Delhi

StateCommission

CC/1124/2018

SH. AMIT PALIWAL - Complainant(s)

Versus

M/S OMAXE BUILDHOME LTD. - Opp.Party(s)

MR. SANDEEP PHOGAT

25 Nov 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :25.11.2019

Date of Decision : 05.12.2019

COMPLAINT NO.1124/2018

In the matter of:

 

Shri Amit Paliwal,

R/o. 133/DG3, Vikas Puri,

New Delhi-110018.………Complainant

 

Versus

 

M/.s Omaxe Buildhome Ltd.,

(Earlier known as Omaxe Buildhome Pvt. Ltd.),

10 & 1, Local Shopping Centre,

Kalkaji, New delhi-110019.                               …..Opposite party

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1.  Initially this complaint was filed in the District Forum South-II where it was registered as no.CC.475/15. Vide order dated 24.08.18 the complaint was returned due to lack of pecuniary jurisdiction in view of three members bench decision of NC in Amrish Kumar Shukla. The case of the complainant is that in 2012 he was searching for a residential house. At that time real estate industries was at boom. Therefore builder was flaunting customers with pre launch schemes/ projects. He decided to book a flat whose structure was complete. He decided to book a flat in Omaxe Pal Greens at Sector-MU, Greater Noida U.P. He paid booking amount of Rs.3,24,102 by cheques. The total cost of procurement of the flat was fixed at Rs.38,33,231/- column of preferential location charges towards floor and part facing was left blank as the same was not applicable on the flat booked by him. In the first  intimation letter dated 15.02.12 cost towards  preferential location charges was not mentioned. He made 95% payment towards basic selling price and 100% payment towards additional cost for the procurement of the flat, total amounting to Rs.37,58,593/- including service tax by 31.05.12. Balance 5% of the basic sale price and other charges, if any, was to be paid at the time of offer of possession. On 24.02.12  OP issued allotment letter giving details of payment to be made by complainant which comes to Rs.38,33,231/-. He came to know about arbitrary imposition of PLC of Rs.85,050/- on 23.11.13 only when offer of possession was issued. It mentioned about interest of Rs.12,184/- on account of delayed remittance. Statement of account shows balance of Rs.2,96,237/-. On 02.12.13 he visited the customer care office of OP where Mr. Rachit, Asstt. Manager showed his inability to reduce the amount. He under protest and without prejudice to its right gave a cheque of Rs.2,91,238/-. On 29.11.13 OP sent another letter for registration of the flat and demanded stamp duty and Rs.22,500/- towards registration and legal expenses. In order to secure the possession of the flat, he paid the amount, keeping all his rights reserved.
2. In Feb., 2014 he filed a  complaint before CREDAI which is a mediation forum of the collegium of builders. The same came up before Shri S.K. Dubey, retired High Court Judge  who orally communicated to the OP that since no notice  was given nor any consent was taken for complainant for change, OP was unfair and illegal to charge PLC. However since the parties did not agree, the medication proceedings failed. He got lease deed executed for the flat on 11.06.14. Hence this complaint for directing OP to pay Rs.85,050/-, charged by it towards PLC with interest @24% p.a. from 23.11.13 till payment, compensation for mental agony and harassment to the extent of Rs.1 lakh.
3. The OP filed WS raising preliminary objections that this forum has no territorial jurisdiction as the subject matter of the dispute was pertaining to immoveable property in Greater Noida, UP. Clause 53 of the letter of offer contains arbitration agreement. On merits it justified its demand.
4. The complainant filed rejoinder and his own affidavit in evidence.
5. On the other hand the OP filed affidavit of Shri Pawan Aggarwal, AR.
6. Both the parties have filed written arguments. None appeared for the complainant to address oral arguments. Counsel for OP submitted that the complainant is not a consumer as he has already taken possession and lease deed has been executed. In response to quarry that he has not taken said  objection in the WS, he submitted that the objection is purely legal and goes to the root of the case. The same can be taken as any time. Arguments appears to be convincing.
7. The counsel for the OP relied upon decision of NC in T.K.A. Padmanabhan vs. Abhiyan CGHS Ltd. II (2016) CPJ 273. In that case there was delay in delivery of possession, complaint was filed after 1 ½ years of complainant getting possession. It was held that agreement came to an end, there was no privity of contract between the parties on the date of filing the complaint. The complainant ceased to be a consumer. Hence order of this Commission dismissing the complaint was upheld. The present case is squarely covered in the ratio of the said case.
8. Moreover in R.P. No.4711/10 titled as Vandana Aggarwal vs. Mahagun Developers Ltd. decided on  11.09.12 the NC took the same view and dismissed the revisions petition filed by the allottee. In view of the above discussion the complaint is dismissed. However complainant would be at liberty to seek his remedy in Civil Court after excluding the time spent in present proceedings as per law laid down by Hon’ble Supreme Court in Laxmi Engg Works vs. P.S.G. Industrial Institute 1995 SCC (3) 583.
9. Copy of the order be sent to both the parties free of cost.
10. File be consigned to record room.

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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