Haryana

StateCommission

CC/574/2017

SHYAMA YADAV - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

NAREN PRATAP SINGH

30 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Instituion:15.09.2017

                Date of final hearing:30.09.2022

                                                Date of pronouncement: 30.11.2022

 

Consumer Complaint No.574 of 2017

 

IN THE MATTER OF

 

Shyama Yadav w/o Sh. Shri Rajinder Singh Yadav, resident of VPO Badhahpur, near Radha Krishan Mandir, Main Sohana Road, Gurgaon (Haryana).

                                                                                      .….Complainant

Through counsel Mr. Naren Pratap Singh, Advocate

Versus

 

1.    Omax Ltd., Shop No.19-B, First Floor, Omaxe Celebration Mall, Sohna Road, Gurgaon-122001, through its Director.

2.    Omax Ltd., 7, Local Shopping Center, Kalkaji, New Delhi-110019 through its General Manager.

….Opposite parties

Through counsel Mr. Munish Gupta, Advocate

 

CORAM:   Mr. S.P.Sood, Judicial Member.

                   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Naren Pratap Singh, Advocate for the complainant.

Mr. Munish Gupta, Advocate for the Opposite Parties.

 

 

O R D E R

S. P. SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the complainant booked a flat No.803, Majestic Tower, 8^th floor having super area of 1164 sq. ft. on 13.09.2015 with the opposite parties (Ops) working under the name and style “Majestic Towers” situated at Omax Heights, Omax City, Sonepat, Haryana. Total sale price of the abovementioned flat was Rs.15,13,200/-. Complainant had opted construction linked plan and paid total amount of Rs.20,88,060/- to OPs on different dates as per table:-

Sr. No.	Date	Receipt No.	Amount
1.	20.09.2005	241215	Rs.3,00,000/-
2.	10.04.2006	241214	Rs.2,05,000/-
3.	20.12.2006	241209	Rs.1,38,110/-
4.	30.01.2008	289866	Rs.8,17,710/-
5.	19.06.2009	360258	Rs.5,55,516/-
6.	22.08.2009	373693	Rs.61,724/-
7.	14.06.2013	921929	Rs.10,000/-
Total Amount   Rs.20,88,060/-

 

Allotment letter dated 27.03.2006 was issued by the Ops. Flat Buyer’s Agreement was executed between the complainant and OPs on 26.12.2009. Further complanant alleged that as per the Flat Buyer’s Agreement, construction was to be completed within a period of 36 months from the date of execution of said agreement, but the Ops failed to hand over the possession of flat in question. It is alleged that Ops have already taken money from the complainant more than the original price of flat in question, but vide letter dated 25.10.2012 Ops demanded Rs.2,81,866/- on account of PLC charges, whereas complainant had specifically struck off the option of PLC in Buyer’s Agreement. Like wise that as per the Buyer’s Agreement, EDC and IDC charges were to be changed @ Rs.150/- per sq. ft., but the Ops illegally added Rs.90,807.08 in the account statement of complainant vide letter dated 25.10.2012 and that too without any information. Thereafter, Ops vide letter dated 09.01.2013 offered the possession of flat by demanding Rs.2,90,206.38/- as balance due, whereas she already paid the total cost of flat in question. It is further alleged that the complainant waited for some more time with the hope of amicable solution of the problem, but all in vain. Thus, there was deficiency in service on the part of the OPs. The complainant prayed that OPs be directed to refund the amount of Rs.20,88,060/-  which she deposited alongwith interest @ 12% from the date of deposit till realization. To pay an amount of Rs.3,00,000/- on account of mental agony and physical harassment and to pay Rs.1,00,000/- for litigation expenses.

2.                Notice of the complaint was issued against the Ops, upon which they appeared and filed separate written statement, taking preliminary objections regarding pecuniary jurisdiction to entrain the instant complaint as the present complaint exceeds Rs. one crore and the complainant being not covered under the definition of consumer as the flat in question was purchased by her for the purpose of investment. On merits it was submitted that the complainant booked a flat No.803 at 8^th floor in the project of Ops namely Majestic Tower, having super area of 1164 sq. ft. on 13.09.2015, situated at Omax Heights, Omax City, Sonepat, Haryana. Basic sale price of the said flat was Rs.15,13,200/-. Complainant had opted construction linked plan and paid total amount of Rs.20,88,060/- with the Ops. Flat Buyer’s Agreement was executed between the parties on 26.12.2009. It was also submitted that as per the agreement, construction was to be completed within a period of 36 months from the date of execution of said agreement subject to some reservations. It is further submitted that the amount of PLC sought from complainant was liable to be paid by her. Amount qua PLC can be charged at the time of offer of possession as per the final location, size, situation, but in the present case, unit in question has become PLC as the same is park facing and accordingly, as per the terms of the agreement, complainant was liable to pay PLC charges. It is further submitted that the amount qua external development charges and internal development charges were added on account of government policy, which cannot be avoided by the complainant. It is further submitted that the complainant was asked on several occasions by the Ops to clear the outstanding payment and come forward to take possession, but without any avail. Other allegations made in the complaint were also denied. Thus there being no deficiency in service on the part of the Ops,  prayed for dismissal of the complaint.

3.                When the complaint was posted for recording evidence of the parties, learned counsel for complainant has tendered into evidence affidavit of Shyama Yadav w/o Sh. Shri Rajindr Singh Yadv as Ex.CA, vide which he has reiterated all the averments taken in the complaint alongwith documents Ex.C-1 to Ex.C-13 and closed the evidence on behalf of complainant.

4.                On the other hand, learned counsel for OPs has tendered into evidence affidavit of Shri Deepanjit Singh s/o Sh. Shri Satwant Singh, Authorized Representative of Ops as Ex.R-1&2/A and closed the evidence on behalf of Ops.

5.                The arguments have been advanced by Mr. Naren Pratap Singh, learned counsel for the complainant and Mr. Munish Gupta, learned counsel for Ops. With their kind assistance 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 complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which she had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Mr. Naren Pratap Singh, learned counsel for the complainant that as far as the executing Flat Buyer Agreement Ex.C-6 is concerned, it is not in dispute. It is also not in dispute that complainants have paid an amount of Rs.20,88,060/- (Statement Ex. C-1) to the OPs. It is also not in dispute that the basic sale price of the apartment was Rs.15,13,200/-.   As per the Flat Buyer Agreement and the terms and conditions incorporated therein including date of delivery of the possession of the apartment, the possession complete in all respect was to be delivered to the complainants by the OPs within 36 months subject to some reservations. The period within which, the possession of the unit was to be delivered had already expired despite complainant depositing the total amount of Rs.20,88,060/-. In these circumstances, the complainant had no other option, but, to seek the refund of the amount alongwith interest, which she had already paid. 

8.                On the other hand, it has been argued by Mr. Munish Gupta, learned counsel for the Ops that the complainant herself approached OPs for booking of a residential unit and resulting that flat No.803, Majestic Tower, 8^th floor having super area of 1164 sq. ft. in its project with basic sale consideration of the unit Rs.15,13,200/- was allotted in her favour.  He further argued that complainant had opted construction linked plan and Flat Buyer’s Agreement dated 26.12.2009 was also executed between the parties. It is further argued that the complainant failed to clear the balance dues for getting the possession of flat in question rather she herself defaulted in paying of the installments. This is how complainant herself failed to comply with the terms and conditions of the Flat Buyer’s Agreement. Other allegations made in the complaint are denied. The answering OPs have not committed any breach of agreement. The complainant has no right to demand the refund of her deposited amount as builder has not refused to complete the development work and offer possession of flat to the complainant.  The answering OPs will offer the possession of the unit to the complainant after completion of development work. Thus, the complainant is not entitled for the refund as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is admitted case of both parties that upon floating a project by the builder, a residential unit was booked by the complainant on 13.09.2015 for basic sale price of Rs.15,13,200/- against which an amount of Rs.20,88,060/-  had been paid. It is not in dispute that allotment letter dated 27.03.2006 was issued by the Ops and flat No.803, Majestic Tower, 8^th floor having super area of 1164 sq. ft. was allotted to the complainant. Flat Buyer’s Agreement dated 26.12.2009 is also not disputed, which came into existance between the complainant and OPs. As per said agreement, the possession of the apartment was to be delivered within period of 36 months, complete in all respect subject to some reservation. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 09 years had expired, the possession of the apartment has not been delivered by OPs.  As such, there is a clear breach of terms and conditions of the Flat Buyer’s Agreement on behalf of the OPs. It is the normal trend of the developers that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly, the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of OPs and thus, complainant is well within her legal rights to get the refund of the amount of Rs.20,88,060/- (Rs. Twenty lacs eighty eight thousand and sixty only)   which she had already deposited with the OPs.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the Ops are directed to refund of the amount of Rs.20,88,060/-  (Rs. Twenty lacs eighty eight thousand and sixty only) to the complainant alongwith interest @ 6%  per annum from  the date of respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period. The complainant is also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/- (Twenty Five Thousand Only) as litigation charges. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable.

11.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

12.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on: November 30^th, 2022 

 

                                                                                                                                                                                                                                                                              S.C Kaushik                             S.P.Sood

                                       Member                                    Judicial Member                                         Addl. Bench                            Addl. Bench

R.K