| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.125/2017 RAJIV AGARWAL S/O. SH. KHEM RAJ AGARWAL R/O. 4/411, GAGAN VIHAR, DELHI-110051 …..COMPLAINANT Vs. M/S. OMAXE LTD. CORPORATE OFFICE AT:- 07, LOCAL SHOPPING CENTRE, KALKAJI, NEW DELHI-110019. ALSO REGISTERED OFFICE AT:- SHOP NO. 19-B, FIRST FLOOR, OMAXE CELEBRATION MALL, SOHNA ROAD, GURGAON-122001 (HARYANA) …..OPPOSITE PARTY Date of Institution-28/03/2017 Date of Order- 30/08/2022 O R D E R MONIKA SRIVASTAVA - PRESIDENT The complainant has filed the present complaint seeking possession of property No. PWD/ Jacaranda –B/116 measuring 779 square feet along with Rs. 4,12,870/- along with future month penalty as per the allotment letter. The complainant is also seeking directions for the OP to withdraw excessive interest charge of Rs. 61,658/- on account of delayed remittance and Rs. 10,000/- on account of electrical equipment and Rs. 27,833/- as holding charges. The complainant is also seeking Rs. 2,50,000/- as compensation for mental agony, harassment and Rs. 50,000/- as legal expenses. - It is the case of the complainant that he had booked one unit flat in the OP’s project at flat number 122 on first floor in JACRANDA C- Tower situated at Omaxe Parkwoods at Chakkar and Billanwali, Gujaran, Tehsil Nalagarh District Solan, H. P. admeasuring 713 sq ft for total sale construction of Rs. 10,71, 639/- @ 1503/- per square feet. The allotment letter dated 28.11.2006 in respect of the said flat is annexed as C1. It is the case of the complainant that OP forcibly and unilaterally changed the said allotted unit and allowed another residential flat bearing no. 123 first floor in JACRANDA B-Tower and the complainant was informed of the same vide letter dated 30. 04. 2011 ( Annexure C2). This was also changed without taking consent from the complainant to a flat with enhanced area and the complainant was passed on the burden of extra cost of the enhanced area. However, the complainant vide an email dated 08.09.2014 consented to it and the net basic sale price was now enhanced from Rs. 10,71,639/- to Rs.11,70,837/-.
- The OP was to handover the possession of the said flat by 27. 05. 2008 but the OP did not comply with the terms and conditions of the allotment letter dated 28. 11. 2006. As per the terms and conditions of the said allotment letter, the OP had to pay to the complainant Rs.4,12,870/- (5 x 779 x 106) i.e Rs. 5/- per square feet of super area per month for the period of delay to the buyer. The OP, finally sent a letter of possession to the complainant dated 26.03.2016 and demanded Rs.2,40,035.59/- on account of net basic sale price, additional charges towards open car parking, club cost, electrical equipment cost, interest free maintenance security and interest on delayed remittance. The complainant demanded clarification on penalty clause through letter dated 17. 05. 2016 email dated 31. 05. 2016 but the OP again demanded Rs. 2,17,451.79/- vide letter dated 30.09. 2016. The OP again demanded Rs.2,79,109.79/- vide letter dated 02.01.2017.
- The complainant states that OP has charged excessive interest charge of Rs. 61,658/- on account of delayed remittance and Rs. 10,000/- on account of electrical equipment and Rs. 27,833/- as holding charges, and for other reliefs, the complainant has filed the present complaint.
- It is the case of the complainant that the OP is charging excessively,
illegally and with malafide intention to cheat the complainant. It is stated that the OP has miserably failed to perform his part i.e to deliver the possession of the said unit to the complainant in May 2008 and is instead asking for excessive amounts from the complainant. It is further stated that on account of unwarranted and uncalled for acts on part of the OP, the complainant has suffered great mental agony and hardship and therefore the complainant is entitled to refund of Rs. 4,12,870/- along with future month penalty and Rs.3,00,000/- on account of mental harassment and legal expenses. - OP, in its reply has taken preliminary objection that there is no consumer dispute between the complainant and the OP as the OP has repeatedly requested the complainant to clear the dues and get his sale deed registered after taking possession of the flat however the complainant has been avoiding the same for reasons best known to him. It is also stated that the complainant has repeatedly defaulted in making payments of the installments and copies of the reminder letters sent to the complainant are annexed as annexure R1. The other preliminary objection taken by the OP is that the present complaint is grossly time barred.
- It is further stated that the present dispute is subject to arbitration as per agreement. The OP has, stated in its reply that the delay caused in handing over possession was for reasons beyond the control of the OP. It is also stated that the unit allotted to the complainant was changed as the changed unit was to be delivered for possession earlier instead of the former however, the complainant did not accept the said offer. It is further stated that the complainant had selected unit number 116 in tower B as per his own choice vide email dated 08.09.2014 annexed as R2. It is stated that the complainant was informed by the OP that Tower B would be ready for possession earlier and therefore an option to change the unit was given to the complainant which he did not accept.
- It is stated that the OP is not liable for delay compensation as the complainant has defaulted in making payments and the complainant was offered possession vide letter dated 26.03.2016 but he failed to take the possession. He was offered possession vide letters dated 12.12.2016, 02.01. 2017, 03.01.2017, 31.01.2017, 10.03.2017 and 05.04.2017. It is stated that the OP is liable to pay compensation for delay only up to Rs.26.03.2016.
- It is further submitted by the OP that the construction of the complainant’s flat is already completed, occupancy certificate has been issued and the registration of the sale deed is going on but the complainant is not taking the possession. The rest of the allegations of the complainant pertaining to cheating and fraud are denied by the OP as false and baseless and it is stated that they are defamatory in nature. It is also denied by the OP that complainant has suffered any mental agony or harassment for which he is entitled to any compensation.
- In his rejoinder, the complainant has stated that OP has not sent any letter before 26.03.2016 demanding any amount on account of default of payment. When the letter was received by the complainant thereafter, he sent a letter to the OP on 05.04.2016 asking for clarification as to how he is liable to pay any penalty and why OP has not adjusted the delayed penalty on account of delayed possession. It is further stated by the complainant that OP in its e-mail dated 27.12.2016 has accepted that it had to pay to the complainant Rs. 72,859/- which is more than the amount due from the complainant therefore, charging of interest against the complainant is totally wrong when there were no dues to be paid.
- It is further stated that OP got occupation certificate on 11.08.2016 whereas it sent the letter for offer of possession in March, 2016 which is illegal and unauthorised. It is further stated by the complainant that he did not default in payment of the instalments as he had already paid Rs. 10,66,000/- i.e. 99.47% of the cost of the said flat and the rest amount was payable at the time of offer of possession.
- It is also stated by the complainant that the complaint is not time barred as the OP had sent demand letter of Rs. 2,79,109.79/- on 02.01.2017 therefore the present petition is well within time.
- It is stated that arbitration clause does not take away the jurisdiction of the Consumer Forum as is settled by various judgments of the Hon’ble higher Courts. It is further stated by the complainant that the OP has not been able to deliver the possession in time on account of diversion of funds from one project to another and not on account of any natural calamity or Government Policy.
- As far as the change in allotment of the flat is concerned, it is stated by the complainant that he was informed by the OP that Tower-C will no longer be constructed therefore he had no option but to accept the changed unit in Tower-B. This change of flat was informed to the complainant by the OP vide letter dated 30.04.2011 specifying the area of new unit. It is stated that the OP by sending letters to get the sale deed registered and taking possession of the flat is hiding its own deficiency.
- The Commission has gone through the evidence and written arguments of both the parties. The allegation of the OP that the complaint is time barred does not hold good as the cause of action for the complainant arose on 26.03.2016 and the complaint was filed on 2017 therefore, the complaint is well within time.
- As far as objection relating to arbitration is concerned, the remedy provided under the Consumer Protection Act is in addition to and not in derogation of any other law.
- Coming to the plea of change in the flat, it is seen by Annexure C2 dated 30.04.2011 wherein OP had written the letter to the complainant stating that keeping in mind that construction of Flat No. 123 ,Tower-B is being completed first therefore, Flat in Tower B was offered to the complainant.It is also stated in the said letter that all money receipts pertaining to the earlier flat and the allotment letter stands altered and that a fresh allotment letter incorporating new flat no. would be shared soon with the complainant. It is also seen from annexure C1 dated 07.11.2006 that earlier flat No. 122 first floor in Tower-C was allotted to the complainant. It is not clear that after having allotted flat No. 123 in Tower-B, as to how the later correspondence refers to flat No. 116 tower-B. However, there is an e-mail dated 08.09.2014 wherein the complainant has agreed to “go with B-116” as per discussion with the site staff. This is exhibit RW1/3. The OP has nowhere annexed any correspondence which informs the complainant about changed specification of B-116 except on 26.03.2016 wherein they are giving the price break up as well as area of B-116.
- It is also noted that Exhibit RW1/4 mentions the statement of account wherein it is also hand written “2.40 Lakhs settled against delayed penalty of Rs. 3.13 Lakhs, no need to pay balance” and is dated 26.03.2016. Since this document has been filed by the OP there is no reason to arrive at the finding that this amount has not been settled with the complainant. Therefore, the complainant is not liable to pay any amount to the OP towards the cost of the said flat, interest on delayed payment etc except for holding charges on account of not taking possession of said property despite offer of possession from the date of occupancy certificate.
- Though, the OP had offered subject flat for possession in March 2016 but it received occupation certificate only on 11.08.2016 therefore the OP is not entitled to claim holding charges since March 2016. It is entitled to receive holding charges effective from the date of occupation certificate i.e. from 11.08.2016 till the possession is handed over to complainant.
From the documents on record, it is clear that the OP has been deficient in their services by changing different flats without specifying any reason. The complainant did not have much option, but to agree with the change as he had already paid a substantial sum of money to the OP. The OP has also been deficient in their services by not giving possession to the property promised in due time. In this regard, reliance is placed on IREO Grace Realtech Private Limited vs. Abhishek Khanna and Ors Civil Appeal No. 5785 of 2019 decided on 11.01.2021 by Hon’ble Supreme Court of India. - The OP is directed to handover possession of said property to the complainant within a period of ninety days. The OP is liable to further pay a sum of Rs. 1,00,000/- towards deficiency in service and mental harassment after adjusting holding charges from the date of occupation certificate i.e 11.08.2016 till the possession is handed over to complainant within a period of ninety days.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
