| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA. Consumer Complaint No.344 of 5.9.2016 Decided on: 19.7.2018 Mrs.Rama Batish wife of Sh.Raman Sharma, resident of H.No.528, Phase-II, Urban Estate, Patiala. …………...Complainant Versus 1. Patiala Development Authority, Patiala, PUDA Complex, Urban Estate, Phase-II, Patiala through its Estate Officer. 2. The Estate Officer, Patiala Development Authority, Patiala, PUDA complex, urban Estate, Phase-II, Patiala. 3. OMAXE Ltd. 12, L.S.C.Kalkaji, New Delhi, through its M.D./authorized representative, having its Local Office, PUDA complex, Urban Estate, Phase-2, Patiala. …………Opposite Parties Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Smt. Neelam Gupta, Member Sh.Kanwaljeet Singh, Member ARGUED BY Sh.Anand Puri,Advocate,counsel for complainant. Smt.Kusum Sood,Advocate, counsel for OPs No.1&2 Sh.Sukhdeep Singh Sahni,Advocate, counsel for OP No.3 ORDER SH.KANWALJEET SINGH, MEMBER - Smt.Rama Batish, (hereinafter referred to as complainant) has filed the present complaint against Patiala Development Authority, Patiala and others (herein after referred to as OP(s) .
- The brief facts of the complaint are that one Mr.Ankur Sharma son of Karanveer Sharma, resident of H.No.1662/1, Mool Chand Street, Arya Smaj, Patiala, applied for the allotment of EWS flat No.SF-1, Daisy Block, Cluster-H, Omaxe City, Sirhind Road, Baran, Patiala vide application No.107323 dated 24.5.2010, which was allotted to him. Lateron the said flat was transferred in the name of complainant vide No.22083 dated 14.10.2014 for which the complainant deposited the transfer fee. The tentative price of the said flat was Rs.3,10,016/-.An amount of Rs.31702/- was deposited alongwith the application form and an amount of Rs.45802/- was deposited at the time of allotment of the flat on 23.2.2011.The remaining amount was to be deposited in 12 quarterly installment and if any allottee wants to deposit the entire balance amount in lump sum then he has to deposit Rs.2,32,512/-.The complainant deposited the said amount vide receipt dated 28.2.2011.As per terms and conditions of the allotment, the possession of the flat was to be delivered on the payment of the entire amount but till today the possession of the said flat was not delivered to the complainant inspite of depositing the entire amount.Lateron the price of the said flat was increased/enhanced and approximately Rs.33000/- was demanded from the complainant, to be deposited in four six monthly installments.The said amount was deposited by the complainant in time. Even then the possession of the flat was not delivered to her. She approached the OPs so many times and requested for delivery of the possession of the said flat but to no effect.A legal notice dated 3.8.2016 was also got served upon the OPs through Sh.Anand Puri,Advocate but all in vain.The said act of the OPs amounts to deficiency in service. Due to non delivery of the possession of the flat in question the complainant has suffered from monetary, mentally and physically, for which the complainant claimed Rs.1,00,000/- as compensation and Rs.20,000/-as litigation charges. Hence this complaint.
- Upon notice, OPs appeared through their respective advocates and filed their separate written statements.
- In the written statement, filed by OPs No.1&2 , preliminary objections have been taken to the effect that the complaint is not maintainable; that the complainant does not fall within the periphery of the definition of consumer, as per the Consumer Protection Act and the same is liable to be dismissed. Moreover, as per the scheme, the OPs No.1&2 had only 15% share whereas M/s Omaxe had a shore of 85% in the same. All the development of the project was to be undertaken by M/s Omaxe and not by the Ops.The possession of the flats was to be handed over by M/s Omaxe only and it is in possession of the same.The OPs have no property in its possession. Furthermore, as per the terms and conditions of the agreement between the replying OPs and M/s Omaxe, it has been the responsibility of M/s Omaxe to get the flats constructed and subsequently handed over the possession of the same to the allottees within the stipulated period but M/s Omaxe failed to do so for which the OPs have already questioned M/s Omaxe for not fulfilling the terms and conditions of the agreement and also for not handing over the possession of the completed flats to the allottees within the stipulated period. There is no deficiency of service on the part of the OPs and the complaint qua the OPs is liable to be dismissed.
