Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 539.
Instituted on : 15.09.2017.
Decided on : 07.12.2018.
Ram Niwas age 69 years son of Sh. Mozi Ram, Resident of H.No.445, Village Kharawar Distt. Rohtak. Ph.No.9896601007.
………..Complainant.
Vs.
1. Omaxe Happy Home II Rohtak, Jhajjar, Rohtak Road, Rohtak with corporate address:
2. Corporate Office-7, Local Shopping Complex, Kalkaji, New Delhi-110019 (India).
3. Reg. Office- Shop No. 19B, First Floor, Omaxe Celebration Mall, Sohna Road, Gurgaon-122001.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER.
Present: Sh. Jaswant Singh, Advocate for the complainant.
Sh. AS Malik, Advocate for OPs.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant agreed with the opposite party to purchase a floor unit measuring 1450 Sq. feet with total consideration of Rs. 40,00,000/- at Omaxe Happy Home-II, Rohtak. The actual site exists at Rohtak-Jhajjar Road near Mayana village. The said unit was part of construction link payment plan. Hence rest of the payment, after earnest money of Rs. 4,00,000/- was to be given as per further construction at different stages. At the time of agreement, the company assured the rapid construction plan to be time bound project which would be finished within time in all circumstances. But despite all assurances, claims and commitments, the company never cared for construction of time bound project and obviously the above mentioned unit is still pending to be started. That initially complainant deposited Rs.400000/- booking amount within time but the opposite party company breached the terms of agreement and now the opposite party enforcing the complainant for purchasing another piece of land i.e. plot in lieu of floor and as such terms are not part of the agreement above mentioned. The complainant has already met OPs several times personally as well as telephonically and has requested the company to refund the deposited amount of Rs. 4,00,000/- with agreed interest. But, except false assurances, the company did nothing. Hence this complaint and the complainant has prayed that OPs may kindly be directed to return the amount of Rs. 4,00,000/- alongwith interest @ of 24% per annum from the date of encashment of cheque by OP till its realization by the complainant and total amount till the filing of present complaint comes as Rs. 4,00,000/- + 3,60,000/- = Rs. 7,60,000/- and also to pay Rs. 40,000/- as compensation as well as litigation expenses.
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 complainant through a property agent voluntarily out of his own free will got himself registered with the OP for booking a residential unit in the upcoming project of the OPs vide an 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. 11,959.52/- paise was paid towards applicable service tax thereon which was deposited with the concerned government department by the OPs. 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 no unit is being offered to the complainant at different location. The unit, if any offered to the complainant, is situated to the same location where the complainant got himself registered for allotment of a unit. Further, 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 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 and has closed his evidence. Ld. counsel for the OPs has tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R3 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 statement of account Ex.C1, complainant had issued a cheque no.35266 amounting to Rs.400000/- in favour of opposite party which was debited from his account on dated 26.11.2013. The contention of ld. counsel for the complainant is that opposite party company breached the terms of agreement and now the opposite party is enforcing the complainant for purchasing another piece of land i.e. plot in lieu of floor and such terms are not part of the agreement above mentioned. We have also observed that opposite party has not placed on record any document/agreement to prove that replacing of site i.e. plot in lieu of floor is part of terms and conditions of the agreement. Only Registration Form Ex.R1 and price list & payment plan Ex.R2 is placed on record by the opposite party. 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) which shall be paid by opposite parties 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:
07.12.2018.
................................................
Nagender Singh Kadian, President
..........................................
Ved Pal Hooda, Member.
……………………………….
Saroj Bala Bohra, Member.
