| 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.552/2012 RAJESH K R EC NO. 2658, QA STD ROOM, HERO HONDA MOTORS SECTOR 33,34, DELHI-JAIPUR HIGWAY, GURGAON, …..COMPLAINANT Vs. OMAXE LIMITED REGD. OFFICE 7 LOCAL SHOPPING CENTER KALKAJI, NEW DELHI-110019. .….RESPONDENT Date of Institution-26.11.2012 Date of Order- 14.09.2022. O R D E R RASHMI BANSAL– Member The Present complaint has been filed by the complainant against the OP against cancellation of the allotment of the flat, along with prayer for compensation and litigation cost. - It is the case of the complainant that he has booked a residential flat with the OP’s upcoming residential township project (2006) named as “Omaxe Heights” at Bhiwadi, District Alwar, Rajasthan, to be developed and constructed by OP for a total consideration of Rs. 19,42,700/- inclusively of all / additional charges under the construction linked payment plan and made initial payment of Rs. 2,75,000/- through cheque on 09.06.2006 against receipt bearing number, 55002965, Ex. PW1/1 and has been allotted flat no. 601, 6th floor, in Carnation – B Tower, having built up area 1110 sq. ft. vide allotment cum call
letter dated 29.04.2008, Ex. PW1/2, and calling for payment of Rs. 1,35,700/-, towards 10% of basic sale price (BSP) whichwas paid by complainant on 30.05.2008, against receipt no. 310574, Ex. PW1/3. Complainant submitted that till this time he has paid a total amount of Rs. 4,10,700/- to the OP which is approximately 25% of BSP. Vide letter dated 18.07.2008, OP has provided details of the instalments to be paid by complainant under the construction linked payment plan, - This is submitted by the complainant that vide letter dated 25.10.2010, Ex. PW1/5, the OP has informed the complainant company has revamped the entire project and decided to build low rise building in place of high rise building and re-allotted him apartment no. 301, in Carnation – F block, on third floor, with super built up area of 1220 Sqft. instead the earlier apartment allotted to him, which now stands cancelled and demanded payment of 1,12,680/- to be paid latest by 10.11.2010, failing which his right of the provisional re-allotment shall be discontinued. The complainant alleged that the OP has changed the unit unilaterally, wrongfully, without his consent and without any prior intimation to the complainant after four years of the commencement of the project. Complainant stated that there was no agreement between the complainant and OP with regard to purchase of any flat other than the flat which were initially allotted to him. Complainant further submitted that he has approached OP office many times but did not get any satisfactory response.
- Complainant stated that vide letter dated 17.08.2011, Exhibit PW 1/6, OP has cancelled the re- allotted apartment, F- 301, citing default in payment on the part of complainant and thereby forfeited Rs. 4,10,700/- paid by the complainant. The complainant submit that there is no agreement exist between complainant and OP with respect to flat no. F- 301. The complainant states that the unilateral decision of the OP in cancelling the initial flat was an arbitrary and unlawful act and forfeiting Rs. 4,10,700/- was wrongful and unlawful. Complainant’s legal notice dated
05.06.2012, replied by OP on 01.08.2012, Ex. where in OP denied all the allegations and justified the forfeiture of above stated amount of Rs. 4,10,700/-. - Complainant submitted that due to the unreasonable, arbitrary act of OP, he has suffered harassment, mental agony and torture and praying for the allotment of initial flat number B-601 for a price of Rs. 19,42,700/- , withdrawal of the cancellation letter dated 17.08.2011 along with compensation and litigation cost. Complainant relied upon the case of Lucknow Development Authority versus MK Gupta,(1994) 1 SCC 243 and Haryana Development Authority and others versus TEJ Refrigeration Industrie, 1986-2013 Cosumer 16572 (NS) 1986.
- Upon notice, OP has filed his written statement and evidence by way of affidavit through power of attorney Ex. RW1/A, denying the allegations of the complainant, however, admitted that the complainant has registered himself for the allotment of a flat in the upcoming residential project of OP by depositing a sum of Rs. 2,75,000/- against the receipt No. 55002965 dated 09.06.2006, Ex. RW1/1 and an allotment letter dated 29.04.2008 Ex. RW1/2 was issued to complainant of provisional allotment of the flat No. 601 in Tower-B, built up area of 1110 square feet in the group housing project “Omaxe Heights” to be developed as a part and parcel of Omaxe City at Bhiwadi, Rajasthan as per the tentative allotment plans and also admitted the payment of an instalment of Rs. 1,37,700/-. The OP stated that it has been clarified to the complainant vide letter dated 29.04.2008 that the allotment was only provisional in nature and based on tentative allotment plans meaning thereby, it was liable for change. OP stated that no specific date for the possession was mentioned in the letter dated 29.04.2008.
- The OP submitted that nothing has been concealed from complainant and after understanding all implications the complainant accepted the aforesaid provision tentative allotment and made payment to OP and based upon aforesaid representation and investment of the complainant
it undertook the development of the project and in the best interest of the project complete revamping of the plans of the complex was undertaken giving way to low raise buildings (up to four floors). OP also admitted the change of the booked flat from flat No. 601, Tower-B, 6th Floor to flat No. 301, 3rd Floor, F-Tower of the same project stating that it had super built up area of 1220 square feet, having a similar agreed specifications/ facilitiesand on the same sale consideration and since complainant failed to pay Rs. 1,12,680/- in terms ofits letter dated 25.10.2010, by 10.11.2010, which, the complainant has failed to pay andrendered himself liable for cancellation of his allotment and forfeiture of the booking amount, however, to safeguard the interest of complainant, OP did not cancel the unit but sent reminders telephonically. Since, the complainant continued to default for ten months, the OP presumed that the complainant is no more interestedin the project, cancelled the allotment of the complainant vide its letter dated 17.08.2011, . The application form dated 30.05.2006 for allotment/ registration and basic terms and conditions are . OP submitted that after the cancellation of the allotment of the complainant, the said unit, in question was sold away to another person. The OP further submitted that complainant has no cause for revocation of the cancellation of the said flat as there was non-performance on the part of the complainant and this is the complainant who has breached the terms and conditions of the allotment by not adhering to the payment terms. - The complainant has filed the rejoinder to the reply of the OP and denied the material facts contrary to the complaint and reiterated the facts stated in the complaint, the evidence by way of affidavit and the written arguments.
- We have gone through the documents placed on record by both the parties. There is no dispute with respect to the provisional allotment in the above stated project and payment of Rs.2,75,000/- as booking amount on 09.06.2006 and Rs.1,35,700/- towards instalment on 30.05.2008 for the Flat no. B- 601. The OP has provided
payment schedule on18.07.2008 for the same flat, and thereafter, on 25.10.2010, without any prior notice, unilaterally changed complainant’s allotted unit from B-601, to F-301, third floor and demanded further payment, stating that it has revamped its entire project and changed the plan from high rise building to low rise building. - The OP failed to produce any Buyer Developer Agreement entered between complainant and OP as mentioned in its application form, as well as in the letter dated 25.10.2010, where OP re-allotted the unit but mentioned that a fresh agreement shall be executed between the parties. No detailed agreement provided to complainant.
- The letter dated 25.10.2010, cannot be treated as a continuation of old agreement as it is altogether a new offer to the complainant, with new lay out plan and changed subject matter and unless it is accepted by the complainant, no binding contract exist between the parties. There is no document placed on record by OP to show that complainant has consented for the replaced flat no. F-301 in place of B-601. There is novation of the contract, which means creating a new contract while the old one is terminated and need not be performed and the same is the contention of OP in its letter 25.10.2010, stating ‘upon allotment of the above apartment in the low rise building of the said project, the provisional allotment of captioned apartment shall stand cancelled and all communications, money, receipts, application form/agreement , with regard to captioned apartment shall stand cancelled modified to give effect to aforesaid change. A fresh agreement , if required, shall be executed between us in this regard.’ And for a new contract a fresh consent is required from the other party to the contract.
- Consent is an important and vital ingredient of valid contract which means two or more persons to a contract are said to consent when they agree upon the same thing in the same sense. In the absence of the valid consent the contract vitiates. In the present case, complainant consented for the initially allotted flat i.e. flat no. B-601 and not for F-301 and
for the same he has paid booking amount as well as the instalment of Rs. 1,35,700/-. Complainant has not agreed to pay consideration for the replaced unit allotted to him. Even the terms and conditions, as mentioned by the OP with application form are one sided, favourable and inclined towards OP. Such one side terms of the contract are not binding upon complainant. OP cannot impose its choice upon its customers to buy certain specific flat and to pay for the same. The contract is void due to lack of the valid consent and when there is no contract between them, the OP is bound to return the amount received by him from complainant. - Moreover, admittedly, there was no agreed or assured date of completion of the original Project and to give the possession of the flat to the complainant in the original allotment letter, which is against the prime responsibility of the OP to ensure delivery of possession of the flats /unit(s) to its buyer(s) / consumer(s) within the agreed and assured period and in all contingencies within a reasonable period of time (reasonable period here would connote such period as a reasonable man would not normally agitate). Therefore, the contract in itself is void due to uncertainty.
- The revamping of the entire plan in 2010 establishes that OP has not started the project even after four years of accepting the registration amount from the complainant in 2006 and not even in 2008, when the allotment of the flat B- 601 was issued, which further establishes that OP was not intended to execute the said project as offered to complainant and thereafter, by keeping complainant in dark, has revamped entire project and demanded money. OP stated that they have presumed that the complainant was not interested in the flat and on that presumption cancelled the allotment, without giving an opportunity to complainant to consider the changed plan of the OP, and forfeited entire amount submitted by him to OP, which is entirely unlawful and arbitrary. Perusal of the record shows that on the first occasion, there was provisional allotment of the flat, on re- allotment, again there was provisional allotment, which establishes uncertainty of the subject matter on the part of OP, as the prospective buyer must know for what he is paying. We note ingredients of both, 'deficiency in service' within the meaning of Section 2(1)(g) & (o), and 'unfair trade practice' within the meaning of Section
2(1)(r) of the Consumer Protection Act, 1986, to be well and truly evident on the part of the OP. Since the flat has been sold to other person, the same cannot be directed to be given to complainant, though OP has not filed any document to that effect, we are of the opinion that interest of the complainant is protected if he is sufficiently compensated by OP. Therefore, we direct the OP to refund the entire amount deposited by complainant i.e. Rs. 4,10,700/- without any deduction, along-with interest @ 9% p.a. from date of cancellation of the flat i.e. from 17.08.2011 till date of actual realisation by complainant, an amount of Rs. 25,000/- towards unfair trade practice, an amount of Rs. 25,000/- towards deficiency in services and causing mental harassment, mental agony and torture to complainant and 15,000/- towards litigation cost. The failure to pay the above stated amount within 3 months, will make the OP liable for payment of default interest @ 12% S.I. p.a. till the payment is made. - The file be consigned to the record room after providing copy of the order to the parties in terms of Consumer protection Act, 1986.
- The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in
- The order contains 7 pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
