Chandigarh

StateCommission

A/211/2015

Rajesh Makanwal - Complainant(s)

Versus

Omaxe Limited - Opp.Party(s)

Deepak Aggarwal,Adv.

12 Oct 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	211 of 2015
Date of Institution	01.09.2015
Date of Decision	12.10.2015

 

Rajesh Makanwal son of Sh.B.S.Makanwal, resident of House No.168, Old Housing Board Colony, Phase-I, Baddi (H.P.).

Permanent address of the complainant Village Lower Maken, Post Office Ootpur, Tehsil Lad Bharol, District Mandi (HP).                                                                                                                                                                                                               …..Appellant/Complainant.

                                Versus

1.   Omaxe Limited, Omaxe House 7, Local Shopping Centre, Kalkaji, New Delhi – 110019, through its Director.

2.   Branch Manager, Omaxe Limited, 143 and 144, First Floor, Madhya Marg, Sector 8-C, Chandigarh – 160018.

                                        …..Respondents/Opposite Parties.

BEFORE:    JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Deepak Aggarwal, Advocate for the appellant.

Sh.Vansh Malhotra, Advocate for the respondents.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 29.05.2015, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (in short the Forum), vide which, it allowed Consumer Complaint bearing No.282 of 2014, filed by the complainant, with the following directions:-

“21.     In the light of above observations, the present complaint of the Complainant deserves to be allowed against the Opposite Parties, and the same is accordingly allowed, qua them, jointly and severally. The Opposite Parties are directed to:-

[a]  To refund the deposited amount of Rs.6,82,718/- along with interest @9% p.a. from the date of their respective deposits, till it is paid; 

                     [b]  To pay compensation of Rs.50,000/- on                       account of deficiency in service and also for                    the unfair trade practice resorted to by                                them; 

                    [C] To pay Rs.10,000/- as cost of litigation;

The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] & [b] of para above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid.” 

2.             The facts, in brief, are that  the Opposite Parties floated the scheme for allotment of residential plots in their project namely “Omaxe Parkwoods, Baddi-II”, to be constructed and developed in Revenue Estates of Village Chakkan Baddi, Tehsil Nalagarh, District Solan (H.P). The complainant was attracted by the promises and projections made by the Opposite Parties and, as such, he approached them for booking of the plot. At that point of time, it was brought to the notice of the complainant by Opposite Party No.2 that one Sh.R.B.Singh, who had already been allotted provisional allotment of Plot No.191 (Annexure C-1) having area of approximately 99.00 sq. mtr. in their township, wanted to sell the same and if he wanted to purchase the same, that could be done by the services of the Opposite Parties.  It was also told that the said R.B.Singh had already deposited a total sum of Rs.67000/- through cheque on 21.11.2007 (Annexure C-2). Thereafter, on 25.07.2008, the Opposite Parties took a total sum of Rs.1,32,660/- on account of due installment from the present complainant and further a total sum of Rs.2387/- on account of interest charged due to delayed payment vide acknowledgment receipt (Annexure C-3 and C-4).  Further, vide letter dated 25.07.2008 (Annexure C-5) the Opposite Parties transferred plot No.191, in question, to Sh.Rajesh Makanwal, complainant. It was stated that the complainant booked the plot with the Opposite Parties because he was not having any property anywhere in India and was living in rental accommodation. The said plot was purchased by the complainant exclusively for residential purposes of himself and his family.  The complainant persisted the Opposite Parties to execute Plot Buyer Agreement but they did not do so. 

3.             It was averred that in order to avail loan facility, the complainant was issued permission to mortgage the plot, in question, through the services of the Opposite Parties to IDBI Bank Limited (Annexure C-6) and, thereafter, Tripartite Agreement dated 19.09.2008 was executed between Omaxe, complainant and IDBI Bank (Annexure C-7).  Thereafter, the complainant after availing of finance facility from IDBI Bank, paid a total sum of Rs.3,97,700/- to the Opposite Parties vide receipt (Annexure C-8).  However, the Opposite Parties, even after executing Tri-partite Agreement, did not enter into Plot Buyer Agreement with the complainant and after much persuasion, ultimately on 28.02.2009, the Plot Buyer Agreement was executed between the parties (Annexure C-9).  As per Condition No.25A of the Agreement, the Opposite Parties shall offer in writing to the buyers to take over, occupy and use the said plot within 15 months from the date of signing of the Agreement.  It was averred that the terms and conditions of the Agreement were never brought to the notice of the complainant, when he paid the amounts to the Opposite Parties on 25.07.2008 and, thereafter, on 30.09.2008 but only when Agreement was executed between the parties. Thereafter, the complainant repaid the entire loan amount to the IDBI Bank (Annexure C-10). It was further averred that the Opposite Parties vide letter dated 07.05.2010 (Annexure C-11) informed the complainant that development of the project is on the verge of completion and also sent alongwith it statement of account, thereby raising demand of Rs.85,358/-.  Further, the Opposite Parties on 07.05.2010 (Annexure C-12) informed the complainant that in pursuance of provisions of the Agreement, the Company nominated the maintenance agency “M/s Shanvi Estate Management Service (P) Ltd.”, to provide necessary maintenance service in the project, which otherwise could have been handed over only on completion of the project. The complainant left with no other alternative, had to deposit a total sum of Rs.85,358/- on 19.05.2010 under constrained circumstances.

4.             It was pleaded that the Opposite Parties after much harassment to the complainant issued NOC (Annexure C-14).  However, the Opposite Parties on 30.12.2013 vide email (Annexure C-15) showed their inability to get the registry of the plot done.  It was further stated that the complainant had to suffer a lot of harassment at the hands of the Opposite Parties and till date, they were not in possession of Completion Certificate of the development works issued by the competent authority, as the project was not complete in all respects.  It was submitted that the Opposite Parties failed to complete the development work in their project.  Therefore, the complainant left with no other alternative, visited the Opposite Parties, at Chandigarh, in May, 2014 and requested for refund of the amount with interest, but the same was denied.  It was further pleaded that the Opposite Parties neither gave the possession till date nor refunded the amount of the complainant.  Therefore, the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

5.             In their written statement, the Opposite Parties, stated that the complainant alongwith Sh.R.B.Singh approached them for assignment of rights in his favour.  It was admitted that the Agreement was executed between the parties on 28.02.2009. It was denied that any provision of HIMUDA Act, 2005 had been violated.  It was pleaded that upon request, the permission to mortgage dated 17.09.2008 was forthwith granted.   It was averred that the delay in entering into Agreement was on the part of the complainant, as he did not come forward to execute the same and despite sending of Agreement in duplicate to him, the same was lying with him for months altogether and it was only on his supplying the signed copy of Agreement on 28.02.2009, the same was forthwith executed from the side of the Opposite Parties.  It was admitted that the complainant deposited Rs.85,358/-.  However, it was denied that other charges paid by the complainant were illegally charged.  NOC was issued forthwith upon the demand.  It was further pleaded that the complainant submitted the documents for registration of the sale deed on 27.10.2013 and since some formalities were required to be completed by the Authorities, he was informed vide email dated 30.12.2013 to wait for another 15 days. However, vide receipt of the letter dated 18.02.2014, the complainant did not come forward to get the sale deed executed and instead filed the complaint.  It was further stated that the project of the Opposite Parties is complete. Therefore, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

6.             The parties led evidence, in support of their case.

7.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above. 

8.             Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

9.             We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

10.            The Counsel for the appellant/complainant submitted that the complainant contacted the Opposite Parties several times for registration of sale deed but every time they cheated him and called him from Kampala Uganda, where he was working as Plant Manager with Rene Industries Ltd. and on consecutive occasions, he had to come from Uganda to India for the purpose of registration but every time they put off the matter on one pretext or the other.  He further submitted that the complainant had placed on record a certificate issued by the landlord (Annexure C-17), wherein, he certified that the complainant was his tenant. He further submitted that possession of the unit, in question, was to be offered by the Opposite Parties uptill 24.10.2009 and the complete possession, after obtaining of Completion Certificate from the competent authority, after completion of development works, had never been offered to him, as such, there was delay of approximately 5 years 10 months. He further submitted that the complainant paid huge rent and if the possession would have been delivered on time to him, in that eventuality, he would not have paid the rent to the landlord. He has relied upon the judgment passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Subhash Chander Mahajan & Anr. Abhishek Kumar Dwivedi Vs. Parsvnath Developers Ltd., II (2014) CPJ 719 (NC) and prayed that the interest, compensation and litigation expenses awarded by the Forum is meagre and on the lower side and, therefore, prayed for modifying the impugned order and enhancement of the award granted by the Forum.

11.            The Counsel for the respondents/Opposite Parties admitted regarding the purchase of the unit from Sh.R.B.Singh and deposit of the amount of Rs.6,82,718/-. He submitted that there was no fault on the part of the Opposite Parties for delay in entering into Agreement because the said delay was on the part of the complainant. He further prayed for dismissal of the appeal filed by the complainant because he failed to give any solid ground for enhancement of interest, compensation and litigation expenses.

12.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties,  and the evidence, on record, we are of the considered opinion, that the appeal is liable to be partly allowed, for the reasons, to be recorded, hereinafter.

13.            The core question that falls for consideration before us is whether the appellant/complainant is entitled for enhancement of interest, compensation and litigation expenses, as awarded by the Forum. The answer, to this question, is in the affirmative. It is proved from Annexure C-1 that the Opposite Parties allotted plot No.191, having area of approximately 99.00 sq. mtr. in their residential township project named as “Omaxe Parkwoods Baddi – II” to Sh.R.B.Singh (previous allottee) vide provisional allotment letter dated 05.03.2008 and Sh.R.B.Singh also deposited an amount of Rs.67,000/- vide receipt dated 29.11.2007 (Annexure C-2). According to the complainant, when he wanted to buy the plot, the Opposite Parties asked him that one Sh.R.B.Singh wants to sell the plot and, as such, he was ready to purchase the same. Annexure C-3 and C-4 are copies of receipts dated 25.07.2008. From these documents, it is proved that the complainant deposited the amount of Rs.1,32,660/- and Rs.2387/-. Annexure C-5 is a copy of the letter dated 25.07.2008. From this document, it is proved that plot No.191 was transferred in the name of the complainant (Rajesh Makanwal).  Annexure C-6 is a copy of letter dated 17.09.2008. From this document, it is proved that permission was granted by the Chandigarh Branch of Omaxe Limited to mortgage the plot, in question, to IDBI Bank Ltd.  in order to raise the loan facility to purchase the aforesaid plot. Thereafter, Tripartite Agreement (Annexure C-7) was also executed between M/s Omaxe Ltd., Sh.Rajesh Makanwal and IDBI Bank Ltd. on 19.09.2008, at Chandigarh. It is also proved from the receipt dated 30.09.2008 (Annexure C-8) that the complainant deposited the amount of Rs.3,97,700/-. It is also proved from Annexure C-9 that the Agreement  was also executed between M/s Omaxe Ltd. and Mr.Rajesh Makanwal on 28.02.2009. According to the complainant, the Opposite Parties also assured that the area, where the aforesaid project is being floated, would be fully developed within the period of 15 months, as is evident from Annexure C-9. Annexure C-10 is a copy of the letter dated 15.05.2009, which was issued by the IDBI Bank to the complainant, regarding closure of his housing loan and confirming the repayment of entire loan amount of Rs.5 lacs. It is stipulated from Statement of Account (Annexure C-11), at page No.60 of the Forum file, that the Opposite Parties received an amount of Rs.5,97,360/- and demanded another amount of Rs.85,358/-. According to the complainant, the said amount of Rs.85,358/- was also paid by him and, as such, he paid the total amount of Rs.6,82,718/-.

14.           Moreover, the allegation of the Opposite Parties has been denied that the complainant did not come forward to execute the Agreement or that the Agreement, in duplicate, was sent to him or the same is lying with him. In his rebuttal affidavit, the complainant has specifically stated that on 28.02.2009 he visited the office of the Opposite Parties and when he persisted for execution of the Agreement and threatened them that if Agreement was not executed forthwith he would be withdrawing from their project and only in those circumstances, the Agreement was entered into between the parties. The plea of the Opposite Parties that the terms and conditions were in the knowledge of the complainant at the time of execution of the contract, has no force, at all, because the terms and conditions came to the knowledge of the complainant only when the Agreement dated 28.02.2009 was executed between the parties and not prior to that. It has been revealed from the record of the Forum that no such effort/offer, as agreed in Clause 25(a) of the Agreement, was so made by the Opposite Parties to the complainant to take over, occupy and use the said plot at any point of time.  In para No.3 of their written statement, the Opposite Parties stated that the possession of the property, in dispute, had been already offered to the complainant and even he had been informed regarding process of registration of sale deed but he did not come forward to get the sale deed executed. The complainant in his rebuttal affidavit, has denied the version of the Opposite Parties and stated that the possession being offered is only a paper possession without completion of development works and without any completion certificate issued by the Competent Authority. Even the Opposite Parties failed to place on record any Completion Certificate, which could prove that the project, in question, is complete in all respects.

15.            The Opposite Parties vide letter dated 07.05.2010 (Annexure C-12) informed the complainant that the Company nominated the maintenance agency “M/s Shanvi Estate Management Service (P) Ltd.” to provide necessary maintenance service in their project, for which, he deposited a sum of Rs.85,358/- on 19.05.2010 in constrained circumstances. The complainant brought to the notice that as per Condition No.29-A, the maintenance of the project could be handed over to the maintenance agency only after completion of the project. However, the Opposite Parties charged the aforesaid amount without giving actual, physical vacant possession complete in all respects.   The complainant also placed on record copy of the email dated 30.12.2013 (Annexure C-15), which was sent by the Opposite Parties, to the complainant, which reads as under :-

“We regret for the delay on account of registry, the document forwarded by you have been received by us. The company is in process of coordinating with concerned authorities for registries purpose, since the hierarchy for approval is at multiple levels in Himachal Pradesh, hence it is taking some time. We request to hold patience for some time and we will get the registry of your unit done at the earliest. For the same, we will inform you 15-30 days prior so that you can schedule your visit accordingly. The wait time if so long is more or less over and we assure you that we will get the needful done at the earliest”.

The afore-extracted email clearly point out gross deficiency in service rendered by the Opposite Parties, who despite receipt of the whole consideration amount, in the year 2010, failed to abide by the terms and conditions of the Agreement, in order to finalize the deed, in question, as agreed.

16.            It is clearly proved that the Opposite Parties failed to deliver or even offered possession of the plot, complete in all respects, within the stipulated period of 15 months, as incorporated in the Agreement and when the complainant sought for refund of the amount, they failed to refund the same.  According to the complainant, the Opposite Parties failed to complete the internal development works and obtained the Completion Certificate from the competent authority, what to talk of external developments. As per the complainant, the proper electricity connection had not been issued by the Electricity Department and the Opposite Parties had not obtained No Objection Certificate from the various Government Authorities, which was one of the requirements before obtaining completion certificate for internal developments. Therefore, the complainant suffered a lot at the hands of the Opposite Parties because on consecutive occasions, the complainant had to come from Uganda, where he is working as Plant Manager with Rene Industries Limited, to India for the purpose of registration but every time they put off the matter on one pretext or the other. To prove this fact, he has also placed on record copies of the invoices (Annexure C-18 Colly.), vide which air tickets were booked to and fro Uganda to India and India to Uganda. Not only this, the complainant has also placed on record Annexure C-17 i.e. Certificate issued by his landlord, wherein, it was clearly certified that Mr.Rajesh Makanwal & Mrs. Ritu Thakur were his tenants and paid the rent of Rs.5,000/- from 01.07.2006 to 30.04.2014. Further, after the said period, the appellant/complainant entered into Rent Agreement dated 05.05.2014 (Annexure C-16) with one Vivek Mittal, who is owner of H.No.402, Tower P, Parkwood Glade, Sector 116, SAS Nagar, Mohali, Punjab and paid rent @Rs.10,000/- per month and the tenancy commenced w.e.f. 05.05.2014 for a period of 11 months.  If the possession would have been delivered on time to the complainant, in that eventuality, he could not have paid the aforesaid rents to the landlord. Even the possession of the unit, in question, was to be offered by the Opposite Parties uptill 24.10.2009 and complete possession after obtaining of completion certificate from the competent authority after completion of the development works had never been offered to him and, as such, there is a delay of approximately 5 years and 10 months. The Forum rightly held that the complainant cannot be forced to wait for the delivery of possession for an unlimited period. Even the Opposite Parties kept the hard earned money of the complainant with them and earning interest on the same and when he requested for refund of the amount, they failed to refund the same, which amounted to deficiency in service and indulged into unfair trade practice. So, we are of the considered opinion that the judgment cited by the Counsel for the appellant Subhash Chander Mahajan & Anr. Abhishek Kumar Dwivedi Vs. Parsvnath Developers Ltd. (supra) is fully applicable to the facts of the present case and, as such, the interest, compensation and litigation expenses awarded by the Forum is on the lower side and liable to be enhanced. 

17.            For the reasons recorded above, the appeal is partly accepted. The order of the Forum is modified, in the following manner:-

[a]  The respondents/Opposite Parties are directed to refund the deposited amount of Rs.6,82,718/- along with interest @15% p.a. instead of @9% p.a., as awarded by the Forum, from the date of their respective deposits, till it is paid. 

 [b]  The respondents/Opposite Parties are directed to pay compensation of Rs.1,50,000/- instead of Rs.50,000/-, as awarded by the Forum, on account of deficiency in service and also for the unfair trade practice resorted to by them. 

[c] The respondents/Opposite Parties are directed to pay Rs.20,000/- instead of Rs.10,000/-, as awarded by the Forum, towards cost of litigation.

[d] The aforesaid order shall be complied within 45 days of its receipt by the Opposite Parties, thereafter, they shall be liable for an interest @18% per annum instead of @12% per annum, as awarded by the Forum, on the amount mentioned aforesaid in sub-para [a] & [b], apart from cost of litigation of Rs.20,000/-, from the date of filing the complaint, before the Forum, till it is paid. 

18.            Certified Copies of this order be sent to the parties, free of charge.

19.            The file be consigned to Record Room, after completion.

Pronounced.                                         

October 12, 2015.                                                                                                       Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER 

 

Sd/-

                                           (PADMA PANDEY)

      MEMBER