Chandigarh

StateCommission

CC/113/2016

Divanshu Jain - Complainant(s)

Versus

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

Vipul Dharmani

25 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        U.T., CHANDIGARH

 

Complaint case No.	:	113 of 2016
Date of Institution	:	22.03.2016
Date of Decision	:	25.07.2016

 

1. Divanshu Jain S/o Sh. Narinder Kumar Jain.

 

2. Rohini Jain d/o Sh. Narinder Kumar Jain, through its attorney Mrs. Shilpa Jain w/o  Sh.Divanshu Jain.

 

Both residents of House No.3034, Sector 21-D, Chandigarh.

                                                …… Complainants

                        V e r s u s

 

1. M/s Omaxe Chandigarh Extension Developers Private Limited, 10, Local Shopping Complex, Kalka Ji, New Delhi – 110019 (Corporate Office), through its Managing Director/Principal Officer. 

 

2. M/s Omaxe Chandigarh Extension Developers Private Limited, SCO 139-140, 1^st floor, Sector 8-C, Chandigarh, U.T. – 160008, through its Managing Director/Principal Officer.  

                                                ....Opposite Parties

 

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

            MR. DEV RAJ, MEMBER.

            MRS. PADMA PANDEY, MEMBER

 

Argued by:-     None for the  complainants.

Sh. Ashim Aggarwal, Advocater for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER.

              The facts, in brief, are that the complainants are the joint applicants and are brother and sister. It was stated that complainant No.2 duly appointed Mrs.Shilpa Jain, wife of Mr.Divanshu Jain as her lawful attorney and executed the General Power of Attorney dated 22.12.2015 (Annexure C-1).

2.         As per the commitments and promises made by the Opposite Parties, the complainants approached Opposite Party No.2 and registered for allotment of a residential plot measuring 300 sq. yards in the proposed residential project “Chandigarh Extension”. It was further stated that the complainants opted for Down Payment Plan carrying additional discount, 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 alloment and finally residual payment of 5% of BSP was to be paid at the time of possession only. The complainants submitted an application form dated 29.12.2010 and also paid an amount of Rs.12,15,000/- as booking money vide two cheques, at the time of booking. Copies of the application form and receipt are Annexure C-2 & C-3. It was further stated that the Opposite Parties demanded all the payments i.e. 95% of the total amount, prior to the signing of the allotment letter. It was further stated that an amount of Rs.97,200/- was also to be adjusted on account of the payment made as property dealer commission, as is evident from the letter (Annexure C-4). It was further stated that the complainants made the total payment of Rs.46,82,675/- vide receipts (Annexure C-5 colly.), in respect of the plot, in question. It was further stated that the Opposite Parties despite receipt of 95% of the total BSP amount, failed to allot any residential plot to the complainants and also failed to execute Allotment/Contract. However, finally on 03.01.2013 i.e. after receipt of 95% of BSP, the complainants received the complete copy of allotment letter i.e. after the delay of more than 2 years from the submission of application form. Copy of the allotment letter/contract dated 03.01.2013 is Annexure C-6. It was further stated that the said act of demanding and receiving the payments before allotment is totally contrary to the down payment plan opted by the complainants and is even contrary to the contents of both letters dated 16.12.2011 and 18.01.2012 (Annexures C-7 & C-8), even when the allotment was made on 03.01.2013. As per Clause 24(a) of the allotment letter/contract, the Opposite Parties were under legal obligation to deliver possession of the plot to the complainants within 18 months or within an extended period of six months from the date of signing of the allotment letter i.e. the possession was to be given latest by 03.06.2014. It was further stated that firstly, the Opposite Parties intentionally delayed the execution of allotment letter for more than two years and secondly, now even after the expiry of stipulated period, mentioned in the allotment letter, the Opposite Parties failed to handover possession at the site. Thereafter, the complainants approached the office of the Opposite Parties many a times seeking possession of the said plot, but no satisfactory reply was received. It was further stated that the complainants received a letter dated 26.08.2014 (Annexure C-9) from the Opposite Parties stating that they had made certain changes in the tentative allotment plan and accordingly in lieu of already allotted plot No.446P having area of 301.38 sq. yards, they reallotted plot No.446CM5 having area of 302.40 sq. yds. It was further stated that the Opposite Parties before making any changes in the allotment, never intimated the complainants about the changes and unilaterally changed the area as well as plot number and location, which amounted to deficiency in service and unfair trade practice on behalf of the Opposite Parties. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

3.         The Opposite Parties, in their joint written version, have specifically taken an objection as regards existence of Arbitration clause in the Agreement and for referring the matter to the Arbitrator by moving a separate application under Section 8 of Arbitration and Conciliation Act, 1996. It was stated that the complainants did not fall within the definition of “Consumer” as defined under Section 2(d) of the Consumer Protection Act, 1986 because the complainants already have house in Sector 21, Chandigarh and complainant No.2 is residing outside India, as such, they purchased the plot for investment purpose. It was further stated that it is well settled principle of law that in cases of sale of immovable property and construction, time is never regarded as the essence of the contract. Thus, the complainants are not entitled to claim possession within any time bound manner, as the same would amount to specific performance of the contract. It was further stated that there was no definitive agreement stating that possession would definitely be delivered within 18 months or extended period thereof. It was further stated that the complainants after satisfying themselves about the project and agreeing to the terms and conditions of allotment, applied for the plot in the said project. It was further stated that the net basic sale price at the time of booking and allotment was Rs.47,84,689.81, as is clear from Annexure A to the Agreement and Annexure C-7. The additional amount of Rs.80,000/- was on account of club membership charges and maintenance security, which were duly mentioned in the Agreement. It was further stated that all the payments were demanded in accordance with the terms agreed between the parties. It was further stated that the complainants vide letter dated 25.05.2011 (Exhibit OP/2) were informed regarding the allotment of the plot and requested to make payment. Thereafter, draw of lots were held and the complainants were allotted plot bearing No.446P vide letter dated 12.12.2011 (Exhibit OP/3). The Opposite Parties forwarded the Agreement vide letter dated 21.01.2012 (Exhibit OP/4) and the delay, if any, in execution of the Agreement, is solely of the complainants and cannot be attributable to the Opposite Parties. It was further stated that no grievance in this regard was ever raised by the complainants. It was denied that the allotment was made on 03.01.2013 and stated that the complainants vide letter dated 25.05.2011 were informed regarding the allotment of the plot and were allotted plot bearing No.446 P vide letter dated 12.12.2011. It was further stated that Agreement dated 03.01.2013 is only the formal acceptance of terms and conditions by both the parties. It was further stated that as per Clause 24(a) of the allotment letter, efforts was to be made to complete the development of the plot. It was denied that the Opposite Parties deliberately delayed the execution of the allotment letter. It was further stated that the complainants were re-allotted plot No.446 CH5, as it was in their best interest. It was further stated that Clause 3 of the Agreement clearly provides that the Company may effect such variations, additions, alterations in the layout plan as may be necessary or deemed appropriate in the best interest of the project. It was further stated that the necessary changes/alterations may involve change in position/location, including change in dimensions, area or number etc. of the said plot and such changes deemed necessary by the Company or its Architects would be final and binding on the allottee. It was further stated that no definite promise was ever made by the Opposite Parties regarding possession as per terms 24(a) of the Agreement. It was further stated that development work is being expedited in the area, where plot of the complainants is located and the same should be handed over upon completion of all works. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

4.         The Parties led evidence, in support of their case.

5.         Since none has come present on behalf of the complainants to argue the matter on 01.07.2016, we have heard the Counsel for the Opposite Parties, and have gone through the evidence and record of the case, carefully. 

6.         Admittedly, the complainants submitted application form (Annexure C-2) and paid the booking amount of Rs.12,15,000/-. It is also the admitted fact that the complainants paid an amount of Rs.45,85,475.86 in respect of the plot/unit, in question, as is evident from the statement (at page No.29 of the file). It is also evident from Annexure C-4 that the complainants paid an amount of Rs.97,200/-, which adjusted towards property dealer’s commission. It is also evident from Annexure C-6 that allotment letter dated 03.01.2013 for residential plot in township project “Omaxe Chandigarh Extn” was issued to the complainants.

7.         The first question that falls for consideration is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

8.         To defeat claim of the  complainants, another objection was raised by Counsel for the Opposite Parties, that the complainants are already having house in Sector 21, Chandigarh and complainant No.2 is residing outside India, as such, they are investors and purchased the plot for investment/speculation purposes i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of ‘consumer’, as defined in Section 2 (1) (d) (ii) of the Act. After going through the documents and record of the case, we do not find any merit in the contention of Counsel for the Opposite Parties because the complainants have specifically mentioned in para No.3 of their complaint that complainant No.1 being a practicing Advocate at Hon’ble Punjab and Haryana High Court was in dire need of an accommodation near the High Court premises, which suffices his residential needs as well as that of study and library rooms. If the plea of the Opposite Parties is accepted that complainant No.2 is residing outside India, then she is also a consumer. Not only this, if complainant No.2 is NRI, then she is also a consumer, as per the judgment passed by the Hon'ble National Commission, in a case titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016. 

            It may be stated here that there is nothing, on the record to show, that the complainants are the property dealers, and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by Counsel for the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Counsel for the Opposite Parties, therefore, being devoid of merit, is rejected.

9.         With regard to the objection taken by the Opposite Parties, in their written statement that the time was not the essence of the contract, it is stated that as per Clause 24(a) of the allotment letter dated 03.01.2013 (Annexure C-6),  the Opposite Parties were to deliver possession within 18 months from the date of signing of the allotment letter or within an extended period of 6 months, subject to exclusion of Sundays, government holidays etc. Once a specific period with regard to delivery of possession has been mentioned in the aforesaid clause, in that event the Opposite Parties cannot be said that time was not the essence of the contract.  The time was, thus, unequivocally made the essence of contract. The plea taken by the Opposite Parties, in their written statement, thus, being devoid of merit, must fail, and the same stands rejected.

10.        The  next question, which falls for consideration, is as to when the allotment letter was issued in favour of the complainants.  In their written statement, the Opposite Parties stated that the complainants vide letter dated 25.05.2011 were informed regarding the allotment of the plot and were allotted plot bearing No.446 P vide letter dated 12.12.2011 (Exhibit OP-3) instead of allotment letter dated 03.01.2013. According to the complainants, the allotment letter was issued and signed by them on 03.01.2013 (Annexure C-6) and the date of possession start from 18 month or within the extended period of 6 months from the date of signing of the Agreement, as is evident from Clause 24(a) of the allotment letter. A bare perusal of letter dated 25.05.2011 (Exhibit OP-2) clearly reveals that on the said letter, it was not even mentioned the name of the officer/official, who sent the said letter to Mr.Divanshu Jain, complainant No.1. Another letter dated 12.12.2011 (Exhibit OP-3) placed on record by the Opposite Parties clearly reveals that the same was sent to Mr.Divanshu Jain, complainant No.1, through courier but they (Opposite Parties) failed to place on record any courier receipt which could show that the said letter was accepted by the complainant(s).  If the plea of the Opposite Parties is accepted that the allotment letter was issued vide letter dated 12.12.2011, then what was the need to issue the allotment letter dated 03.01.2013 (Annexure C-6) alongwith terms and conditions to the complainants. So, it is clearly proved that the allotment letter was issued by the Opposite Parties and the same was signed by the complainants on 03.01.2013. 

11.        The next question, which falls for consideration, is as to whether within which period, the possession of the unit, in question, is to be delivered to the complainants. It is evident from record that allotment letter (Annexure C-6) was issued on 03.01.2013. Clause 24(a) relating to possession reads as under:-

“24(a) The Company shall put its best efforts to complete the development of the Plot/Project within 18 (Eighteen) months or within an extended period of six months from the date of signing of this Allotment Letter by the Allottee(s), subject to force majeure conditions [as mentioned in clause (b) hereunder] and subject to various Plot Allottee(s) making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company  in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said plot to the Allottee(s). The aforesaid period of development shall be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body.”

