Delhi

StateCommission

CC/1233/2018

MR. SANJAY SHARMA & ANR. - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

10 Feb 2020

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 10.02.2020

Date of Decision : 25.02.2020

Complaint No.1233/2018

 

In the matter of :-

 

Mr. Sanjay Sharma & Mrs. Manisha Sharma,

R/o H.No.4/1, Sector-13,

R.K. Puram,

New Delhi-110066.                                                  ….........Complainant

 

Versus

 

OMAXE Ltd.

Corporate office at:

7, Local Shopping Centre,

Kalkaji, New Delhi-110019.                                              ….......... Opp. Party

                                                                

CORAM

 

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

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. Initially this case was filed in District Forum where it was registered as CC-206/16. The same was returned due to lack of pecuniary jurisdiction in view of decision of three members bench of Hon’ble National Commission in Ambrish Kumar Shukla vs Ferrous Infrastructure Private limited in CC/97/2016 decided on 07.10.2016.

 

2. The case of the complainant is that both complainants who are husband and wife booked flat on 27.07.2012 on cash down basis as the flat, were nearly ready and promissed early possession within a year at the time of booking verbally. They were supposed to pay 95% of the total amount within 45 days of booking. They made final payment on 13.02.2013 after battle on various issues with huge interest, penalty to the OP without default of complainants. The OP charged penalty @18% for first one month and thereafter 24% for delayed period.  The delay in making payment was not because of complainants but was because of disorganised and slack functioning of OP.

 

3. After paying the booking amount on 27.07.2012, complainants started process of securing bank loan.  They took the loan from LIC as recommended by Mr. Hariom/agent of OP.  Allotment letter was given on 22.09.2012. The loan was applied on 23.09.2012.  The loan was sanctioned but could not be disbursed as it was being given as construction linked plan.  Whereas the complainant wanted disbursement in one go as promised on cash down basis. The complainants request to count 45 days from the date of receipt of allotment letter to which OP did not pay any heed. OP counted the delay from the date of booking i.e. 27.07.2012 and for charging interest/penalty on its part, it was counting from the date of allotment letter.

 

4. As per para-23 (b) of the agreement, construction was to be completed within 18 months from the signing of allotment letter or within extended period of six months.  OP issued offer of possession vide letter dated 16.03.2016 i.e. after delay of nearly two years.  OP offered to pay penalty @Rs.5/- sq. ft. per month for delay which comes to return of 3.5% per annum. Service tax amount was adjusted from the payment already made by the complainants.

 

5. Offer of possession given by the OP is wrong because the flat is nowhere near completion. The other letter itself stated that finally possession would be after balance payment.  On visit on 09.04.2016 the complainant realised that still lot of work was pending such as internal electric work, sanitary fitments and accessories.  Though the internal plaster has been done still substantial amount of finishing work that needs to be carried out. Kitchen fitments have not been placed. Substantial work of the common areas (stairs, lift, entrance of the building) was still pending. The building with open stairs and ducts is dangerous for occupation. The porch at the back of the budding was having lot of building material lying.  Labour was staying in the building because of which the general look of the interiors of the flat has deteriorated. The labour had been using iron cots because of which extensive scratches have been made on the tiles on the floor which needed to be rectified. Major work were required for the common areas around the TULIP building. All this was conveyed to the OP vide mail dated 16.04.2016 alongwith photographs but there was no improvement.

 

6. The complainant asked for approved Layout Plan, copy of completion certificate and copy of Occupancy Certificate. OP had been insisting that all the said documents would be given at the time of registration of flat. There was an issue about not getting sanction for construction of the back row because of the proximity of the high tension wires passing very close to the building. Hence, this complaint for stopping offer of possession, first complete the list of pending work. Complainant sought directions to the OP to give documentary evidence of all statutory clearances from relevant authorities, to pay interest at the same rate (18% for first month of delay and 24% for subsequent months of delay) as has been charged by OP as per para-16 (d) of the agreement. Complainant prayed for calculation of all penalty amount @18% to 24% from 27.07.2012.  Holding charges of Rs.10/- sq.ft. per month should not be charged as flat was not ready for possession.

 

7. OP filed WS raising preliminary objections that it offered possession on 16.03.2016 alongwith statement of account.  Complainants were liable to pay Rs.2,54,148/-.  Instead of paying the said amount and taking possession, the complainants filed the present complaint to avoid making payment of admitted amount.  Clause 40 of the agreement provided for arbitration. District Forum had neither pecuniary jurisdiction nor territorial jurisdiction. The said property was situated beyond the territorial limitation of District Forum. The complainants were not consumer.  They were resident of R.K. Puram, New Delhi a posh colony of South Delhi.  They could have hardly considered to go and reside at Bhiwadi.  The complainants were investors for commercial purpose to earn profit but considering slow down in the Real Estate, apprehending not to earn expected profit, they tried to back down. It denied that complainants were promised for early possession within a year verbally or otherwise. It denied that complainants were entitled to compensation @18% to 24% per annum.  The OP pleaded that it has completed the project as per the approved plan and necessary sanction and all documents as may be required for registration. 

 

8. Complainant filed rejoinder and joint affidavit of both the complainants in evidence.

 

9. As compared to it, OP filed affidavit of Sh. Pawan Aggarwal, AR.
10. The complainant has filed written arguments.

 

11. OP also filed written arguments.

 

12. I have gone through the material on record and heard the arguments. After re-filing of the complaint in this Commission, the complainant requested that OP should be directed to file occupancy certificate. The request was allowed vide order dated 26.02.2019. On 03.05.2019 counsel for OP filed occupancy certificate.  On 16.07.2019 the AR of the complainant stated that occupancy certificate was not from any government authority. The same was from Architect. Counsel for OP filed copy of letter dated 20.04.2017 issued by Government authorising named Architect  to issue completion certificate.  The complainant sought time to verify the said letter.  At the same time he stated that he was not interested in possession after such a long delay. On the next date i.e. 10.02.2020 the complainant stated that he had verified the genuineness of occupancy certificate and he was willing to take possession provided OP paid reasonable penalty for delayed possession.

 

13. After arguments were heard, the complainant appeared and filed reply to written arguments of OP. He stated that the occupancy certificate was defective.  It was not completion certificate and so he was not ready to take possession. Accordingly to him the flat was not in habitable condition.

 

14. During arguments counsel for OP relied upon the Greater Bhiwadi Bhawan Regulations, 2013.  According to him clause 16 of the said regulations completion certificate is required only in building having height of more than 15 mtrs.  In case of building of less than 15 mtrs. height, completion certificate is required only when the constructed area is more than 5000 sq. mtrs. According to him the present building is less than 15 mtrs. height and constructed area is less than 5000 sq. mtrs. So no completion certificate is required.

 

15. Counsel for OP relied upon decision in Tamil Nadu Electricity Board Vs. N. Raju Reddiar AIR 1996 SC 2025 to make out that parties are bound by terms and conditions of the agreement. He also relied upon the decision in Secretary, Bhuvneswar Development Authority Vs. Susanta Kumar Mishra, V (2009) SLT 242 to make out that demand for any amount due in terms of unchallenged terms of agreement does not furnish cause of action to the allottee to approach Consumer Forum.

 

16. So far as the objection of arbitration clause is concerned, it is sufficient to mention here that remedy under Consumer Protection Act is in addition and not in derogation to other remedies.  It has been authoritatively held by Hon’ble Supreme Court in EMAAR GF Vs. Aftab Ahamad that arbitration clause is no bar I (2010) CPJ 5 SC.

 

17. As regards territorial jurisdiction it is sufficient to mention that OP has office in Delhi. That is enough for conferring territorial jurisdiction on this Commission.

 

18. Without going into controversy whether the flat is complete or not, it is sufficient to mention that booking was done in 2012 and now we are in 2020.  The complainant cannot be made to wait indefinitely for the flat. It is his option to have the flat or have refund.  In this regard reliance can be placed on Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Reghavan, 2019 SCC Online SC 458.

 

19. Now issue remains whether complainant is entitled to any interest and if so at what rate. The agreement does not provide for any interest payable by OP. So rate of interest that can be awarded must be reasonable. In the present scenario when banks are offering interest 6% to 7% per annum on FD, it does not appeal to mind that complainant should be given interest @ more than 9% per annum.  Accordingly the complaint is allowed and OP is directed to refund Rs.21,65,206.11 with interest @9% per annum from the date of payment till date of refund which would take care of compensation and litigation charges also.

 

20. Copy of the order be sent to both the parties free of cost.

 

21. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)

Bench-2

                              

245.