DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.169/13
Mrs. Monica Tiwari
W/o Capt. Vijay Kumar Tiwari
Welham Boys School
5, Circular Road Dalanwala
Dehradun-248001, Uttrakhand.
Capt. Vijay Kumar Tiwari
S/o Shri B.C. Tiwari
Welham Boys School
5, Circular Road Dalanwala
Dehradun-248001, Uttrakhand .…Complainants
VERSUS
M/s. Omaxe Buildhome Pvt. Ltd.
Through its Director Shri Rohtas Goel
E-7, Ansal Villas, Village-Satbari
Mahrauli, New Delhi-110074.
Also At:
M/s Omaxe Buildhome Pvt. Ltd.
Through its Directors
Omaxe House, 10, Local Shopping Centre
Kalkaji, New Delhi-110019. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution:08.04.2013
Date of Order :22.05.2023
Member: Shri U.K.Tyagi
Complainants have requested to pass an award directing M/s Omaxe Buildwell Pvt. Ltd. (hereinafter referred to as OP) (i) to recall the cancellation letter & to issue revised demand note. And in case, the unit is not available, OP may be directed to refund the amount of Rs.10,94,375/- along with interest @ 18 % per annum from the date of payment till its realisation. (ii) To pay compensation of Rs.2,00,000/- towards mental anguish etc. (iii) To pay Rs.20,000/- as cost of litigation.
Brief facts of the case are as under:-
The complainant booked a unit measuring 1700 Sq. Ft. in the “Omaxe Palm Greens” at Sector-MU –Greater NOIDA. The complainant paid Rs.6,40,000/- vide receipt No.8844239 dated 03.10.2006. The same is annexed at Annexure-A. OP confirmed the booking and allotted Unit No.203 on II Floor in Spear Palm B tower vide allotment letter dated 21.09.2007. On the receipt of demand letters, the complainants paid Rs.4,54,375/- vide DD dated 17.07.2008 for which OP issued receipt No.317964 dated 18.07.2008 (copy is annexed as Annexure-C). Complainant No.-2 Mr. Vijay Kumar Tiwari vide its letter dated 06.08.2008 assigned 50% undivided share in favour of his wife, Monica Tiwari. The complainant requested OP to give NOC in favour of Canara Bank, Dehradun so as to enable them to avail home loan facility. Copy of same letter dated 06.08.2008 is enclosed as Annexure-D. Again, the complainant requested OP vide letter dated 09.09.2008 to provide status of earlier letter (same is Annexed as Annexure E). The OP required certain documents for inclusion of name of Monica Tiwari. The same was complied with by complainant NO.1. The complainant requested General Manager of Customer Relation of OP to provide NOC. All necessary documents were submitted to above –mentioned office of OP vide letter dated 04.11.2008 (same is enclosed as Annexure-G). Instead to issuance of NOC, the OP vide its letter dated 18.09.2009 informed that the company, i.e. OP had changed the allotment of the complainants and allotted another flat in the other Tower. Copy of letter dated 18.09.2009 is annexed as Annexure H.
The complainants received a letter dated 11.08.2011 in which OP intimated that the allotment had been cancelled and Rs. 6,56,625/- had been forfeited. As such, the non-issuance of NOC, shifting of allotment in other Tower and suo moto cancellation led to deficiency in service on the part of the OP. Hence complaint.
OP, on the other hand, filed its reply interalia raising some preliminary objections. The OP stated that as per clause 53 of allotment letter & Agreement, dispute between parties had to be resolved through arbitration. Further, it was alleged that this Hon’ble Forum did not have requisite pecuniary jurisdiction to entertain present complaint because total cost of the flat in question was approx. Rs.52,25,600/- much more than Rs.20,00,000/-. The complaint is barred by time and deserved to be dismissed on this ground alone. No unfair trade practice or deficiency in service is involved in the matter. The OP vide its reply has invoked the clause 22, 23 and 24 of allotment letter dated 06.11.2008 vide which the complainants are required to pay 15% as basic sale consideration as earnest money and in the event of failure of fulfillment of terms and conditions, the company i.e. OP is authorised to cancel the allotment of said unit and forfeit the earnest amount out of amounts paid by complainants. It was further stated that the complainants paid only 1st & 2nd instalments representing 25% of basic sale price and did not pay further instalments despite repeated reminders.
In the absence of response on further payments, the OP was left with no option but to cancel the allotment and further thereto forfeit the earnest money. It was also argued that timely payment by the allottees play a very important and decisive role in financial planning of the project. The said financial planning went haywire in the need of payment. OP did not indulge in unfair trade practice and no deficiency in service can be assigned to the OP. Therefore, the complaint may be dismissed with heavy cost.
Both the parties have filed written submission and evidence in affidavit. Written Statement is on record so is rejoinder. Oral arguments were heard and concluded.
This Commission has gone into the entire material placed on record. Due consideration was given to the arguments. The OP has raised the question of pecuniary jurisdiction of this Forum at the time of filing the complaint. It was contended by OP-Company that the total cost of flat No.203 on IInd floor in Spear Palm – B Tower, Greater NOIDA was around Rs.52,25,600/- which was much more than Rs.20,00,000/-. Further, the OP had filed an application dated 04.12.2017 of seeking dismissal of complaint on the ground of pecuniary jurisdiction in terms of judgment passed on 07.10.2016 by Hon’ble National Commission in CC 97 of 2016 in case of Amrish Kumar Shukla and 21 others Vs. Ferrous Infrastructure Pvt. Ltd. The Hon’ble Commission in above matter, settled principle of law regarding determination of pecuniary jurisdiction for filing of complaints under CP Act, 1986. It has been held that the aggregate value of goods/services and the compensation claimed, including the amount of interest, must necessarily be taken for determination of pecuniary jurisdiction.
This Commission has examined this issue of the OP with reference to the complaint and its prayer thereto. It may be noted that the allotment of flat under reference i.e. Flat No.203 was changed by the OP, at its own end. The consent of complainant was not obtained. The value/cost of the flat was not conveyed. The same was not seem to have been evidenced by the OP. Moreover, the complainant had requested this Commission to recall the cancellation letter in respect of Flat No.203, which is original allotment, the refund of amount of Rs.10,94,375/- was requested.
From the proceeding-record, it is noticed that OP was in discussion with complainant for settlement. At one point of time, Praveen Gupta AR of OP had offered to pay principal amount alongwith Rs.50,000/- to the complainant towards full and final payment as recorded vide order dated 27.06.2016.
In terms of above contentions and facts, the ratio of Hon’ble National Commission in above mentioned case does not apply. Hence, the application in this regard is dismissed. The contention of OP with respect to other preliminary objections with respect to time barred etc. have been examined and rejected. The matter relating to forfeit of earnest money is also examined. In view of above narration, the same does not apply in the instant case as allotment was changed at the end of OP with the consent of complainant.
In view of facts and circumstances in the case and discussion so made above, this Commission is of the considered view that OP is deficient in service and further directs OP to refund the entire amount of Rs.10,94,375/- deposited with OP alongwith interest @7% per annum within 2 months from the receipt of this order failing which rate of interest shall be levied @ 9% per annum till its realisation. The other requests of the complainant are rejected.
File be consigned to the record room after giving copy of the order to the parties as per rules.
