Chandigarh

DF-I

CC/569/2020

Ankur Gupta - Complainant(s)

Versus

Omaxe New Chandigarh Developers Pvt. Ltd. - Opp.Party(s)

Ravinder Pal Singh

15 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/569/2020
Date of Institution	:	3/12/2020
Date of Decision	:	15/7/2024

 

1.   Ankur Gupta S/o Sh. Sanjeev Gupta and

2.   Rakhi Gupta w/o Sh. Ankur Gupta

     Both are Resident of H. No. 195, Sector 19-A,   Chandigarh.

 

Complainants.

V E R S U S

 

1. Omaxe New Chandigarh Developers Private Limited, Regd. Office at 10, Local Shopping Centre, Kalkaji, New Delhi 110019 through its Managing Director/Director.

2. Sh. Kamal Kishore Gupta, Managing Director/ Director, Omaxe New Chandigarh Developers Private Limited Regd. Office at 10, Local Shopping Centre, Kalkaji, New Delhi 110019.

3. Sh. Bhupinder Singh, General Manager/ Manager, Omaxe New Chandigarh Developers Private Limited, Corporate Office at India Trade Tower, Madhya Marg Extension Road, New Chandigarh, Mullanpur, SAS Nagar, Mohali, Punjab 160014.

.  … Opposite Parties

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh. Kunal Dawar, Advocate for complainants.
	:	Sh. Arjun Sharma, Advocate for OPs.

Per surjeet kaur, Member

          Briefly stated the complainants booked a plot measuring 480.32 Sq. yards  with the Ops at their Omaxe Chandigarh Extension Phase 2 project. The Total price of the said plot was Rs.46,41,185/-  out of which the complainant has already paid 95% of the total payable amount to the tune of Rs.43,73,125/- in the year 2011 i.e. before the signing of allotment of letter and Buyer’s Agreement.  The provisional allotment letter was isused on 24.10.2011 and Buyer’s Agreement  was executed on 29.2.2012.  As per Agreement the possession of the plot was to be delivered  within a period of 18 months with a grace period of 6 months for taking necessary completion and occupation certificate from competent authority and the said period of 24 months got expired on 1.3.2014 but the possession of the plot was not offered  by the OPs at any  point of time.  The complainant visited the Ops  time and again but nothing was done though the site where the plot was situated is actually seems to be developed as there are well connected internal road, park and even constructions were started and as of now people are living in their houses.  It is alleged that instead of offering possession of the plot in question the OPs vide letter dated 27.11.2019 offered alternative plot measuring  399 sq. yards as compared to 480 sq  of the earlier plot or refund of the amount paid to the complainant on the ground of development issue in the original project, which was outrightly rejected by the complainant vide letter dated 27.1.2020 as the same does not suit the complainant.  Thereafter the OPs vide letter dated 15.10.2020, again offered an alternative plot or refund of the deposited amount along with cheques of the deposited amount dated 15.10.2020 by completely ignoring the reply of the complainants sent through regd. post on 27.01.2020 declining the offer of alternative plot as well as refund of the deposited amount. Complainants have not got the cheques encashed till date as they want possession of their originally allotted plot no. 446 BQ measuring 480.32 sq. yards. Complainants have also requested the OPs that if they can offer some similarly located plot of complainants' choice of about 480 or 500 sq. yards in the same area that will also serve the purpose but not a plot of lesser area and at the fag end of the project. But, no such other offer has been made by the OPs to the complainants till date. It is alleged that the Ops changed the numbering /alphabetic of the complainants’ plot from 446BQ to  446BP1.  Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties while admitting the factual matrix of the case stated that allotment of plot No.446BQ was  tentative in nature and final allotment was to be made at the time of offer of  possession and complainants were aware about the said fact.  The alltoemnt letter clearly specified the allotment to be tentative/provisional in nature and final allotment was to be made at the time of issuance of offer of possession. It is averred  that, since, plot no.446BQ does not exist, as such, the same could not be allotted to the Complainants. Accordingly, the Complainants were given an offer to either accept the possession of alternative plot or take refund of their deposited amount. It is denied that the OPs have changed the numbering of plot no.446BQ to 446BP1. It is averred that plot no.446BP1 was always in existence and was not created by changing the numbering of the originally allotted plot to the Complainants i.e. plot no.446BQ and the said averment gets substantiated from the very fact that plot no.446BP1 was also vide letter dated October 24, 2011, provisionally allotted to one Smt. Aruna Kumari and the same was accepted by Smt. Aruna Kumari vide letter dated October, 24, 2011, which proves beyond doubt that the averment of the Complainants that the numbering of originally allotted plot has been changed from 446BQ to 446BP1 is not only wrong and without any basis but is also the creation of Complainants imagination. It is averred that the OPs have acted in accordance with the terms  of agreement and there is no deficiency on the part of the OPs.  All other allegations made in the complaint has been  denied being wrong.
3. No rejoinder filed.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. Admittedly the complainant was allotted plot No.OCE/446BQ measuring 480.32 sq. yards  after paying the 95%  of the total sale consideration of Rs.46,41,185/-   i.e. to the tune of Rs.43,73,125/-  to the OPs  till date. Annexure C-4 is the provisional allotment letter dated 24.10.2011 and as per Clause 24(a) of allotment letter Annexure C-5 the OPs had to deliver the possession  within a period of 18 months  from the date of signing of the allotment letter with a grace period of 6 months which got expired  way back on 1.3.2014. Annexure C-6  is the letter dated 27.11.2019 sent by the OPs to the complainant  with regard to delivery of plot in question and they offered an alternative plot bearing No.446DL measuring 399.72 sq yds.  or in alternative offered refund of the amount.
7. The grouse of the complainant is that the  alternative plot offered measuring 399.72 sq yd is smaller in size  as  compared to the originally allotted bigger size plot measuring 480.32 sq yds. Even the said alternative plot was offered after almost 8 years that too after receiving 95% amount from the complainant.
8. During the pendency of the complaint the complainants have moved an application for allotment of plot NO.446BL measuring 612.88 sq.yds in lieu of originally plot No.446BQ towards full and final settlement and the complainant is ready to pay the differential amount of  the aforesaid plots. But this Commission cannot go beyond the pleadings contained in the complaint in hand to order the allotment of the aforesaid plot.
9. It is proved on record that despite payment of huge amount of Rs. Rs.43,73,125/-   the complainants are neither having the property nor the refund has been made as the cheques sent by the OPs for refund were never encashed by the complainants. Undoubtedly the act of OPs for using the hard earned money of the complainants till date and depriving   them  from the possession of the plot is deficiency in service.
10. The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018 has observed that a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation.
11. The ratio of law, laid down, in the aforesaid cases, is squarely applicable to the facts and circumstances of the instant case.
12. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to refund ₹43,73,125/-to the complainants alongwith interest @ 9% per annum (simple) from the date of  deposit till onwards
2. to pay ₹5,00,000/- to the complainants as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainants as costs of litigation.

13. This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
14. Pending miscellaneous application(s), if any, also stands disposed off.
15.   Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member Sd/-
15/07/2024			[Suresh Kumar Sardana]
mp			Member