U.T. CHANDIGARH

1.            Sh. Narinder Singh s/o Sh. Manjit Singh r/o H.No.3005, Sector 35D, Chandigarh.

2.            Smt. Mohinder Kaur d/o Sh. Karam Singh r/o H.No.3005, Sector 35D, Chandigarh.

                                   Complainant.

Versus

1.            Omaxe Limited through Sh. Rohtas Goel, Chairman & Managing Director, Registered & Corporate Office at Omaxe House, 7, LSC, Kalkaji, New Delhi-110019.

2.            Omaxe Limited through Sh. Ritesh Sehgal, General Manager, Regional Office at SCO no.143-144, First Floor, Sector 8, Chandigarh.

3.            Omaxe Limited through its Manager (Omaxe Parkwood, Baddi Project), Omaxe Chandigarh & Regional Office, SCO No.143-144, Sector 8, Chandigarh.

Opposite Parties.

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

Argued by:  Sh. Anuj Kohli, Counsel for complainants

                        Sh. Munish Gupta, Counsel for OPs.

PER RAJAN DEWAN, PRESIDENT

1.                      In brief, the case of the complainants is that lured by the rosy pictures painted by the executives of the opposite parties, they booked a 2 BHK flat No.304, 3^rd Floor, Type Alpha-I, in Green Tower-9, Super Area 116.13 sq.mt/1250 sq.ft. in the name of complainant No.2 and paid Rs.5,99,375/- (95% of the value of the flat/unit).  The opposite parties issued allotment letter dated 14.1.2006 and the complainants were assured that the flat/unit would be completed and delivered in 18 months.  However, in May 2008 when complainant No.2 approached the opposite parties, she was told that the construction of the flats could not be completed and the complainants were advised to get the flat transferred to another project i.e. “Omaxe Parkwoods, Baddi”. Accordingly, complainant No.1 submitted letter of conversion dated 26.5.2008 at the regional office of the opposite parties at Chandigarh which was duly received and flat No.222, Jacranda-B Tower on 2^nd Floor at Omaxe Parkwood, Baddi, with super area 66.24 sq.mt/713 sq. ft., was allotted in the name of complainant No.2 for which agreement dated 25.8.2008 was duly executed.  It has been averred that since the Parkwood Project was costlier, complainant No.2 was asked to deposit further amount for the flat, and after adjusting the previous amount the total amount paid by her came to Rs.10,95,460/-  as per receipts (C-3 to C-5) which was 95% of the sale price of the flat.  However, the opposite parties failed to hand over possession of even this flat and, therefore, in terms of the agreement, paid rent to complainant No.2 @ Rs.3,420/- per month till February, 2011, for the period of delay, but stopped to pay thereafter.  In the meantime, complainant No.2, being very old, requested the opposite parties to assign/transfer the flat in the name of her son (complainant No.1) but even the same was not done. 

According to the complainants, they visited the offices of the opposite parties at Delhi and Chandigarh, as well as the project site at Baddi, many times to know about the exact status but nobody informed them about the same.  The complainants also sent a letter dated 12.3.2012 (C-10 & C-11) to the opposite parties followed by legal notice dated 3.5.2012 (C-12 & C-13) but to no avail.  Alleging that the aforesaid acts of the opposite parties amount to deficiency in service and unfair trade practice, the present complaint has been filed.

2.                      In its written statement, by way of affidavit of its authorized representative, Sh. Harsh Bhargav,  opposite party No.1 did not dispute that Flat No.304 (3^rd floor) was provisionally allotted to complainant No.2 and that the complainant made the payment as per schedule.   It has been averred that complainant No.1, being subsequent purchaser, cannot raise any hue and cry regarding delay in delivery of possession.  It has been pleaded that the endorsements regarding transfer had already been made on all the documents and the flat stands transferred in his name.  It has been denied that complainant No.1 ever approached the office of the opposite parties.  It has been pleaded the project is on the verge of completion.  The remaining averments have been denied being wrong.  Pleading that there is no deficiency in service or unfair trade practice on its part, prayer for dismissal of the complaint has been made.

3.                      Opposite parties No.2 & 3 did not file their separate written reply.  However, on 22.2.2013, Sh. Munish Gupta, Counsel for opposite parties No.2 & 3, who was also appearing for opposite party No.1, gave a statement adopting the written reply filed by opposite party No.1.

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

5.                      Firstly, the ld. Counsel for the opposite parties has argued that this Forum has not got the jurisdiction to entertain and decide this complaint as no part of cause of action has arisen within its territorial jurisdiction.  However, a perusal of the letter dated 19.4.2013 (Annexure C-17) issued by Bank of India, reveals that the cheque, issued by complainant No.2 favouring Omaxe (opposite parties), was paid in local clearing.  Hence, we are of view that a part of cause of action has arisen within the territorial jurisdiction of this Forum and, therefore, this Forum does have the territorial jurisdiction to entertain and decide the complaint.

6.                      It has also been argued by the ld. Counsel for the opposite parties that complainant No.1, being a subsequent purchaser, cannot raise the present dispute.  However, they have not placed on record any document to prove that complainant No.2 sold the flat in question to complainant No.1.  In fact, they do not deny that complainant No.1 is the son of complainant No.2 and that she only sought for transfer of her rights, in the flat in question, in favour of her son.  In such circumstances, the complainant cannot be held to be a subsequent purchaser.  

7.                      Annexure C-1 is the agreement dated 25.8.2008 vide which Unit No.222, in Jacaranda-B Tower on second floor, having approximately super area of 66.24 sq. mtr./713 sq.ft., was sold to complainant No.2.  The opposite parties have not disputed that they received total amount of Rs.10,95,460/- from the complainants for the said unit.   

8.                      According to the complainants, as per clause 28(a) of the agreement, the opposite parties were to hand over possession of the flat within 18 months from the date of signing of the agreement.  However, despite making payment of approximately 95% of the total cost of the flat, they failed to hand over the possession.  It has been argued by the ld. Counsel for the complainants that the construction at the site is still far from being over and in this regard he has relied upon the photographs (Annexure C-19).

9.                      The opposite parties have not disputed the execution of the agreement with complainant No.2.  As per clause 28(a) of the agreement, the opposite parties were to complete the development/construction of the flat within 18 months from the date of signing the agreement or within extended period of six months, subject to force majeure conditions.  Clause 28(a) of the agreement reads as under :-

“28(a)       That the Company shall endeavor to complete the development/construction of the Flat within 18 months from the date of signing this agreement by the Buyer(s) or within an extended period of six months, subject to force majeure conditions [as mentioned in Clause (b) hereunder] and subject to other Flat Buyer(s) making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Flat to the Buyer(s).”

As per the afore-extracted clause, the period of 18 months expired on 25.2.2010.   If the opposite parties are given the benefit of extension of six months, even then the construction should have been complete by 25.8.2010.  However, in order to avail the said benefit, the opposite parties should have first pleaded and proved the force majeure conditions as mentioned in clause (b) of the said agreement, but they have miserably failed to do so.  The opposite parties have also not come forward with any concrete evidence to prove that the construction at the site is complete. Rather in sub para (xiii) of their reply by way of affidavit of Sh. Harsh Bhargav, dated 22.2.2013, it has been mentioned that “the project is at the verge of completion…...”.  Hence, it is proved beyond any doubt that till 22.2.2013 i.e. after a period of around three years more than the stipulated period of 18 months, the project at site was not complete.  Thus, the opposite parties are proved to be grossly negligent and deficient for the delay in the construction and handing over the possession of the flat in question to the complainants within the agreed time. 

10.                   It has been further argued by the ld. Counsel for the complainants that as per clause 28(e) of the agreement, in case of delay in construction, the opposite parties were to pay a sum @ Rs.5/- per sq. ft. of the super area per month, for the period of delay.  Clause 28(e) reads as under :-

“28(e)        However, in case of delay in construction of the said Apartment attributable to delay of Company subject to Clause (a) & (b) herein above, the Company would pay a sum at the rate of Rs.5/- (Rupees Five only) per sq. ft. of Super Area per month for the period of delay to the Buyer(s), provided however that the Buyer(s) has made payment of all installments towards the sale consideration amount of the said Apartment in time and without making any delay to the Company.”

According to the ld. Counsel, in compliance with afore-extracted clause 28(e), the opposite parties paid the cheques (copies of some of which are Annexure C-14) amounting to Rs.3,420/- only till February 2011 but they stopped thereafter.  The opposite parties have not given any explanation for not paying the amount of Rs.3,420/- per month after 28.2.2011.  It is also not their case that the complainants delayed/defaulted in making payment of any installment(s) to the opposite parties.  Thus, the opposite parties are bound to pay the said sum from March 2011 onwards.

11.                   As is clear from above, the opposite parties have not come forward with any document to prove that the construction at the site is complete even today.  In such circumstances, the complainants were justified in seeking refund of the amount paid alongwith compensation but the opposite parties failed to pay the same.

12.                   In view of the above discussion, we are of the opinion that the present complaint deserves to succeed and the same is accordingly allowed. The opposite parties are directed as under :-

i)             to refund the total deposited amount of Rs.10,95,460/- to the complainants with interest @ 9% per annum from the respective dates of deposit;

ii)           to pay an amount of Rs.3,420/- per month since March 2011, with interest @ 9% per annum from the date it was due, till the refund of the total deposited amount to the complainants.

iii)         to pay Rs.50,000/- as compensation for mental agony and harassment caused to the complainants;

iv)          to pay Rs.10,000/- as costs of litigation.

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

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

Announced

22.10.2013.

Sd/-

(RAJAN DEWAN)

PRESIDENT

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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DISTRICT CONSUMER FORUM-II

[Consumer Complaint No.413 of 2012]

ORDER

Present:    None.

                   As per detailed order of even date, recorded separately, this complaint has been allowed.  After compliance, file be consigned to the record room.