complaint as the compensation claimed in the complaint exceeds Rs.20 lakh. That the transaction took place between the parties at New Delhi. Hence this Forum has no jurisdiction to entertain the case. On merits, it is submitted that one Sangeeta Rana through a property agent voluntarily out of her own free will got herself registered with the OP for booking a residential unit in the upcoming project of the OPs vide a registration form having tentative area admeasuring 1450 sq. ft. and deposited a sum of Rs. 4,00,000/- out of which a sum of Rs.3,88,010.48/- paise was paid towards the booking amount and Rs.11,989.52/- paise was paid towards applicable service tax thereon which was deposited with the concerned government department by the OPs. Thereafter, complainant jointly with aforesaid Mrs. Sangeeta Rana applied for transfer of registration in favour of the complainant and the registration was endorsed in favour of the complainant by the respondent. Hence, it becomes clear that the complainant did not directly register himself with the respondent company for booking of a flat/unit in its residential project. It is further submitted that upon receipts of approval of the building plans from the concerned government authorities, the development and construction of the project was to be commenced at site. The complainant was duly informed that the process of allotment was about to be commenced and he would soon be intimated regarding the same. The respondent is having clear title of land and the process of registration was commenced only after receipt of necessary license, approvals, sanctions etc. from the Director, Town & Country Planning, Haryana Chandigarh and other concerned authorities. That the complainant was well aware of the fact that the development and construction of units in the project were purely tentative at the time of registration subject to approval of building and other plans by the concerned competent authority. It is denied that complainant ever requested the respondent for cancellation of booking. That there is no deficiency in service on the part of opposite party and it is prayed that complaint may kindly be dismissed against the OPs.
3. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, document Ex.C1 to Ex.C2 and has closed his evidence. Ld. counsel for the OPs has tendered affidavit Ex.RW1/A and documents Ex.R1 and closed his evidence.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. After going through the file and hearing the parties it is observed that the objection as to commercial purpose was taken by the OPs in their written statement but OPs failed to place any cogent evidence or material which could prove that the flat was purchased for commercial purpose. Regarding the objection of pecuniary jurisdiction, the total relief claimed is less than Rs.20 lacs. So this objection is turned down. Regarding the objection of territorial jurisdiction, the office of opposite parties is situated at Rohtak and the flat in dispute is also situated at Rohtak, so this Forum has territorial jurisdiction to entertain the case.
6. As per receipt Ex.C1, a cheque no.009350 dated 18.11.2013 amounting to Rs.400000/- has been issued by the complainant towards registration amount of flat in favour of Sangeeta Rani who had booked the flat with the opposite party. The contention of ld. counsel for the complainant is that opposite party company breached the terms of agreement and has not started the construction work at site. The payment was made by the complainant in the year 2013 and thereafter neither any correspondence regarding the construction of unit or demand regarding remaining payment has been made by opposite parties nor the amount has been refunded to the complainant. As such there is deficiency in service on the part of opposite parties and the opposite parties are liable to refund the amount alongwith interest and compensation to the complainant
7. In view of the above, complaint is allowed and we hereby direct the opposite parties to refund the amount of Rs.400000/-(Rupees four lacs only) alongwith interest @ 12% p.a. from the date of payment to the opposite parties till its realization and shall also pay a sum of Rs.25000/-(Rupees twenty five thousand only) as compensation on account of deficiency in service and litigation expenses to the complainant within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
11.04.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
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Renu Chaudhary, Member.
