Delhi

StateCommission

CC/11/236

NARENDER KR. - Complainant(s)

Versus

OMAXE LTD - Opp.Party(s)

24 Nov 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

 

                                                             Date of Decision: 24.11.2017

 

Complaint Case No. 236/2011

 

In the matter of:

 

Sh. Narender Kumar

H-307, Beta-II

Greater Noida

Distt. G B Nagar (UP)                               ........Complainant

Versus

 

M/s Omaxe Limited

Omaxe House

7, Local Shopping Centre

Kalkaji, New Delhi-110019       

 

Also at:

 

Omaxe Connaught Place

Sector Beta-II, Greater Noida

Distt. G B Nagar (UP)                               ........Opposite Party

 

                                                                  

CORAM

 

N P KAUSHIK                        -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGMENT

 

1.     Complainant has stated in his complaint that M/s OmaxeLimited (in short the OP) floated a scheme for allotment of shop/ATM space/showroom/food court/ commercial space in the commercial complex named “Omaxe Connaught Place” located in Beta-II, Greater Noida Distt. GautamBudh Nagar UP. Complainant applied for allotment of a shop in the aforesaid commercial complex for earning his livelihood by means of self-employment. OP vide its allotment letter dated 29.01.2007 allotted to the complainant a shop bearing no. 131, measuring 219.30 sq. ft. and located on the ground floor. As per agreement physical possession of the shop was to be handed over to the complainant within a period of thirty months from the date of letter of allotment.
2.     Complainant made payments to the OP in terms of the letter of allotment. By 20.12.2008, an amount of Rs. 18,55,525/- stood paid to the OP. 5% of the sale consideration was to be paid at the time of handing over the possession. Complainant stated that he was ready and willing to pay the balance 5% of the sale consideration.
3.     Grievance of the complainant is that he visited the office of the OP several times and requested him for issuance of the letter for the payment of the balance amount which was 5% of the total cost.  OP simply gave false assurances. Complainant sent a letter dated 19.08.2010 by way of registered post. An e-mail was also sent. In response to the e-mail dated 19.08.2010, OP assured that his request was under process. Reply to the e-mail is dated 19.08.2010. OP failed to handover the possession of the shop till date.
4.     With the aforesaid spectrum of facts complainant has prayed for refund of the amount of Rs. 18,55,525/-alongwith interest @ 24% p.a. Compensation to the tune of Rs. 5,00,000/- and litigation charges of Rs. 25,000/- have also been prayed for.
5.     OP in its written version took an objection that the project was commercial in nature and for that reason consumer complaint was not maintainable. Next submission of the OP is that the complainant was a defaulter in making payment of the installments on time. OP also took an objection to the effect that in view of the arbitration clause in the agreement, proceedings under Consumer Protection Act 1986 were barred.
6.     Complainant filed rejoinder reiterating the averments made in the complaint. Parties placed on record their affidavits towards evidence. Written arguments were also filed by the parties.
7.     I have heard at length the arguments addressed by the counsel for the complainant Sh. S K Singh Advocate and the counsel for the OP Sh. Mukti Bodh Advocate.
8.     Objection is raised by the OP that the complainant was not a consumer, the complaint relating to the allotment of a commercial space. Complainant in his complaint has made it clear that he applied for allotment of the shop for earning his livelihood by means of self-employment.
9.     Sale consideration of the shop as per agreement is Rs. 17,78,677/- besides, a few additional charges. Admittedly the complainant paid an amount of Rs. 18,55,525/-. OP has failed to prove a single document showing default on the part of the complainant in making payment of installments. OP too has not cancelled the allotment so far. Objection thus raised by the OP is not tenable.
10.         OP raised an objection that the complaint was hit by section 8 of the Arbitration and Conciliation Act 1996. Hon’ble National Commission in the case of Aftab Singh &Ors.v. EMAAR MGF Land Limited &Anr.,III (2017) CPJ 270 (NC) has held that the consumer complaint in no way is barred by the provisions of the Consumer Protection Act 1986. Objection on this count is thus not maintainable.
11.         Shop in question was to be handed over to the complainant within a period of three years from the date of letter of allotment. In other words, possession was required to be handed over on or before 29.01.2010. It is not the case of the OP that the OP is in a position to handover the physical possession of the shop even today. There has been an inordinate delay in handing over the physical possession of the shop. Clearly the OP has been ‘deficient in service’ and guilty of ‘unfair trade practice’. For these reasons OP is directed to pay to the complainant as under:

1. to refund the amount of Rs. 18,55,525/-alongwith interest @ 18% p.a. from the date of deposit till the date of its realization.
2. to pay compensation to the tune of Rs. 3 lacs to the complainant for causing inconvenience, harassment, sadness, anguish and mental agony.
3. to pay litigation charges of Rs. 25000/- to the complainant.

 

The abovesaid order shall be complied with by the OP within a period of sixty days from today failing which the amounts shall carry interest @ 24% p.a. The complaint is accordingly disposed of.

12. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be sent to records.

 

                                                         (N P KAUSHIK)
MEMBER (JUDICIAL)