CONSUMER DISPUTES REDRESSAL COMMISSION – X

                           GOVERNMENT OF N.C.T. OF DELHI

                            UdyogSadan, C – 22 & 23, Institutional Area

                                       (Behind Qutub Hotel)

                                        New Delhi – 110016

   Case No:90/2013

Shri Ashawni Kumar

S/o Late Sh. Ramesh Chand

R/o D-15/115, Sector-7

Rohini, Delhi-110085.                    …..COMPLAINANT

Vs.

1. Omaxe Ltd.

7, LSC, Kalkaji

New Delhi-110019

2. Sh. RohtasGoel

Chief Managing Director

Omaxe Ltd

7, LSC Kalkaji

New Delhi-110019.                       …..RESPONDENTS

          Date of Institution-13.02.2013

          Date of Order-06.09.2024

O R D E R

RITU GARODIA-MEMBER

1.  The complainant pertains to deficiency in service on part of OP in providing delayed possession to the complainant.

2. Facts in nutshell are that the complainant was contacted by agents of OP relating to prelaunch offer of plot in a residential township in Sonepat, Haryana.  The complainant booked a 250 Sq.meter plot in a project namely ‘Omaxe City’.  It is stated that as per the Agreement, the basic sales price was fixed at Rs.4245.50 per Sq.meter.

3. The payment made by complainant as stated in the complaint are as follows:

4. OP allotted plot No.1105 on 24.06.2006, which was later changed to plot No.1903.  On 31.07.2007, the complainant and OP-1 entered into an Agreement. The complainant was offered possession on 16.01.2012. 

5. The complainant alleges that he received possession after a delay of three years and five months. The complainant has relied on clauses of the Agreement. It is alleged that the complainant was compelled to stay in a rented accommodation.  The complainant also alleges that Rs.40,000/- was charged towards club facilities, but no club has been constructed.  The complainant further alleges that the maintenance charges were arbitrary.

6. The complainant prays for an interest of 24% on the total amount from the stipulated date of possession, Rs.5,94,000/- towards rent, refund of Rs.40,000/- towards club facilities and legal cost of Rs.25,000/-.

7. OP in its reply submits that the complainant has obtained possession of the Plot No.1903 in Block-D, Omaxe City, Sonepat, and Conveyance/Sale Deed bearing Document No.2531 dated 22.05.2012 had been executed with respect to the said plot.  It is submitted that it has been agreed that all claims between the parties in respect of the above said plot has been settled and the complainant cannot raise the issues again.   

8. OP states that complainant had to pay various other charges apart from the basic sale price as per the Agreement.  OP further submitted that they have taken club charges as per the Agreement.  However, OP is silent about the existence of the club itself.

9. OP also relied on clause 23 of the Agreement.  As per OP, Clause 23 states that the possession to be given time only if the plot buyers makes timely payment.  The Agreement also does not provide for any damages/ compensation in case of delay in handing over the possession.

10. OP has also raised objection on grounds of limitation.  OP submits that the Agreement was dated 31.07.2007, the complainant was entitled to possession within 12 months i.e. 31.07.2008 and the present complaint filed in year 2013 is time barred. 

11. The complainant in its rejoinder has re-iterated the averments made in the complaint.

12. The complainant filed the evidence in form of affidavit and exhibited the following:

1. Evidence by way of affidavitis exhibited as EXB CW-1/1.
2. Copy of payment receipt is exhibited as EXB CW-1/2 & 2A.
3. Copy of Agreement is exhibited as EXB CW-1/3.
4. Copy of Conveyance Deed is exhibited as EXB CW-1/4.
5. Copy of emails is exhibited as EXB CW-1/5.

13. OP filed the evidence in form of affidavit and exhibited the following:

1. Copy of Board Resolution is exhibited as Ex.OP/1.
2. Copy of Conveyance Deed is exhibited as Ex.OP/2.

14. The Commission has perused the documents and material on record.  It is admitted that an Agreement was executed between the complainant and OP-1 on 31.07.2007.

15.  The statement of account dated 08.02.2012 is as follows : 

16. OP vide letter dated 01.11.2011 offered possession of the flat.  The receipt dated 14.11.2011 shows that Rs.3,405/- was paid as interest by complainant to OP.  The OP vide letter dated 16.01.2012 asked the complainant to get the plot registered. The complainant vide letter dated 24.01.2012 and email dated 08.02.2012 demanded interest from OP on grounds of delayed possession. The complainant in the said letter stated that no construction of any club has started till date though Rs.40,000/- have been paid as club charges.  OP vide letter dated 28.02.2012 issued no dues certificate to the complainant stating that full and final payment has been received.  Possession certificate dated 22.05.2012 was issued by the OP to the complainant.

17. OP has admitted that the complainant had to receive possession on 31.07.2008. The complainant received possession vide Conveyance Deed dated 22.05.2012.  The complaint was filed in this Commission on 13.02.2013. The complaint is within limitation as per Section 24A of Consumer Protection Act.

18. Clause 23 of the Agreement which is relied by both the parties are as follows:

(A)That the company shall complete the development/construction of the plot with a period of twelve months from the date of signing of this Agreement by the Buyer or within an extended period of six months, subject to force majeure conditions (as mentioned in Clause (b) hereunder) and subject to other Plot Buyer(s) making timely payment as mentioned in payment plan.

(B)That the company shall not be held responsible or liable for not performing any of its obligations or undertakings provided for in this agreement if such performance is prevented, delayed or hindered by act of God, fire, flood, explosion, war, riot, terrorist acts, sabotage, inability to procure of general shortage of energy, labour, equipment, facilities, materials or supplies, failure of transportation, strikes, lock outs, action of labour unions or any other cause.

(D)That, if for force majeure reasons or for reasons beyond the control of the company, the whole or part of the project is abandoned or abnormally delayed, no other claim will be preferred except that Buyer(s) money will be refunded on demand alongwith interest @6% p.a. from the happening of such eventuality after compliance of certain formalities by the Buyer(s).

19.  Hon’ble Supreme Court of India in Wg. Cdr.Arifur Rahman Khan And Aleya ... vs Dlf Southern Homes Pvt. Ltd.  IV(2020)CPJ10(SC) has observed-

…….The developer does not state that it was willing to offer the flat purchasers possession of their flats and the right to execute conveyance of the flats while reserving their claim for compensation for delay. On the contrary, the tenor of the communications indicates that while executing the Deeds of Conveyance, the flat buyers were informed that no form of protest or reservation would be acceptable. The flat buyers were essentially presented with an unfair choice of either retaining their right to pursue their claims (in which event they would not get possession or title in the meantime) or to forsake the claims in order to perfect their title to the flats for which they had paid valuable consideration. In this backdrop, the simple question which we need to address is whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title. It would, in our view, be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. This basically is a position which the NCDRC has espoused. We cannot countenance that view.

43…... This is a case involving an experienced developer who knew the nature of the representation which was being held out to the flat purchasers. Developers sell dreams to home buyers. Implicit in their representations is that the facilities which will be developed by the developer will provide convenience of living and a certain lifestyle based on the existence of those amenities. Having sold the flats, the developer may find it economically unviable to provide the amenities. The flat purchasers cannot be left in the lurch or, as in the present case, be told that the absence of facilities which were to be provided by the developer is compensated by other amenities which are available in the area. The developer must be held accountable to its representation. A flat purchaser who invests in a flat does so on an assessment of its potential. The amenities which the builder has committed to provide impinge on the quality of life for the families of purchasers and the potential for appreciation in the value of the flat. The representation held out by the developer cannot be dismissed as chaff…….. A developer who has breached a clear representation which has been made to the buyers of the amenities which will be provided to them should be held accountable to the process of law. To allow the developer to escape their obligation would put a premium on false assurances and representations made to the flat purchasers. Hence, in factoring in the compensation which should be provided to the flat buyers who are concerned in the present batch of appeals, we would necessarily have to bear this issue in mind.

20. The Agreement between the parties was executed on 31.07.2007. The said Agreement stipulates the completion of the development of the plot within a period of 12 months, i.e., by 31.07.2008, with an extension of six months permissible in the event of a force majeure condition. However, OP has failed to elucidate any force majeure condition in any of the correspondence exchanged between the parties or in its submissions before this Commission. OP has further admitted in its reply that the complainant was to receive possession by 31.07.2008.

21.  An offer of possession was made by OP on 01.11.2011, and a possession certificate was issued on 22.05.2012. The Agreement provides for a 6% interest to be paid by OP in the event of abandonment or delay of the project. In light of the discussion in Wg. Cdr. Arifur Rahman Khan (supra), OP is liable to pay interest for the period during which possession was delayed. Additionally, OP has charged club fees amounting to Rs. 40,000/- without constructing any club in the said project.

22. Hence, we find OP guilty of deficiency in service and direct him to pay –

1. Interest @6% on the amount received till the offer of possession from the agreed date of possession i.e. 31.07.2008 till the date of offer of possession i.e. 01.11.2011.
2. Refund Rs.40,000/- taken as club charges with 6% interest from date of payment till realisation.
3.  We also award a compensation of Rs.25,000/- towards mental agony and  physical inconveniences inclusive of litigation charges.

23. Order to be uploaded within 30 days and file be consigned to record room.