Delhi

StateCommission

CC/986/2018

NAVEEN MITTAL - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

SELF

23 May 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :23.05.2019

Date of Decision : 17.06.2019

COMPLAINT NO.986 /2018

In the matter of:

 

            Naveen Mittal,

            S/o Om Prakash Mittal,

            R/o House no. 355, Ramnagar,

            Kirana Mandi, Gaziabad, Uttar Pradesh.

                                                            ………Complainant

Versus

1.         M/s Omaxe Ltd & Ors.

            Registered office-7, Local Shopping Centre,

            Kalka Ji, New Delhi-110019 through Chairman and

Managing Director Mr. Rohtash Goyal.

 

2.         Mr. Rohtash Goyal, Chairman/ Managing Director,

            Omaxe ltd., Registered officer-7, local shopping centre,

            Kalkaji, New Delhi-110019.

 

3.         Ms. Neelam Singh, Authorized Signatory,

            Omaxe ltd., Registered officer-7, local shopping centre,

            Kalkaji, 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

 

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. Initially the complaint was filed in District Forum, Mehrauli where it was registered as CC-81/2017. The same was returned by District Forum due to lack of pecuniary jurisdiction vide order dated 24.07.2018. this is how the same has been re-filed in this Commission.
2. The case of the complainant is that OP-1 started a residential housing scheme in 2012 in the name of “OMAXE SHUBHANGAN, BAHADURGARH”, Haryana. On 21.08.2012 he deposited Rs. 3,00,000/- with OP-1. On 11.11.2013 flat no. 302 measuring 1280 square feet was allotted to him. The total price of the flat was Rs. 31,81,029.20/-. The complainant deposited Rs. 1,79,149.63/- vide receipt dated 17.11.2012. He also deposited Rs. 3,24,168.82/- vide receipt dated 1706.2013. Builder Buyer Agreement was executed on 28.03.2014. The OP was to hand over possession within 18 months with grace period of 06 months. In case of delayed possession, OP was to pay penalty of Rs. 5/- per square feet per month.
3. The complainant paid Rs. 4,28,391/- vide receipt dated 15.07.2015. In all the complainant has paid Rs. 12,31,669.45/- till filing of the complainant. OP has neither completed the flat nor handed over the possession within the agreed period. It is liable to pay penalty for delayed possession @ 6400 p.m. the OP raised demand for Rs. 4,13,865.68/- vide letter dated 01.02.2017 which is unlawful. The complainant sent e-mail surrendering the flat and demanding refund of the amount with interest @ 18% P.A. He has also prayed for costs of litigation.
4. The OP filed written statement raising preliminary objection that OP-2 and OP-3 have been impleaded unnecessarily, clause 62 of the agreement provided for arbitration. The complaint is not a consumer as it is not his case that he was purchasing flat in question for his own house. Clause 33 of the agreement provided that Rs. 2,00,000/- was to be treated as earnest money. Clause 35 provided that in the event of failure of buyer to perform his obligation, OP-1 was authorised to keep the booking in abeyance or cancel the agreement or forfeit the amount paid by complainant as earnest money. Complainant defaulted in payment for which letters were sent to him. On merits the OP repeated the same defence.
5. The complainant filed rejoinder and his own affidavit in evidence.
6. On the other hand the OP filed affidavit of Shubham Shree, AR. The OP filed written arguments.
7. I have gone through the material on record and heard arguments. The objection of arbitration clause is not sustainable in view of decision of Hon’ble Supreme Court in Emaar MGF Vs. Aftab Ahmed I (2019) CPJ-5.
8. The objection of complainant not being a consumer on the plea that he did not mention that he has purchased the flat for his own use, does not hold water. The reason being that said requirement is when booking is for a commercial space and not for residential space.
9. The question of forfeiture of earnest money does not arise as OP has not fulfilled its promise of completing the construction within 18 months. On 2305.2019 the complainant gave a statement that he was ready to accept the principal amount without interest if the OP makes the payment in lump sum. I feel there can be no better offer than this.
10. On 27.05.2019 counsel for OP agreed to refund the principal amount without interest within three months.
11. The OP is directed to refund Rs. 12,31,669.45/- by 30.08.2019. In the event of failure the OP would be liable to pay interest also @ 9% pa. from the date of respective payments till the date of refund.
12. Copy of the order be sent to both the parties free of costs.
13. File be consigned to record room.

 

        (O.P. GUPTA)     

MEMBER (JUDICIAL)