Chandigarh

StateCommission

CC/167/2015

Mrs. Sundari Mehtab Kaur - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Dev. Pvt.Ltd. - Opp.Party(s)

Kabir Sarin, Adv.

02 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	167 of 2015
Date of Institution	:	12.08.2015
Date of Decision	:	02.02.2016

 

1. Mrs. Sundari Mehtab Kaur w/o Mr. Manoj Garg R/o #1022, Sector 36-C, Chandigarh – 160036.
2. Mr. Manoj Garg s/o Mr. Shriniwas Garg R/o #D/18, 3^rd Floor, Pamposh Enclave, GK-1, New Delhi – 110048.

 

 ……Complainants.

Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited, #10, Local Shopping Complex, Kalka Ji, New Delhi – 110019 through its Managing Director/Principal Officer.
2. M/s Omaxe Chandigarh Extension Developers Private Limited, SCO 139-140, 1^st Floor, Sector 8C, Chandigarh U.T. – 160008 through its Managing Director/Principal Officer.

              .... Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986

 

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                MR. DEV RAJ, MEMBER.

 

Argued by:   Sh. Kabir Sarin, Advocate for the complainants.

                    Sh. Vivek K. Thakur, Advocate for the Opposite     Parties.

 

PER DEV RAJ, MEMBER

 

            The facts, in brief, are that lured by the open proclamation of the Opposite Parties through local newspapers and various advertisements, the complainants approached Opposite Party No.2 at Chandigarh and shown their willingness to register for allotment of a residential plot measuring 500 sq. yards in the proposed residential project. The complainants submitted application form dated 6.12.2010 (Annexure C-1) and also paid Rs.22,50,000/- as booking money vide Receipt ID 465681 dated 11.12.2010, being 25% of the Basic Sale Price as mentioned in the payment plan, which was Rs.79,36,729.92Ps. The Opposite Parties further demand Rs.80,000/- without any explanation. The complainants opted for Down Payment Plan, as per which, 25% of the BSP was to be paid at the time of booking, another 15% of the BSP at the time of allotment, another 55% of the BSP within 30 days from the time of allotment and finally, residual payment of 5% of BSP was to be paid at the time of possession only. The complainants received correspondence dated 25.5.2011, vide which the Opposite Parties claimed to have provisionally allotted a residential plot to the complainants and asked the complainants to clear additional 15% of the BSP within a period of four days. The complainants paid Rs.12,85,200/- to the Opposite Parties vide receipt dated 27.6.2011 (Annexure C-2). Subsequently, vide letter dated 24.10.2011 (Annexure C-3), the Opposite Parties informed that residential Plot bearing No.2651 measuring approximately 499.92 sq. yards was provisionally allotted to the complainants. Thereafter, the Opposite Parties raised another demand vide letter dated 4.11.2011 (Annexure C-4) of Rs.40,44,693/- i.e. additional 55% of the BSP. The Opposite Parties had not yet finally allotted any residential unit to the complainants and also not executed any final allotment/contract between the parties. Finally on 9.4.2012 vide letter (Annexure C-6), the complainants received the complete and legal copy of allotment letter.

2.         As per clause 24(a) of the allotment letter, possession of the plot was required to be given within 18 months i.e. by 09.10.2013 or within further extendable period of 6 months. Vide letter dated 9.4.2015 (Annexure C-8), the Opposite Parties informed the complainants that possession of the plot, in question, is ready and raised a demand of residual sale price alongwith External Development Charges (EDC) and club costs, IFMS, Power Back etc. to be paid by the complainants within 15 days, in order to complete the formalities of the alleged offer of possession. As per the complainants, this correspondence, failed to call upon the complainants to visit and inspect the site.

3.         The complainants on becoming highly suspicious of the true nature and validity of the intentions of the Opposite Parties, visited the residential plot in the month of May, 2015 and shocked to see that the said residential plot is approximately eight feet below the actual road level, which has neither been rectified to ensure structural stability on any future construction, which is prone to flooding etc. There is no provision of water, electricity & sewerage at the said residential plot. There exists no road connecting the residential plot and the same is nothing but left over construction material thrown upon open and barren land, as depicted from the photographs (Annexure C-9). The complainants issued legal notice dated 3.6.2015 (Annexure C-10) to the Opposite Parties to fix a mutual date/time to visit the site in question to determine and resolve issues qua leveling and infrastructure but no reply was     received.  The Opposite Parties sent threatening and intimidating demand letters/reminders (Annexure C-11 Colly.) to the complainants qua penal charges @18%-24%. Although the complainants had made the complete payment towards the sale consideration as per demand of the Opposite Party, the work at the site had been slowed down to snail pace. The Opposite Parties also issued demand notices qua maintenance charges in the name of Facility Plus Estate Management Pvt. Ltd., @Rs.2.50 per sq. yard., without any development and basic amenities in the area (Annexure C-12).

4.           It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties to give possession of the plot, in question, complete in all respects and free from all defects; pay penal interest @12% per annum on Rs.35,35,200/- from 11.12.2010 to 09.04.2012 for delayed execution of allotment letter; interest @12% per annum on Rs.75,79,893/- from 09.10.2013 till possession is delivered; issue valid completion certificate as required under Punjab Apartment and Property Regulation Act, 1995; complete all development and infrastructural requirements; correct the statement of final dues and clear all payments due to the complainants up-till actual and complete possession; refrain from taking any coercive measures qua the allotment of the complainants and charge any penal interest on the full and final amount demanded; pay Rs.3,00,000/-  as compensation on account of inconvenience, mental harassment and damages suffered due to deficiency of service on the part of the Opposite Parties and Rs.50,000/- as litigation expenses.

5.           The Opposite Parties, in their written statement, filed by way of affidavit of Sh. Dheeraj Sharma, its Officer, stated that as per Clause 24(a), mentioned in the allotment letter, the Opposite Parties were to put their best efforts to complete the construction/development of the plot/project within 18 months or within an extended period of six months from the date of signing of the allotment letter, subject to force majeure conditions. It was stated that the present complaint was filed on 10.08.2015 (in-fact 12.08.2015) whereas the Opposite Parties had already intimated to the complainants on 9.4.2015 that they are ready to handover physical possession of the plot. It was stated that it were the complainants, who did not turn up to complete the necessary formalities and instead of taking possession of the plot, filed the present complaint. It was further stated that a reminder was sent to the complainants on 25.05.2015 to take over possession and requested to make full and final payments and get the sale/conveyance deed registered in their name. It was further stated that it was clearly mentioned in the allotment letter that no claim by way of damages/compensation shall lie against the Company in case of delay in handing over possession. It was further stated that the residential plot offered has been ready in all respects as per the terms and conditions of the statements duly executed between the parties. It was further stated that the complainants have to complete the necessary formalities and take over possession of the plot, in question. Receipt of Rs.22,50,000/- by the Opposite Parties on 11.12.2010 has been admitted. It was further stated that Rs.80,000/- demanded were with regard to club cost of Rs.50,000/- and Rs.30,000/- as interest free maintenance cost. It was further stated that as per Clause 2 of the terms and condition of the application form, the allotment was entirely at the discretion of the Company. It was stated that the allotment letter was executed on 09.04.2012. It was further stated that vide letter dated 13.5.2013 (Annexure C-7), the complainants were informed to fix a meeting with the representative of the Opposite Parties so that all the documents as desired by them could be made available for their perusal. It was further stated that the complainants were duly contacted on telephone and were asked to come to resolve all the concerned issues raised in the legal notice, but to no avail. It was further stated that the Opposite Parties were neither deficient, in rendering service nor they indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

6.         The complainants, in support of their case, submitted their joint affidavit, by way of evidence alongwith a number of documents.

7.         The Opposite Parties, in support of their case, submitted affidavit/reply of Sh. Dheeraj Sharma, its Officer, alongwith a number of documents, by way of evidence. 

8.         We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

9.         It is evident on record that the complainants applied for a plot in ‘Omaxe Chandigarh Extension’ vide application dated 6.12.2010 and deposited Rs.22,50,000/- vide cheque dated 11.12.2010 (Annexure C-1). As per details of residential plot (Annexure –A) & [Annexure – B (Part – II)] (Pages 73 & 74 of the file), basic sale price of the plot, in question, was Rs.79,36,729.92 and besides, Rs.50,000/- and Rs.30,000/- were payable on account of additional cost and Maintenance Security respectively. It is also evident from Annexure-B (Part – III) (Page 75 of the file) that the complainants opted Plan B: Additional Discount Payment Plan, which is extracted hereunder:-

ADDITIONAL DISCOUNT PAYMENT PLAN
At the time of Booking	25% of BSP
At the time of Allotment	15% of BSP
Within 30 days of Allotment	55% of BSP + 50% of Additional Cost + 100% of PLC (if Any)
On offer of possession	5% of BSP + 50% of Additional charges + Stamp Duty + Registration Charges + Other Costs (if any).

 

The complainants deposited another sum of Rs.12,85,200/- on 27.6.2011, demand for which was raised by the Opposite Parties vide their letter dated 25.5.2011 (Annexure C-2). The provisional allotment was made by the Opposite Parties vide letter dated 24.10.2011 and complainants made payment of Rs.40,44,693.43 (Annexures C-3 & C-4). Thereafter, the complainants signed and submitted allotment agreement to the Opposite Parties on 03.12.2011 and the Opposite Parties issued allotment letter dated 09.04.2012 (Annexure C-6). As per Clause 24(a) of the allotment letter, development of the plot/project was to be completed within 18 months or within an extended period of six months, from the date of signing of the allotment letter, subject to force majeure conditions. It is also evident that the complainants, made 95% payment towards price of the plot to the tune of Rs.75,79,893.43 during December, 2010 till November, 2011 (Annexure C-4). Clearly, the complainants made 95% payment towards the price of the plot, in question, well in accordance with the payment plan opted by them.

10.       The first question, which falls for consideration, is, as to whether there was delay in offering possession of the plot, in question, and if so, to what extent. The complainants signed and submitted allotment/agreement on 3.12.2011 but allotment letter (Annexure C-6) was issued on 09.04.2012 after delay of four months. This delay was detrimental to the interest of complainants. As per Clause 24(a) of the allotment letter, the Opposite Parties were to complete the construction/development of the plot/project within 18 months or within an extended period of six months from the date of signing of the allotment letter, subject to force majeure conditions. Since allotment letter is dated 9.4.2012, by computing 18 months plus 6 months period, the Opposite Parties were bound to deliver possession of the plot, in question, by 09.04.2014. However, since four months delay in issuing allotment letter is clearly attributable to the Opposite Parties, in all fairness, 18+6 months period for possession has to be computed from 3.12.2011 when the complainants signed the allotment agreement and submitted the same to the Opposite Parties on 3.12.2011. It has been submitted by the Opposite Parties that possession was offered vide letter dated 09.04.2015 (Annexure C-8) but the complainants neither deposited the balance payment nor came forward to take possession. It is noted from letter dated 09.04.2015 (Annexure C-8) that the complainants were asked to complete the payment formalities due as per Annexure–A within 15 days from the date of dispatch. It was also specified in the aforesaid letter that the moment full and final payment was received, physical possession would be handed over. The demand raised vide the aforesaid letter was to the following effect:-

 

PARTICULARS	AMOUNT (In Rs.)
A) (I) Net Basic Sale Price	79,36,729.92
(II) ADDITIONAL
Club Cost	50,000.00
Interest Free Maintenance Security	30,000.00
(III) Other Cost
Infrastructure Cost/Cess (Levy by Govt.)	1,02,983.52
Power Backup Equipment Cost-1	1,00,000.00
Electrical Sub-Station Cost	49,792.03
Dual Source Energy Meter & Prepaid Metering System Cost (418.61-598 Sq.Yad)	28,050.00
Utility Cost	12,000.00
Total (I+II+III)	83,09,555.47
B) Interest on account of delayed remittance	0.00
Grand Total (A+B)	83,09,555.47
C) Received Amount	75,79,893.43
Balance Due (A+B-C)	7,29,662.04
Service Tax	0.00
GRAND TOTAL	7,29,662.04

 

11.       The Counsel for the complainants submitted that claim of Opposite Parties, as is evident from the contents of Paras 1 to 3 of letter dated 09.04.2015 (Annexure C-8) (extracted hereunder), was highly incorrect:-

“First, we want to congratulate you for becoming owner of a beautiful piece of land amidst Punjab’s greenest tree-line and one of the most beautiful skylines.

 

While you were raising your dreams in your imagination, we simply made sure to realize them as quickly and beautifully as promised. Therefore, we are as eagerly waiting to give you the prized possession of your plot as you are. A simple sign of it is the rapid construction of the round-about, completion of the grand and long awaited Club Aura in its last phase, birds already making way to the Dew & Rainbow Parks, finishing touch being given to the Oasis-the 7 acre park, and the commercial complexes coming soon.

 

So, while we thank you for making us a part of your dreams, it gives us immense pleasure in informing you that just one formality is all that keeps you away from the possession. All you need to do is to complete the payment formalities due as per the Annexure – A of this letter within 15 days from the date of dispatch. In addition, the moment we receive the full and final payment in compliance with the other formalities, we will be more than happy to hand you over the physical possession of your dream land. This means, the execution and registration of Sale/Conveyance deed of the said plot will be made in your favour.”

 

12.       The contents aforesaid clearly reveal that by no stretch of imagination, it can be said that possession to the complainants was offered vide the aforesaid letter. The complainants had already made payment in the sum of Rs.75,79,893.43 well in time without any default on 6.12.2010 (Rs.22,50,000), 27.5.2011 (Rs.12,85,200), 4.11.2011 (Rs.40,44,693). It is not the case of the Opposite Parties that there was any delay in making aforesaid payment by the complainants. On receipt of aforesaid letter, the complainants vide legal notice dated 03.06.2015 (Annexure C-10), sent to the Opposite Parties through registered speed post, pointed out that possession was not delivered to them as per period stipulated in clause 24(a) of the allotment letter/agreement and even after the extended period of six months, as per terms of the allotment letter. No justification for extension of 6 months period is in evidence. As per the complainants, the development of the plot, in question, is not still complete and complete legal possession has not been offered. It has been stated that provision of water, electricity and sewerage did not exist and even site of plot, in question, is 8 feet below road level. The Opposite Parties did not respond to the legal notice aforesaid. On the face of aforesaid facts and in the absence of placing on record any cogent evidence that the amenities at the site were complete, averment of the complainants that development and amenities were not complete has to be accepted. Had the amenities been completed at the site, then certainly the Opposite Parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed, on record, their reports, to prove that factum. Thus, there has been delay in offering possession, which was due on 03.12.2013 (computing 18 months + 6 months from 3.12.2011 when complainants signed and submitted allotment agreement to the Opposite Parties). The aforesaid delay is clearly attributable to the Opposite Parties.

13.       The question, which now falls for consideration, is, whether the complainants are entitled to interest for delayed possession. The hard earned money of the complainants remained with the Opposite Parties and besides delay in executing allotment letter, possession was delayed beyond the period stipulated in the allotment letter. It is evident from record that the complainants made payments in time. The complainants are, therefore, entitled to interest for the period from 03.12.2013 till handing over of actual, complete and legal physical possession of the plot, in question, @12% per annum [in the event of delayed payment due or payable by the allottee, in terms of Clause 14 of the allotment letter, the Opposite Parties charge penal interest @18% per annum on the amount outstanding up-to one month delay from the due date of outstanding and @24% per annum thereafter on all outstanding dues from their respective due dates.]

14.       The next question, which falls for consideration, is as to whether the demand raised by the Opposite Parties to the tune of Rs.7,29,662.04 vide statement of account dated 09.04.2015 is justified or not. The complainants have not challenged the demand of Rs.7,29,662.04, in their complaint, and no relief for quashing the aforesaid demand has been sought. They have stated that amenities are not complete, completion certificate has not been obtained, and possession offered is not legal and complete. Since possession offered was not legal and complete, the complainants were not liable to pay the aforesaid amount, on receipt of letter dated 9.4.2015. When complainants without any default made 95% of payment viz. Rs.75,79,893/-, they would not hesitate to make balance 5% payment provided the possession offered is legal and the amenities complete. In this view of the matter, the complainants are liable to pay the balance amount of Rs.7,29,662.04 to the Opposite Parties when legal and complete possession after completion of development and amenities of the plot, in question, is offered by the Opposite Parties. 

15.       The next question, which falls for consideration, is, as to whether the complainants are entitled to compensation for mental agony and physical harassment on account of delay in handing over possession of the plot, in question. Clearly, the complainants made 95% payment of the plot, in question, (Rs.75,79,893.43), during the period December, 2010 to November, 2011 much prior to execution of allotment letter. The allotment letter/agreement duly signed was submitted to the Opposite Parties on 3.12.2011 but the Opposite Parties executed and issued the same on 9.4.2012 after delay of about four months. Despite deposit of huge sum of Rs.75,78,893.43Ps, the complainants were not offered possession of the plot, in question, by the Opposite Parties within the stipulated period of 18 months and even by availing 6 months extended period. The Opposite Parties cannot be allowed to take benefit of delay caused in executing and issuing allotment letter. It is not the case of the Opposite Parties that the delay was on account of force majure conditions. The Opposite Parties were clearly deficient in rendering service and indulged into unfair trade practices. The complainants, thus, underwent immense mental agony and physical harassment for which, they are entitled to compensation. In our considered opinion, compensation in the sum of Rs.2,50,000/-, if granted, shall meet the ends of justice.

16.         No other point, was urged, by the Counsel for the parties.

17.       For the reasons recorded above, the complaint is partly accepted with costs against the Opposite Parties, in the following manner:-

1. The Opposite Parties shall hand over the legal physical possession of the plot, in question, complete in all respects, after obtaining completion certificate, within a period of three months, to the complainants, from the date of receipt of a certified copy of this order.
2. The complainants shall deposit the balance amount of Rs.7,29,662.04Ps, with the Opposite Parties within a period of two months from the date of receipt of a certified copy of the order.
3. The Opposite Parties shall execute the sale/conveyance deed and get it registered in the name of the complainants after handing over the actual physical possession of plot, in question, as per direction in Clause (i), above, within a period of three months thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.
4. The Opposite Parties are further directed to pay interest @12% per annum on Rs.75,79,893.43  to the complainants from 03.12.2013 till 31.01.2016, within a period of one month from the date of receipt of a certified copy of the order, failing which, it shall carry penal interest @15% per annum from the date of default till actual payment.
5. Interest @12% per annum, as directed in Clause (iv) above, accruing w.e.f. 01.02.2016 onwards till handing over of actual physical possession of the plot, in question, shall be payable by the Opposite Parties at the time of handing over of possession, to the complainants, failing which the same shall carry penal interest @15% per annum for the entire defaulted period.
6. The Opposite Parties are further directed to pay Rs.2,50,000/- (Rupees Two Lac Fifty Thousand Only) to the complainants as compensation for mental agony and physical harassment within a period of one month from the date of receipt of a certified copy of the order, failing which, the same shall carry interest @12% per annum from the date of default till actual payment.
7. The Opposite Parties are further directed to pay Rs.50,000/- to the complainants as cost of litigation, within a period of one month from the date of receipt of a certified copy of the order, failing which, the same shall carry interest @12% per annum from the date of default till actual payment.

18.       Certified Copies of this order be sent to the parties, free of charge.

19.       The file be consigned to Record Room, after completion.

Pronounced.

February 02, 2016.

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER