BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Kamal Garg, House No.3112, Sector 28, Chandigarh.

                                                                   …..Complainant

                                      V E R S U S

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,

                   ……Opposite Parties

CORAM:     SH.P.D.GOEL                                                   PRESIDENT

                   SH.RAJINDER SINGH GILL                                  MEMBER

DR.(MRS.) MADANJIT KAUR SAHOTA               MEMBER

Argued by:     Sh.Deepak Aggarwal, Counsel for complainant.

                          Sh.Munish Gupta,  Counsel for Ops.

PER P.D. GOEL, PRESIDENT

1.                Briefly stated, the facts of the case are that the OPs floated a scheme for allotment of residential plots in the project “Omaxe Parkwoods, Baddi-II” to be developed and constructed by the Ops within a period of 15 months. The complainant got attracted by the promises and projections made by the OPs. The OPs made an offer for allotment of plot bearing No.184, measuring 100 sq. mts @ 6700/- per sq. mtr. The complainant made an investment of Rs.1,99,000/- with the OPs. It has been further stated that the complainant submitted application - Annexure C-2 with the OPs on 21.11.2007 and also deposited a sum of Rs. 67,000/- through cheque no. 666306 drawn on HDFC Bank dated 21.11.2007 but the OPs totally failed to develop the project, despite of repeated requests. The complainant visited the office of OPs on 15.1.2009 and requested for refund of his entire amount along with interest @ 18% p.a.. The OPs acceded to his request and agreed to refund the entire amount along with interest @ 6% p.a. as per Clause 16 of the basic terms and conditions of the agreement. The application forms in original and original receipts were also submitted by the complainant. When he requested for refund of his amount, the Ops obtained the signatures of the complainant on some blank documents and also on the affidavits. 

                   It has been further stated that vide letter dated 17.5.2010, the OPs illegally and unilaterally forfeited a total amount of Rs.66,030/- from the deposit made by the complainant. It has been further stated that the OPs neither supplied the allotment letter, nor the buyer’s agreement on their company’s standard format nor the contents whereof have been read over and explained to the complainant. So, there is no question of default in making payments as per payment schedule, which has not been supplied to him till date. The complainant sent notice dated 9.6.2010 to the Ops but to no avail. It has been further stated that the complainant made the payments as per the demands raised by OPs. The OPs were under obligation to provide internal services within the peripheral limits of the colony  i.e. roads, water lines, sewer lines,  electric lines and external services such as water, sewer, storm water drains, roads, electricity, horticulture etc. The OPs also promised to provide certain amenities i.e. community buildings in the colony and common facilities as mentioned in their brochures but till date nothing had been done and without those facilities and amenities, the complainant is unable to construct the house on the land within the stipulated period. It has been further stated that till date, the Ops failed to obtain the completion certificate from the competent authority, proper electricity connection from the Electricity Department, No Objection Certificate from the various Government Authorities and also failed to complete the internal development work. The complainant visited the office of the Ops numerous times but to no avail. Hence, this complaint.

2.                OPs filed the reply. The preliminary objection with regard to jurisdiction was raised. On merits, it has been pleaded that the project of the Ops is complete but the complainant failed to pay the installments in time despite various reminders. It has been denied that the Ops accepted the demand of refund. It has been denied that the signatures of the complainant were obtained on some blank papers, rather the complainant himself sent undated request for cancellation of the plot as he was not in a position to pay the remaining amount.

                   It has been further pleaded that the complainant is not entitled to any refund as per the terms and conditions. It is admitted that the complainant submitted the request for cancellation of plot. 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. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on its part and prayer for dismissal of the complaint with exemplary costs has been made. 

3.                Parties led evidence in support of their contentions.

4.                We have heard the learned Counsel for the parties and have also perused the record. 

5.                Admittedly, OPs floated a Scheme for allotment of residential plots in the project named (OMAXE PARKWOODS, BADDI-II) to be developed and constructed by the OPs within the period of 15 months, per basic terms and conditions (Annexure C-1) issued by OPs. The OPs made an offer to the complainant for allotment of plot No.184, measuring total area of 100 sq. mts. @ 6700/- per sq. mtr. to which he agreed and made an investment of a total sum of Rs.1,99,000/- with the OPs.

6.                The allegations of the complainant is that OPs have failed to honour their commitment as they could not develop the land by raising construction over it, so he made a request for refund of the entire deposited amount on 15.01.2009. However, OPs accepted the request of the complainant and agreed to refund the entire amount deposited by him along with 6% interest p.a., per clause 16 of the basic terms and conditions of the agreement. It is the grouse of the complainant that despite several reminders, Ops failed to refund the entire amount.

7.                Now the only dispute between the parties to the lis is whether OPs have illegally forfeited a sum of Rs.66,330/-. The answer to this is in negative.

8.                The complainant has produced on record the basic terms and conditions of the agreement. The condition no.5 of the basic terms and conditions states that the applicant agrees that the amount paid with application and in installment as the case may be to the extent of 10% of the basic sale price consideration of the residential plot shall collectively constitute the earnest money.

9.                Clause 6 of the basic terms and conditions further makes it clear that 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.

10.              Annexure R-1 is the intimation of due installments, in which, it has been mentioned that the complainant has opted for “Time Linked Payment Plan”. It is the case of the complainant that the OPs could not develop the land and no development has taken place, so he made a request for refund of his entire amount on 15.01.2009. Admittedly, the complainant has only paid an amount of Rs.1,99,000/- and, thereafter, he did not make the payment, therefore, the OPs had every right to cancel the plot in view of clauses No.5 and 6 of the basic terms and conditions of the agreement and also to forfeit the 10% of the earnest money.

11.              Admittedly, the complainant did not make the payment of the installments as per the intimation due installment and had only made the payment of Rs.1,99,000/- and, therefore, he had committed the breach of the basic terms and conditions (Annexure C-1), so, OPs are only liable to refund the balance amount after deducting the 10% amount from the earnest money.

12.              Admittedly, as per Annexure R-1, the basic price of the unit is Rs.6,63,300/- and its 10% comes to  Rs.66,330/-. Annexure C-5 is the letter dated 17.5.2010 vide which the allotment of the plot in question was cancelled by the Ops due to persistent default in payment by the complainant and Rs.66,330/- had been forfeited and Ops agreed to refund the balance amount as per the terms of the allotment.

13.              Learned counsel for the OPs raised the plea that this Forum has no jurisdiction to entertain and try the present complaint. This argument has no force in view of the fact that the Branch Office of the OPs is situated at Chandigarh and even some correspondence also took place between the parties at Chandigarh. Annexure R-2 is the intimation of due installment by Iqbal Singh, Branch Head Commercial from Chandigarh office to the complainant informing him to deposit the due installments.  Hence, this Forum has eminent jurisdiction to entertain and try the present complaint.

14.              It has already been held that as per terms and conditions Nos.5 and 6 of Annexure C-1, the OPs have a right to forfeit 10% of the earnest money, therefore, the complainant is entitled only for Rs.1,32,670/- .

15.              As a result of the above discussion, this complaint is accepted and OPs are directed to refund Rs.1,32,670/-(Rs.1,99,000/- - Rs.66,330/-) to the complainant along with interest @ 12% p.a. from the date of its deposit till realization along with Rs.10,000/- as costs of litigation.

16.               This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which OPs shall be liable to pay penal interest @ 15% p.a. on the awarded amount from the date of deposit till realization besides Rs.10,000/- as litigation costs.

17.              Certified copies of this order be sent to the parties free of charge. The file be consigned.