Haryana

StateCommission

CC/291/2017

ANJALI VERMANI - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

13 Dec 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.291 of  2017

Date of the Institution:09.05.2017

Date of Decision: 13.12.2019

 

1. Anjali Vermani W/o Adarsh Kumar Vermani, R/o 303, GH-34, Sector 20, Panchkula.
2. Mohinder Pal Dogra S/o Shri R.P.Dogra, r/o H.No.668, Phase VI, Mohali (Punjab).

                                                                   .….Complainants

Versus

Omaxe Limited (formerly Omaxe Construction Limited), Company Registered Office at 7, Local Shopping Centre, Kalkaji, New Delhi-110019, through its Chairman/authorized representative.

                                                .….Opposite Party

CORAM:   Hon’ble Mr. Justice T.P.S Mann, President.

Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Aftab Singh Khara,  Advocate for complainants.

Mr.M.S.Gill proxy counsel for Mr.Munish Gupta, Advocate counsel for opposite party.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that complainants booked a commercial plot having an area of 170.57 square meters (204) square yards) with Omaxe Limited (developer)-opposite party. The plot was booked for earning livelihood for themselves by means of self-employment. We were allotted plot bearing No.160, Block/Sector No.B, Omaxe City, Sonepat. The basic price of the plot was Rs.47,94,000/-. In total, the complainants had paid  an amount of Rs.51,87,720/- to the opposite party. On 07.07.2008, the buyer agreement was executed between the parties. As per clause 25 (a) of the agreement, the possession of the plot was to be delivered within 12 months (within an extended period of 06 months) from the date of signing the agreement that is on or before 06.01.2010, but, O.Ps. failed to deliver the possession of the plot.   They requested the O.P. to refund the deposited amount alongwith interest, but, O.P. failed to refund the deposited amount. Thus there was deficiency in service on the part of the O.P.

2.                Notice of the complaint was issued against the O.P. and the reply was filed, wherein the complainants have not paid the entire dues. The complainants purchased the commercial plot for only investment. The averment made regarding earning of livelihood was totally without any basis. The complainants did not follow the payment schedule. The complainants themselves withdrawing from the allotment, they were not entitled to any interest on the deposited amount. Thus there was no deficiency in service on the part of the O.P.  Preliminary objections about the pecuniary jurisdiction, territorial jurisdiction,, suppression of material facts, complainants are not consumers etc. were also raised and requested to dismiss the complaint.

3.                When the complaint was posted for recording evidence of the parties, the complainant-Mohinder Pal Dogra-CW-1in his evidence has tendered the affidavit Ex.CW1/A vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-11 and closed his evidence.

4.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.P. had also tendered the affidavit Ex.OPW1/A that of Mr. Deepanjit Singh, Authorized representative and also tendered documents Ex.OP-1 and  closed its evidence.

5.                The arguments have been advanced by Sh.Aftab Singh Khara, the learned counsel for the complainants as well as Sh.M.S.Gill proxy counsel for Mr.Munish Gupta, the learned counsel for the opposite party.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainants are entitled to get refund of the amount which they have already deposited alongwith the interest? 

7.                While unfolding the arguments it has been argued by A.S.Khara, the learned counsel for the complainants that as far as the executing the buyers agreement (Ex.C-1) is concerned it is not in dispute.  It is also not in dispute that the basic price of the plot was Rs.47,94,000/-.  It is also not in dispute that vide receipts Ex.C-2 to C-5  and Ex.C-8 total sum of Rs.51,87,720/-/- had been paid by the complainant to the  O.P.  As per the buyers agreement (EX.C-1) and the terms and conditions incorporated therein including date of delivery of the possession of the plot, the possession complete in all respect was to be delivered to the complainants by the O.P. on or before 06.01.2010, which includes six months grace period.  However inspite of the fact that total amount stands paid. The period within which, the possession of the plot was to be delivered had already expired and under these circumstances the complainants had no other option, but, to seek the refund of the amount, which they had already paid alongwith interest. 

10.              On the other hand, it has been argued by Sh.M.S.Gill proxy counsel for Mr. Munish Gupta, the learned counsel for the O.P. that the amount which the complainants had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  It is true that the documents were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the plot, for payment of the installments, charging the interest for delayed payment and delivering of possession which includes six months grace period.  Since there were a unavoidable circumstances and there was certain reasons which were beyond the control of the O.P., the possession of the plot could not be delivered to the complainants in time.  However on one pretext or the other the possession was not taken and now by taking the shelter of this Commission, the complainants seeks refund of the amount and infact this amount has already been invested in making all developmental activities.  Thus, the complainant was not entitled for the refund. 

11.              In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builder, plot was booked by the complainants for which total amount of Rs.51,87,720/-  (Fifty One Lakh Eighty Seven Thousand Seven Hundred And Twenty) had been paid as is evident by the receipts Ex.C-2 to C-5 and Ex.C-8.  It is also true that all the relevant documents were executed between the complainants with that of developers or O.P.  including the buyers agreement (Exhibit C-1).  As per delivery clause the possession of the plot, the possession was to be delivered within period of 12 months complete in all respects and even grace period of six months was also available to the developer-O.P.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 10 years had expired, the possession of the plot has not been delivered by O.P.    As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P.  It is the normal trend of the developers/O.P. that they would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case.  When the project is not complete as such, this Commission is of the considered opinion that the complainants are well within their legal rights to get the refund of the amount of Rs.51,87,720/- (Fifty One Lakh Eighty Seven Thousand Seven Hundred And Twenty) which they had already deposited with the O.P.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and the possession has not been delivered within  the stipulated period and under the constraint circumstances, the complainants had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the court had to deal with the developers/O.P. with severe hands who are misusing the funds of the investors and hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.51,87,720/- (Fifty One Lakh Eighty Seven Thousand Seven Hundred And Twenty) alongwith interest @ 09%  per annum from  the date of respective deposits and till realization.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period  of  three months, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period.   The complainants are also entitled  of Rs.50,000/- (Fifty Thousand Only)  for compensation of mental and physical agony.  In addition, the complainants are also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 25 and 27 of the C.P.Act  would also be attractable. 

 

13^th December, 2019       Ram Singh Chaudhary,             T.P.S.Mann,                                        Judicial Member                        President                                  

S.K.(Pvt.Secy)