Chandigarh

StateCommission

CC/53/2020

Col. Baljit Singh Ghotra - Complainant(s)

Versus

m/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Saksham Arora & Sateekshan Sood Adv.

23 Jun 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	53 of 2020
Date of Institution	:	20.02.2020
Date of Decision	:	23.06.2022

 

1. Col. Baljit Singh Ghotra, Flat no.694, U.G.F, Omaxe Cassia Society, Punjab-140901.
2. Smt.Navjot Kaur Flat no.694, U.G.F, Omaxe Cassia Society, Punjab-140901.

…… Complainants

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, SCO 143-144, 1^st Floor, Sector 8-C, Chandigarh.
2. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director, India Trade Tower, 1^st Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar, Punjab -140901.
3. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Omaxe City, 11^th Mile Stone, Near Bad Ke Balaji Bus Stand, Jaipur-Ajmer Highway, Jaipur-302026.

…..Opposite parties.

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present:-              Sh. Saksham Arora, Advocate for the complainants.

Sh. Gazi Mohd. Ummair, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   The facts necessary for disposal of this complaint are that initially, on 11.03.2011, Ms.Leela Jain and Mr.Puneet Jain had booked a flat bearing no.694, Ground Floor, measuring 2200 square feet, in the project of the opposite parties named “Omaxe Cassia”, Mullanpur, Zone 2, Phase-3, New Chandigarh, SAS Nagar, Mohali. Allotment letter dated 29.03.2013, Annexure C-3 containing detailed terms and conditions was executed between Ms.Leela Jain and Mr.Puneet Jain and the opposite parties. Later on, the said unit was purchased in resale by Mr.Mohit Malhotra on 26.10.2013. Thereafter, the complainant purchased the said unit in resale from Mr.Mohit Malhotra on 13.05.2015. It has been stated that though as per clause 23 (b) of the allotment letter dated 29.03.2013, the opposite parties promised that possession of the unit will be delivered within a period of 24 months plus 6 months grace period, yet, they miserably failed to do so, for dearth of construction and development activities at the project site. It has been stated that after much persuasion, the opposite parties offered possession of the unit in question, vide letter dated 20.06.2018, Annexure C-6 but that too was incomplete, as the basic amenities to be provided, as promised vide brochure Annexure C-1, such as club house, parks etc. were not in existence at the project site. It has been averred that during one of the meetings held between the residents and the opposite parties, it was agreed to by the company on 23.12.2018, that it will charge only 50% of the monthly maintenance charges till all the amenities are provided at the project site. However, despite that, the opposite parties failed to provide the said amenities and on the other hand, started charging full maintenance charges. It has been pleaded that even the area of the unit was also arbitrarily increased from 2200 to 2400 square feet and also the ground floor unit was elevated on the stilts. Even lift has not been installed in the building where the unit is located.  It has been stated that during pendency of the dispute, though the parties entered into settlement dated 26.10.2018 in the matter, even then possession of the unit was not delivered to the complainants, complete in all respects. It has been further stated that complete physical possession of the unit was taken over only on 10.10.2019. It has been averred stated that number of requests were made by the complainants to the opposite parties to redress their grievances but to no avail. Hence this complaint.

2.           The opposite parties in their joint written reply while admitting factual matrix of the case with regard to purchase of the unit by the complainants in the manner stated in their complaint, took numerous pleas/objections as under:-
   1. that the complainants have concealed material facts from this Commission;
   2. the unit in question was purchased by the complainants for earning profits;
   3. that they being subsequent purchasers are not consumers  and that they have purchased the unit from open market;
   4. that the original allottees had satisfied themselves before purchase of the unit in question from the opposite parties;
   5. that vide undertaking dated 01.05.2015, the complainants undertook not to claim any compensation;
   6. that vide settlement deed dated 26.10.2018,  an amount of Rs.2 lacs towards delayed compensation stood paid to the complainants and also the delayed payment interest was waived of by the company, which fact stood concealed by the complainants;
   7. that the complainants are seeking compensation for the period of delay starting from 2013, whereas, the unit in question was purchased by them in the year 2015;
   8. that occupation certificate in respect of the unit in question was obtained on 02.04.2018, Annexure R-6 and possession  thereof was offered to the complainants vide letter dated 20.06.2018, Annexure R-7;
   9. that thereafter despite the fact that number of reminders were sent to the complainants to take over possession of their unit on making payment of  balance sale consideration but they lingered on the matter;
   10. that possession of the unit in question was taken over by the complainants without protest and are now taking bald grounds in their consumer complaint;
   11. that this complaint is bad for nonjoinder of original allottees;
   12. that this complaint is time barred; and
   13. that the unit in question was built-up on stilts in lieu of order of the  Punjab Government;
3.           On merits, it was admitted that during meeting held on 23.12.2018, it was agreed to by the company that the occupants would pay maintenance charges only to the extent of 50% till the date, all the basic amenities are provided at the project site. It has been stated that now all the basic amenities as promised have been provided at the project site and also the lift is operational in the tower in which the unit is located, as such, 100% of maintenance charges are to be paid by the complainants. Prayer has been made to dismiss complaint with exemplary cost.
4.           In the rejoinder filed, the complainants reiterated all the averments contained in their complaint and controverted those contained in written statement filed by the opposite parties.
5.           This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments.
6.           We have heard the contesting parties and have carefully gone through the entire record of the case, including the written arguments.
7.           First, we will deal with the objection taken by the opposite parties to the effect that the complainants did not fall within the definition of ‘consumer’ as they have purchased the unit in question to earn profits. It may be stated here that the objection raised is not supported by any documentary evidence and, as such, the onus shifts to the opposite parties to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of units’ for earning profits, as was held by the Hon’ble National Commission in Kavit Ahuja Vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. Thus, irrespective of the fact that possession is sought or refund is sought, it is mandatory for the party opposite who is  leveling such allegations, to prove the same (allegations) by placing on  record cogent and convincing evidence, which is found missing in this case. In this view of the matter, objection taken by the opposite parties stands rejected. 
8.           As far as objection taken by the opposite parties to the effect that the complainants being subsequent purchasers did not fall under the definition of consumer, it may be stated here that in the present case, there is no dispute that the complainants had purchased the unit, in resale, from the original owners. The sale transaction was endorsed by the opposite parties in favour of the complainants. It is well settled law that once the property is transferred/endorsed in the name of the buyer from the original owner, he/she (buyer) is vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she stepped into her/his shoes. The said objection also did not merit acceptance, in view of principle of law laid down by the Hon’ble National Commission in the case of Vatika Limited   Vs Mr. Rajneesh Aggarwal, Revision Petition No. 525 of 2013, decided on 22.07.2014, wherein the complainant was the fourth subsequent allottee and he was held to be a consumer. Relevant part of the said order is reproduced hereunder:-  

“So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and   purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs.”

In this view of the matter, objection taken by the opposite parties stands rejected.

9.           There is no dispute with regard to the fact that the complainants had purchased the unit in question, in resale, in the manner explained above, vide endorsement dated 13.05.2015. It is also not in dispute that as per clause 23 (b) of the allotment letter dated 29.03.2013, Annexure C-3, possession of the unit was to be delivered within a period of 24 months plus 6 months grace period i.e. latest by 28.09.2015. Thus, it is evident that when the unit in question was purchased in resale on 13.05.2015, still possession date had not expired. Under these circumstances, the complainants can reasonably expect that as per promise made vide clause 23 (b) of the allotment letter dated 29.03.2013, possession of the unit in question will be delivered latest by 28.09.2015. However, it was not done by the opposite parties. 
10.           Admittedly, occupation certificate in respect of the unit in question had been obtained by the opposite parties only on 02.04.2018 and possession was offered to the complainants on 20.06.2018, which was not taken over by them, on the ground that neither construction of the unit was complete nor basic amenities as promised vide brochure Annexure C-1 such as club house, shopping malls, hi-tech security, Olympic size swimming pool, banquet hall, gym, card room etc. were made available at the project site. Counsel for the complainants submitted that possession so offered vide letter dated 20.06.2018  was mere a paper possession and it was ultimately taken over on 10.10.2019. Whereas, on the other hand, Counsel for the opposite parties contended with vehemence that possession so offered was complete in all respects but the complainants lingered on to take over the same.

                   Under above circumstances,  the main question which falls for consideration is, as to whether, possession so offered to the complainants in respect of the unit in question, vide letter dated 20.06.2018, Annexure C-6 was complete in all respects or not? It may be stated here that the complainant has placed reliance on Minutes of Meeting dated 23.12.2018, Annexure C-14 held between the Officers of the opposite parties and also some of the residents of the project in question. Perusal of the said document clearly reveal that it has been in a very candid manner admitted by the opposite parties that basic amenities such as security, boundary walls, parks etc. have not been provided at the project site. In this document, the Officers of the opposite parties namely Mr.Bhupinder Singh, President, Omaxe Limited, Mr.Alok Thakur, Head Facility Plus and Mr.Deepak Aggarwal, Manager of Facility Plus have agreed that the said facilities will be provided in due course of time. In the said meeting, it was also committed by the opposite parties, in writing, that till the time, the basic amenities are not provided, the company will charge only 50% of the maintenance charges from the residents of the project in question. It is significant to mention here that in the written reply filed by the opposite parties, they have admitted this fact and did not deny the Minutes of Meeting dated 23.12.2018, Annexure C-14. Thus, in the face of candid admission of the opposite parties regarding the issues raised in the said minutes of meeting and the commitments made by the opposite parties in the document dated 23.12.2018, Annexure C-14, it can easily be said that possession so offered to the complainants vide letter dated 20.06.2018 was nothing but a paper possession. At the same time, it is also held that in the face of contents of the above said Minutes of Meeting, any settlement having been arrived at between the parties, especially, when it has been proved that actual physical possession of the unit was never offered to the complainants, has no significant value in the eyes of law.

11.           Be that as it may, it is coming out from the record and have also admitted by the complainants that complete physical possession of the unit in question was taken over by them on 10.10.2019. In this view of the matter, it is held that if the complainants are awarded compensation for the period of delay in delivery of possession of the unit in question from 28.09.2015 to 09.10.2019 that will meet the ends of justice.

                   Now the question that falls for consideration is, as to what amount of compensation, the complainants are entitled to get, for the period of delay in delivery of possession of their unit. It may be stated here that  recently under similar circumstances, the Hon’ble National Commission in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture Hubtown Sunstone, Consumer Case No. 12 of 2017, decided on 04 May 2022, has awarded interest @9% p.a. on the deposited amount, for the period of delay in delivery of possession of the unit. Relevant part of the said order reads as under:-

“…Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today…”

Similar view has been expressed by the Hon’ble National Commission in Shreya Kumar Versus M/s. Ansal Housing & Construction Ltd, Consumer Case No. 1021 of 2017, decided on 05 May 2022. In view of the observations made by the Hon’ble National Commission in the above noted cases, we are of the considered view that if we award simple interest @ 9% per annum on the entire amount paid by the complainants against their unit,  in the manner explained above, from the due date of possession till the date when possession thereof has been delivered to them, that will meet the ends of justice.

12.           Now we will deal with the objection taken by the opposite parties to the effect that this complaint is beyond limitation, it may be stated here that since it is an admitted fact that complete physical possession of the unit in question was delivered to the complainants on 10.10.2019, as such, if the period of two years are taken from the said date, after excluding the period from 15.03.2020 to 28.02.2022 plus 90 days,  in view of order passed by the Hon’ble Supreme Court of India in Suo Moto Writ Petition (Civil) No. 3 of 2020,  due to COVID 19, this complaint in no way could be said to be barred by limitation. As such, objection taken by the opposite parties in this regard stands rejected.
13.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-
    1. To pay compensation by way of interest @9% p.a. to the complainants on the entire amount paid by them against the unit in question, for delay in delivery of possession thereof, starting from the promised date i.e. from 28.09.2015 to 09.10.2019, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till realization. However, it is made clear that in case any compensation for the period of delay in offering possession stood paid to the complainants, the said amount shall be deducted from the amount of awarded compensation.
    2. To pay Rs.75,000/- as  compensation for mental agony and harassment and also Rs.35,000/- as cost of litigation, to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

14.           It is also made clear that the amount, if any, over and above 50% of the total maintenance charges, has been received by the opposite parties from the complainants till 10.10.2019, the same shall be adjusted in the forthcoming maintenance bills. Furthermore, the opposite parties are also directed to resolve the issue of electricity bills of the unit in question, as per the terms and conditions of the agreement/maintenance agreement executed in that regard and shall not disconnect the electricity meter of the said unit. However, the complainants shall also not default in making any payment to be made against actual consumption of electricity by them. With these directions applications bearing nos.734 of 2020 and 196 of 2021 stand disposed of.
15.           Certified copies of this order be sent to the parties, free of charge.
16.           The file be consigned to Record Room, after completion.

 

Pronounced.

23.06.2022

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 [RAJESH K. ARYA]

MEMBER

 Rg