On merits, the OPs have reiterated its stands as taken in the preliminary objections as detailed above .After denying all other averments made in the complaint , they have prayedfor dismissal of the complaint. - In the written statement filed by OP no.3, preliminary objections have been taken to the effect that the present complaint is not maintainable as on one hand the Welfare Society has filed a CWP No.14348 of 2016 before the Hon’ble Punjab & Haryana High Court against PDA and Omaxe Ltd seeking the same very relief of delayed development and amenities alogwith claim of interest which has also been claimed by the complainant Rama Batish.The replying OP has also appeared in the said CWP; that the Omaxe is not responsible or liable for delay if any, if the so called reasons are beyond control of Omaxe and the same were even clarified to the complainant vide letter/memo No.PDA/EO/PTA/2016/7444 dated 17.6.2016, as per condition No.6-A of allotment; that the complainant has not approached this Hon’ble Forum with clean hands; that the complainant has concealed the factum of pendency of CWP No.811 of 2011 titled as Harbhajan Singh and Ors. V/s State of Punjab and Ors and “stay construction”, the development of the entire project of Omaxe City, Patiala, construction etc. was stalled as Status Quo, was ordered by the Hon’ble Punjab and Haryana High Court in CWP No.8100 of 2011 on 29.7.2011 and the same was vacated only upon dismissal of writ petition on 26.9.2013; that some other so called allottees of plots in Omaxe city,filed application before Hon’ble Punjab and Haryana High Court in the said CWP No.8100 of 2011 for impleading them as party to the said writ petition, that the contract between PDA and Omaxe was expired due to which the construction was stopped and the Omaxe Ltd vide its letter dated 11.8.2014 vide No.OL/DIR/BARAN/2014/309 has written the letter to the Hon’ble C.M.Punjab and others , requested for extension of time for completion of PDA-Omaxe City but the same is still pending and no approval has been passed/given. So there was no delay on the part of Omaxe; that the complainant has not approached the Court with clean hands as she has concealed the fact that she is not depositing the amount and penal interest of late deposit of enhanced amount, pending since 5.5.2016, demanded vide letter No.5195 dated 5.5.2016,amount of Rs.104/-. On merits, it is stated that the complainant is well aware that the Omaxe could not carry out further developments due to operation of Status Quo orders.The OP has reiterated the stand as taken in the preliminary objection and after denying all other averments made in the complaint, it was prayed to dismiss the complaint.
- In support of the complaint, the ld. counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C22 and closed the evidence of the complainant.
- The ld. counsel for OPs No.1&2 has tendered in evidence Ex.OPA, affidavit of Smt.Anuprita Johal,Estate Officer PDA alongwith copy of agreement from pages No.32 to 34 and page No.64 as Ex.OP9 and closed the evidence of OPs No.1&2.
- The ld. counsel for OP No.3 has tendered in evidence Ex.OPB, affidavit of Sh.Deepanjit Singh, Dy.Manager(Legal) alongwith documents Exs.OP1 to OP8 and closed the evidence of OP No.3.
- We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
- During arguments both the counsel for the parties’ contentions are similar to their respective pleadings, so no need to reiterate the same.Also , the ld. counsel for OPs No.1&2 more stressed on Ex.OP9 i.e. Joint Development Agreement, clause 4.3 & reply of OPs No.1&2 in the preliminary objections para No.3, that OP No.3 had a share of 85% and also payment never went to OPs No.1&2. “A man can lie, but document cant”. In the light of Ex.C-1, allotment letter dated 3.12.2010, issued by OPs No.1&2, i.e. Estate Officer, PDA, Patiala and OP No.3, authorized signatory of Omaxe Ltd. From this angle OPs are jointly and severally liable towards the complainant. As per Ex.C1, allotment letter dated 31.12.2010, Clause 6(a) , “Possession of the house/flat to the allottee will be offered within three years from the date of allotment”. Moreover “No Due Certificate” dated 14.11.2013, which is Ex.C4, issued by OPs No.1&2 to the first allottee and lateron it was transferred in the name of the complainant after deposited the transfer fee of the flat on 1.10.2014 according to Ex.C7. Resultantly, we partly allow the complaint with the direction to the OPs jointly and severally to refund the total amount of Rs.3,42,987/- alongwith interest @12% per annum from the date of filing of the complaint i.e.5.9.2016 till realization and to pay Rs.10,000/- as litigation expenses. The said order be complied by the OPs within the period of two months from the date of receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED DATED:19.7.2018 Kanwaljeet Singh Neelam Gupta Member Member | |
