DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Rekha Garg w/o Raj Kamal Garg r/o Shublaw Trading Company, SCF 1-C, Sector-1, Parwanoo, Distt. Solan (H.P).

                                                                                                                ---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.

---Opposite Parties.

BEFORE:    SHRI LAKSHMAN SHARMA                              PRESIDENT

                   SMT. MADHU MUTNEJA                          MEMBER

                   SHRI JASWINDER SINGH SIDHU           MEMBER

Argued by: Sh. Deepak Aggarwal, Adv. for the complainant

                        Sh. Munish Gupta, Adv. for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                              Smt. Rekha Garg has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following relief against the opposite parties :-

i)                   to refund the total amount of Rs.92,000/- alongwith interest @ 18% per annum from the date of deposit till realization;

ii)                 to pay compensation for mental agony and harassment and also for escalation of prices to the tune of Rs.50,000/-.

iii)              To pay Rs.11,000/- as costs of litigation.

2.                              In brief the case of the complainant is that the opposite parties floated a scheme for allotment of residential plots in the project known as Omaxe Parkwoods Baddi-II. The project was to be developed at a land situated in the revenue estate of village Chakka Baddi, Tehsil Naraingarh, District Solan (HP). The opposite parties projected that the said land shall be developed within a period of 15 months and further that it would be one of the best residential areas of the region.  According to the complainant, attracted by the promises and projections made by the opposite parties, she applied for allotment of a plot measuring 135 sq. mtrs. vide application (C-2).  She also deposited a sum of Rs.92,000/- on 21.11.2007 (C-3).  The opposite parties were required to develop the area by laying roads, water lines, sewer lines, electric lines and develop the external periphery area of the land including the project and the abovesaid activities were required to be carried out within 15 months. 

According to the complainant, she visited the spot and found that no activity was going on at the spot and the opposite parties miserably failed to develop the area.  Thus the opposite parties totally failed in their commitment and have failed to develop the land as per the projections made by them in the brochure and other advertisements.  It has further been pleaded by the complainant that despite having been approached a number of times and having written a number of letters, the opposite parties failed to assure the time limit for development of the area.  In these circumstances according to the complainant ultimately she alongwith some other allottees approached the opposite parties at their Chandigarh office and requested for refund of the amount deposited by them alongwith interest. The request was orally accepted by the representative of the opposite parties at the time of receiving the said request letters.  However, according to the complainant, the opposite parties thereafter became silent and did not respond to the letter.  Ultimately, the complainant issued a legal notice dated 9.6.2010 but to no effect.

                        In these circumstances the present complaint has been filed seeking the reliefs mentioned above.

3.                              The Opposite parties in their written reply by way of affidavit of Sh. Harsh Bhargav, its authorised representative, at the outset took preliminary objection with regard to jurisdiction. On merits, it has been pleaded that the project of the Opposite Parties is complete but the complainant failed to pay the installments in time despite various reminders. It has been denied that the Opposite Parties accepted the demand of refund or that the signatures of the complainant were obtained on some blank papers, rather the complainant sent undated request for cancellation of the plot as she was not in a position to pay the remaining amount. It has further been pleaded that the complainant never approached them and that after making the initial payment, she did not deposit/pay the remaining amount. It has been pleaded that as per the terms and conditions, the complainant is not entitled to any refund. It has further been pleaded that the complainant submitted the request for cancellation of plot but, as per clause (s) of the basic sale consideration, the earnest money which comes to be less than what the complainant had deposited, was liable to be forfeited. The remaining averments have been denied being wrong.  It has been pleaded that there is no deficiency in service on its part. 

                        In these circumstances, prayer for dismissal of the complaint has been made. 

4.                              We have heard the learned counsel for the parties and have gone through the documents on record.

5.                              From the basic terms and conditions (C-1) placed on record it is apparent that the opposite parties had agreed to develop the area within 15 months from the date of signing of the allotment letter/buyers agreement.  In the present case, the application for the allotment of the plot was made on 21.11.2007 and the sum of Rs.92,000/- was paid. Since then, according to the complainant, the opposite parties are sitting silently and no activity at the site has been made and the land has not been developed so far. 

6.                              On the other hand, the case of the opposite parties is that the land has been completely developed. However, this averment of the opposite parties is not supported by any documentary evidence.

7.                              Annexure C-4 is the receipt of the application dated 15.1.2009 whereby the complainant requested for refund of the amount.  However, instead of refunding the amount with interest, the opposite parties forfeited the amount deposited by the complainant by relying upon clause 6 of the basic terms and agreement, which reads as under :-

“6.        Timely payment of installments of basic sale price and allied charges pertaining to the Residential Plot is the essence of the terms of the booking/allotment.  However, in the event of breach of any of the terms and conditions of the allotment by the applicant, the allotment will be cancelled at the discretion of the Company and the earnest money together with any interest on installments due but unpaid and interest on delayed payments shall stand forfeited.  The balance amount shall be refundable to the applicant without any interest, after the said Residential Plot is allotted to some other intending applicant and after compliance of certain formalities by the applicant. The Company, however, in its absolute discretion may condone the delay by charging penal interest @ 18% p.a. for upto one month delay from the due date of payment and @ 24% p.a. thereafter on all outstanding dues from their respective due dates.”

From the bare perusal of this clause, reproduced above, it is apparent that the opposite parties can forfeit the earnest money in case the allotment is cancelled on account of breach of the terms and conditions of the allotment letter by the allottee.  However, in the present case, there is no such letter of cancellation on record nor has it been pleaded by the opposite parties that the allotment of the plot in question was ever cancelled.  In these circumstances, the earnest money could not be forfeited.  The opposite parties have even failed to place on record clause (s) of the basic sale consideration relied upon by them in the written statement. 

8.                              On the other hand, in the present case the facts are otherwise.  Despite the fact that a period of more than 4 ½ years has  lapsed since the application for allotment of the plot was submitted and payment of Rs.92,000/- was made, no development work has taken place at the spot as is evident from the affidavit of the complainant which is supported by the photographs of the spot.  On the other hand, as discussed above, the averment of the opposite parties is not supported by any documentary evidence.  The complainant cannot be made to wait for an indefinite period.  In such circumstances, the complainant has right to seek refund of the amount paid by her alongwith interest.  The complainant exercised this option and moved an application for refund of the amount. However, instead of refunding the amount to the complainant, the opposite parties forfeited the amount on the pretext that it is less than the earnest money of the plot.  To our mind, in the circumstances mentioned above, forfeiture of the amount is illegal and contrary to the basic terms and conditions.  Thus, the opposite parties are certainly deficient in service in forfeiting the amount deposited by the complainant

9.                              Faced with this situation, it was argued by the ld. Counsel for the opposite parties that this Forum does not have the territorial jurisdiction to entertain and decide this complaint.  According to the ld. Counsel, the plot in dispute is located at Baddi and the payment was received at New Delhi. So, according to the ld. Counsel, no cause of action accrued at Chandigarh and, therefore, this Forum has no jurisdiction.  This argument of the ld. Counsel for the opposite parties, to our mind, has no force.  Annexure C-4 is the document showing that the application for refund of the amount was received by the opposite parties at their Chandigarh office.  So, a part of cause of action accrued at Chandigarh and, therefore, this Forum has the jurisdiction to entertain and decide this complaint.

10.                         In view of the above discussion, the present complaint is allowed and the opposite parties are directed :-

                                                  i.                  to refund the amount of Rs.92.000/- to the complainant alongwith interest @ 9% from the date of deposit.

                                               ii.                  to pay Rs.7,000/- as costs of litigation.

11.                         This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(i) shall carry interest @18% per annum from the date of deposit till actual payment, besides payment of litigation costs.

12.                         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28.8.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER