Delhi

StateCommission

CC/1526/2018

KIRAN BALA - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

04 Dec 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :04.12.2019

Date of Decision :09.12.2019

COMPLAINT NO.1526/2018

In the matter of:

Kiran Bala,

W/o. Shri Rakesh Chander,

R/o. D-198 GF, Happy Homes,

Sector-15, Omaxe City Bahadurgarh

Haryana-124507. ………Complainant

 

Versus

 

Omaxe Ltd.,

7 Shopping Complex,

•  

New Delhi-110019.……..Opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

 

JUDGEMENT

 

1. The complainant has come forward on the allegations that on 23.03.13 she purchased residential unit no.OHHB/Ground/198A for cost Rs.58,98,600/-. She started making payments of instalments as per schedule. She paid 95% of the total amount up to July, 2013 and remaining 5% was to be paid at the time of offer of possession. She had paid Rs.62 lakhs upto 30.06.14.
2. OP issued statement of account vide letter dated 13.03.14 and wrongly recovered Rs.1,79,400/- towards  advance enhanced external/ internal  development charges. Her application dated 22.03.18 to provide  State Government notification for charge EDC/IDC was turned down by the OP. The OP agreed not to charge EDC/ IDC in case of flat no.196 FF owned by Ms. Shikha Narang and Sudhir Narang, in case  of flat no.197 Ground Floor owned by Shri Sanjeiv Kumar and Shri Kishan Chand Verma, OP returned Rs.1,79,400/- by way of adjustment to Shri Sudhir Narang.
3. The possession  was to be delivered till September, 2013 but was delivered in August, 2014 after  a delay of 11 months. As per clause 32 (E) of the agreement, OP is liable to pay Rs.5/- per sq. ft. per month for super area as compensation for delayed possession. The sum  comes to Rs.1,13,520/-. OP has legally received interest of Rs.57,929/- under the disguise of delayed payment @18% p.a. for one month and 24% per annum beyond one month. Application dated 22.03.18 to waive of the same was turned down. OP charged Rs.40,000/- on 22.07.13 as club cost. OP is liable to pay damages and compensation of Rs.5 lakhs for wilful and intentional misconduct, deficiency in service, unfair trade practice and engaging the  complainant in court cases since 10.08.15.
4. She filed  complaint no.158/15 on 10.08.15 before District Consumer Forum, Jhajjar, Haryana which was decided in her favour on  27.10.16. In FA no.1284/16 the said order was set aside by State Commission, Haryana on the  ground that the matter was beyond pecuniary jurisdiction of  District Forum due to decision of three member bench of NC in Amrish Shukla. Thereafter she filed present complaint on 30.11.18. She has moved an application for condonation of delay of around 130 days in filing the complaint.
5. The  complainant  has prayed refund of Rs.1,79,400/- received by OP on account of EDC/ IDC charges, to pay penalty @5% per sq. ft. per month, to refund Rs.57,929- on account of interest. The total comes to Rs.3,50,849/-. She has sought interest on that amount @24% p.a. from 10.08.15 / the date of  filing complaint in District Forum, Jhajjar.  She has also claimed interest on Rs.40,000/- towards club cost and compensation of Rs.5 lakhs, litigation charges of Rs.1,50,000/-.
6. OP filed WS raising preliminary submission that the sale deed/ conveyance deed dated 20.08.14 has already been executed in favour of complainant. Complainant had given an undertaking dated 20.08.14 to the effect that she had no claim of whatsoever nature against  the OP after taking possession of the flat in question. OP has taken preliminary objection  that complainant is no longer a consumer as has been held by this Commission in FA no.178/10 titled as Vandana Aggarwal vs. Mahagun developer ltd. decided on 16.09.10. The said order has been affirmed by NC in R.P. no.4711/10 tilted as Vandanaa Aggarwal vs.  Mahagun Developers Ltd decided on 11.09.12. The claim of the complainant is barred by estoppel. The EDC/ IDC interest and club housing charges were charged in terms of application form dated 03.01.12 and agreement dated 23.02.12. No clause of action has accrued for filing the complaint. The complaint is barred by limitation. The complainant is trying to take advantage of her own wrong. This Commission has no pecuniary jurisdiction as the  relief claimed by the complainant is less than Rs.20 lakhs. This Commission has no territorial jurisdiction as the property is situated in jurisdiction of District Forum, Jhajjar. On merits the OP took the same plea.
7. The complainant has filed rejoinder and her own affidavit in evidence.
8. I have gone through the material on record and heard arguments on objection of the OP regarding complainant not being a consumer. Admittedly the complainant has received possession and got conveyance deed registered in her favour. Not only this she has given an undertaking of the same date on which conveyance  deed was registered that she was left with no right or title. The OP has rightly relied upon decision of this Commission and National Commission in Vandana Aggarwal vs. Mahagun supra. Apart from that similar view has been taken by NC in T.K.A. Padmanabhan vs. Abhiyan CGHS Ltd. II (2016) CPJ 273.
9. In that view of the matter I am not entering into the controversy regarding condonation of delay in filing the complaint. The complaint is dismissed. However the complainant will be at liberty to seek her remedy in Civil Court  after excluding the period spent in consumer proceedings as per decision of Hon’ble Supreme Court  in Laxmi Engg Works vs. P.S.G. Industrial Institute 1995 SCC (3) 583.
10.   Copy of the order be sent to both the parties free of cost.
11.   File be consigned to record room.

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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