 

            Thus, computing 18 months period from the date of signing of the allotment letter i.e. 03.01.2013 (Annexure C-6), the possession was to be delivered by 03.07.2014. As per aforesaid clause, another extended period of six months subject to force majeure, was available to the Opposite Parties to hand over possession. At the time of arguments, Counsel for the Opposite Parties stated that period was to be computed by excluding Sundays, Bank Holidays, enforced Govt. holidays and the days of cessation of work at site in compliance of order of any Judicial/concerned State Legislative Body and a period of around five months was on this account. Apparently, for seeking six months extension beyond 18 months, the Opposite Parties owes an explanation, if the delay was on account of force majure conditions but nothing by way of cogent evidence to this effect has been placed on record. It is pertinent to note that the Opposite Parties were to deliver possession within 18  months from the date of signing of the allotment letter or within an extended period of 6 months, subject to exclusion of Sundays, government holidays etc., and the said issue was already decided vide order dated 10.06.2016 by this Commission in Complaint Case No.311 of 2015 titled as Shellender Singh Vs. M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd., wherein, it was decided that when no explanation for extension of six months period has been furnished, the Opposite Party at the most could be allowed one out of the two benefits i.e. either six months extension beyond 24 months or five months period on account of Sundays/Holidays etc. In view of the aforesaid order passed by this Commission, we are of the view that the possession is to be delivered within 18 months + 6 months i.e. maximum period of 24 months from the date of signing the allotment letter and the said period of 24 months has calculated from 03.01.2013, as such, the said period expired on 02.01.2015. So, it is clearly proved that possession of the said floor was to be delivered by the Opposite Parties latest by 02.01.2015.

12.        The  next question, which falls for consideration, is as to whether what amount was deposited by the complainants. As per the complainants, they have deposited an amount of Rs.46,82,675/-. According to the Opposite Parties, the complainants deposited an amount of Rs.45,85,475.86. The plea of the complainants that they deposited an amount of Rs.46,82,675/- is not acceptable, at all , because they added the amount of Rs.97,200/- (Annexure C-4), which was given towards property dealer share in the deposited amount of Rs.45,85,475.86.  So, it is clearly proved from the statement (at page No.29 of the file) that the complainants deposited an amount of Rs.45,85,475.86.  

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 possession has been delayed beyond 18 + 6 months period stipulated in the allotment letter, for more than  1½ years. It is evident from record that the complainants made payments before the allotment letter dated 03.01.2013 was issued, as such, they are, therefore, entitled to interest, from the deposited amount, for the period from 02.01.2015 till handing over of actual and complete physical possession of the unit, 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, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for a long number of years, by not delivering physical possession of the unit to them, by the Opposite Parties, by the stipulated period of 18 months mentioned in the allotment letter or extended period of 6 months i.e. latest by 02.01.2015. The complainants purchased the plot, with the hope to have a roof over their head alongwith with their family members but their hopes were dashed to the ground. Even the possession of plot, in question, was not delivered to the complainants, till date i.e. even after the expiry of a period of more than about three years, from the date of signing the allotment letter and more than  about 1 ½ years, from the stipulated date (02.01.2015), by the Opposite Parties, what to speak of delivery thereof. Moreover, the Opposite Parties unilaterally changed the area, plot number and location without intimation to the complainants. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. Compensation, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.3 lacs, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.3 lacs.

15.        For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner. The Opposite Parties are jointly and severally are directed as under :-

(i)    To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, as per the terms and conditions of the Agreement, to the complainants, within a period of four months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against them.

(ii)    To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc. by the complainants.

(iii)   To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 02.01.2015 to 31.07.2016, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.

4. To pay fine/compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.08.2016, onwards (per month), by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made. This amount of penalty shall be paid in this manner till actual delivery of possession. 
5. To pay compensation, in the sum of Rs.3 lacs, on account of mental agony and physical harassment, caused to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

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

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

Pronounced.

July 25, 2016.                                                                                                                                        Sd/-

                                              [JUSTICE JASBIR SINGH (RETD.)]

                                                                                [PRESIDENT]

                                                                                        Sd/-

 

                                                                                [DEV RAJ]

                                                                                 MEMBER

 

                                                                                        Sd/-

        (PADMA PANDEY)

                                                                                 MEMBER

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