Chandigarh

DF-II

CC/794/2022

SHRUTI CHHABRA W/O ARVIND CHHABRA - Complainant(s)

Versus

OMAXE NEW CHANDIGARH DEVELOPERS PRIVATE LIMITED THROUGH ITS CHAIRMAN/MANAGING DIRECTOR/AUTHORIZED SI - Opp.Party(s)

DEEPAK AGGARWAL AND GAUTAM KUMAR GOYAL

16 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	794 of 2022
Date  of  Institution	:	25.11.2022
Date   of   Decision	:	16.04.2024

 

 

 

 

 

1]  Shruti Chhabra wife of Sh.Arvind Chhabra.

2]  Arvind Chhabra son of Sh.M. L. Chhabra,

Both residents of House No.419, Sector 78, Mohali.

             …..Complainants

 

Versus

Omaxe New Chandigarh Developers Private Limited (earlier known as Omaxe Chandigarh Extension Developers Private Limited) having its Corporate Office at India Trade Tower, First Floor, Madhya Marg Extension, new Chandigarh, Distt. SAS Nagar, Mullanpur, Punjab Pin 140901 through its chairman/Managing Director/Director/Authorised Signatory Sh.Kamal Kishore Gupta

(Old Address:- M/s Omaxe Chandigarh Extension Developer Pvt. Ltd., Office at SCO No.139, 140, First Floor, Sector 8-C, Madhya Marg, Chandigarh-160008)

     ….. Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Argued by:-     Sh.Deepak Aggarwal, Counsel for complainant.

Sh.Manjinder Kumar & Sh.Munish Gupta, Counsel for the OP

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1]       The complainants have filed the present complaint pleading that they earlier filed a consumer complaint bearing No.11 of 2017 before the Hon’ble State Commission, UT, Chandigarh, which was partly allowed vide order dated -05.05.2017 with directions to the OP to refund an amount of Rs.43,85,542/- to the complainants along with interest as well as to pay compensation and litigation cost.  It is stated that the refund sought by the complainants in said complaint was to the extent of the payment made by them till the date of filing said consumer complaint i.e. 06.01.2017.  However, during pendency of the said complaint, the complainants also made payment of Rs.2,96,394.76 ps. to the OP towards the sale consideration of the unit in dispute.  It is submitted that since the said amount of Rs.2,96,394.76 ps. was deposited with the OP during pendency of the complaint, as such the complainant could not claim the recovery thereof.  Even the prayer of the complainants for the refund of said amount made in the execution application preferred before the Hon’ble State Commission, UT, Chandigarh was not considered and as such the complainants/Decree Holders withdrew the Execution Application with liberty to avail remedy as per law. Therefore, the complainants preferred the present consumer complaint seeking refund of the remaining amount of Rs.2,96,394.76 ps. paid to the OP in respect of the unit in question.  It is pleaded that the complainants approached the OP for seeking refund of the said amount but the OP did not refund the amount. Therefore, the present complaint has been filed alleging the said act & conduct of the OP as deficiency in service and unfair trade practice with a prayer to direct the OP to refund an amount of Rs.2,96,394.76 ps. with interest as well as to pay compensation and litigation cost.

 

2]       After service of the notice, the OP has put in appearance, filed written version and while admitting the factual matrix of the case, submitted that the relief which was sought by the complainants in earlier Consumer Complaint No.11 of 2017, would reveal that the refund has not been sought by them till the date of filing of the complaint.  It is stated that the order of refund was passed on 05.05.2017 i.e. after the said alleged payment made in January 2017, thus, all the payments made prior to the passing of said order, stands adjudicated. It is also stated that in the year 2020, execution application was filed by the complainants with the averments that by mistake the complainants claimed refund of only the basic sale price and that too Rs.9000/- less and failed to seek refund of amount paid for service tax to the tune of Rs.1,60,111/-. It is also pleaded a new case has been projected before this Commission by the complainants alleging that since amount paid in January 2017 was paid during pendency of the earlier complaint, therefore, the same was not mentioned in the refund sought before the Hon'ble State Commission. It is submitted that contradictory stands of the complainants itself show that they are not aware of what was sought by at earlier point of time and what is being sought now. It is also submitted that the cause of action, if any accrued to the complainants in Jan., 2017 when they paid the amount or at best in May, 2017 when the earlier complaint was decided. It is further submitted that omission to seek refund of the said amount, amounts to giving up of relief qua the said part.  It is pleaded that the said amount was of service tax which does not go to the pocket of the OP and is collected on behalf of the government and transmitted the same to the government agency. Denying other allegations, the OP has prayed for the dismissal of the complaint with cost.

 

3]       Replication has also been filed by the complainants controverting the assertions of the OP made in the written version.

        

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the contesting parties and have gone through the entire record including written submission. 

 

6]      The perusal of the documents on record and pleadings of the parties reveals that the complainants have demanded the remaining amount of Rs.2,96,394.76 ps. from the OP which they deposited during the pendency of earlier complaint and also preferred an execution application for the same before the Hon’ble State Commission, UT, Chandigarh.  The Hon’ble State Commission, Chandigarh granted liberty to the complainants to avail the remedy and accordingly the present complaint has been filed.

 

7]       It is observed that the OP have not disputed the receipt of said amount from the complainants during the pendency of earlier complaint and only pressing that it is time barred. It is also observed that the stand of the OP to deny the said amount to the complainants on the ground of time barred is unjustified because the cause of action in favour of the complainants is recurring one as the amount is still lying with the OP.  It is further observed that the OP cannot deny the refund of said amount to the complainants on technical grounds.  Therefore, there is clear deficiency in service and adoption of unfair trade practice on the part of OP in denying the refund of the amount to the complainants to which they are fully entitled.

 

8]       Taking into consideration the above discussion & findings, we are of the opinion that the deficiency in service as well as unfair trade practice on the part of OP has been proved. Therefore, the present complaint deserves to be partly allowed and the same is accordingly allowed against OP.  The OP Company is directed to pay refund an amount of Rs.2,96,394.76 ps. to the complainants. 

         This order be complied with by the OP within 90 days from the date of receipt of its certified copy, failing which the OP shall be liable to refund the above awarded amount of Rs.2,96,394.76 ps. along with interest @9% per annum from the date of order till the date of its actual payment to the complainants.

 

9]       Pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

16.04.2024                                                                    Sd/-

                                                            (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER