Chandigarh

StateCommission

CC/915/2016

Deepesh Aggarwal - Complainant(s)

Versus

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

Anil Shukla & A S Kang, Adv.

01 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	897 of 2016
Date of Institution	:	08.12.2016
Date of Decision	:	01.05.2017

 

1. Dilip Goyal son of Sh.J.P. Goyal, resident of House No.28, Central Government Officers Residential Complex, Sector 38-A, Chandigarh.
2. Bindu Goyal wife of Dilip Goyal son of Sh.J.P. Goyal, resident of House No.28, Central Government Officers Residential Complex, Sector 38-A, Chandigarh.

…… Complainants

V e r s u s

1. Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.139-140, Sector 8C, Madhya Marg, Chandigarh, through its MD/Authorized Officer.
2. Omaxe Chandigarh Extension Developers Pvt. Ltd., Corporate Office:10, Local Shopping Complex, Kalkaji, New Delhi-110019, through its MD/Authorized Officer.

…. Opposite parties

Argued by:-      Sh.Anil Shukla,  Advocate for the complainants.

Sh.Sanjeev Sharma, Advocate for the opposite parties

=====================================================

 

Complaint case No.	:	915 of 2016
Date of Institution	:	14.12.2016
Date of Decision	:	01.05.2017

 

Deepesh Agarwal son of Sh.B.M. Agarwal, resident of House No.28, Central Government Officers Residential Complex, Sector 38-A, Chandigarh, presently R/o #78, Kanti Nagar, Gwalior (M.P.).

 

…… Complainant

 

V e r s u s

1. Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.139-140, Sector 8C, Madhya Marg, Chandigarh, through its MD/Authorized Officer.
2. Omaxe Chandigarh Extension Developers Pvt. Ltd., Corporate Office:10, Local Shopping Complex, Kalkaji, New Delhi-110019, through its MD/Authorized Officer.

…. Opposite parties

Argued by:-      Sh.Anil Shukla,  Advocate for the complainant.

Sh.Sanjeev Sharma, Advocate for the opposite parties

 

Complaints under Section 17 of the Consumer Protection Act, 1986

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both the complaints, the complainants are original purchasers of the plots and have sought refund of the amount deposited towards price of the units, respectively. At the time of arguments, on 06.04.2017, it was agreed by Counsel for the parties, that facts involved in the above complaints, by and large, are the same, and therefore, both the complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from consumer complaint bearing no.897 of 2016, titled as Dilip Goyal and another Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another. It is case of the complainants, that being allured by tall claims made by representative/agent of the opposite parties, they submitted expression of interest dated 07.01.2015, to purchase a plot, measuring 150 square yards, in their project namely ‘Omaxe City’, New Chandigarh, Mullanpur, Punjab. They also deposited an amount of Rs.5 lacs, through cheque of the even date, which was encashed by the opposite parties. Copy of expression of interest is at Annexure R-1. It was stated the opposite parties assured that possession of the plot will be delivered within 18 to 24 months, of moving expression of interest.  On further demand raised vide letter dated 18.02.2015 by the opposite parties, another amount of Rs.7,70,055.13Ps., was deposited by the complainants on 23.03.2015, vide receipt Annexure C-2. Total sale consideration of the plot was fixed at Rs.46,61,700/-. After receiving total amount of Rs.12,70,055.13ps., by the month of March 2015, when no positive response was received from the opposite parties, the complainants became suspicious. They visited the office of the opposite parties, many a times, for execution of the Buyer’s Agreement, however, nothing was done. Compelled under the circumstances, the complainants sent letter dated 12.09.2016 Annexure C-4 i.e. after waiting for about one and a half years, to the opposite parties, seeking refund of the amount paid. When no response was given by the opposite parties, legal notice dated 28.09.2016 Annexure C-5,  was served upon the opposite parties. However, without making any response to the averments made in the letter, referred to above, in the meantime, the opposite parties sent letter dated 16.09.2016, raising demand of an amount of Rs.4,11,625/-. On account of inaction on the part of the opposite parties, it was stated that the complainants have lost faith in the opposite parties and this complaint has been filed seeking refund of the amount paid, alongwith interest, compensation, litigation expenses etc.
3.         It was also mentioned in the complaint that prior to filing of the instant complaint, the complainants had filed consumer complaint bearing no.915 of 2016 before District Forum-II, U.T., Chandigarh, which was got dismissed as withdrawn, with liberty to file the same before the Competent Court/Commission.  Hence, this complaint.
4.         Upon notice, joint written reply was filed by the opposite parties, wherein, territorial and pecuniary jurisdiction of this Commission was challenged. It was pleaded that the complainants being investors, would not fall within definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.

                On merits, it was admitted that the complainants had moved an expression of interest, for purchase of the said plot, on making payment of Rs.5 lacs. It was also admitted that thereafter, another amount of Rs.7,70,055.13Ps., was demanded from the complainants, which was paid by them, on 23.03.2015 vide receipt Annexure C-2, totaling to Rs.12,70,055.13ps. Non execution of the Buyer’s Agreement could also not be disputed by the opposite parties,  with convincing evidence. It was stated that vide letter dated 16.09.2016, the complainants were asked to make further payment of Rs.4,11,625/-, so that their names could be included in the draw of lots, for allotment of plot, but they failed to do so. It was stated that the opposite parties are making earnest efforts to expedite development in the area, where plot of the complainants is located. It was further stated that in the case of sale of immovable property, time is never regarded as essence of contract. It was further stated that the complainants were defaulters, as they have not paid the demanded amount. It was stated that the broker, through whom the plot was purchased has not been made a party to the complaint. It was admitted that the payment made by the complainants to the broker, in respect of the plot, in dispute, was ultimately received by the opposite parties. It was further stated that the act of seeking refund of amount deposited, will amount to rescinding of contract and as such, in those circumstances, the amount paid by the complainants, should be refunded, after deduction/forfeiture, minus the brokerage charges. The remaining averments are denied, being wrong. It is prayed that the complaint having no substance, be dismissed.

5.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint, and repudiated those, contained in written version of the opposite parties.
6.         The contesting parties, in both the complaints, led evidence in support of their cases and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
7.         Before going into merits of the case, we would like to decide preliminary objection taken by  the opposite parties, qua lack of territorial jurisdiction of this Commission to entertain and decide this complaint. It may be stated here that perusal of letter dated 16.09.2016, Annexure R-6, regarding invitation for allotment of residential plot was issued by Chandigarh Office of the opposite parties, as it bears round stamp of the said Office/Company. Not only as above, even payment receipts placed on record also reveal that the same were issued by Regional office of the opposite parties at Chandigarh. Even the demand letter dated 18.02.2015 and 14.03.2015, Annexure R-5 colly., were issued by Chandigarh Office of the opposite parties, as it also bears round stamp of the Company. Since as per the documents referred to above, a part of cause of action, arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint.  Contention raised by Counsel for  the opposite parties, in this regard, being devoid of merit, is rejected.
8.         To defeat claim of the complainants, another objection was raised by Counsel for the opposite parties, that the complainants are investors, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. On the other hand, the complainants in para no.1 of their complaint have specifically averred that the plot, in question, was purchased by them, for their residential purpose. In the absence of any cogent evidence, in support of the objection raised by 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. 2016 (1) CPJ 31, 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,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties, in their written reply, therefore, being devoid of merit, is rejected.  
9.         Now we will like to deal with an objection raised by the opposite parties that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that according to Section 17 of the Act, the State Commission shall have jurisdiction to entertain the complaints, where the value of the goods or services and compensation, if any claimed, exceeds Rs.20 lacs but not exceeds Rs.1 crore. Recently also, similar view was taken by larger Bench of the Hon’ble National Commission, in a case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016.  Relevant portion of the said case reads thus:-

“ It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum.  The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.  Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction.  If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint.  For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum.  Similarly, if  for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. ”

 

In view of above, the total cost/value of the plot, in question, i.e. Rs.46,61,700/- plus compensation claimed by the complainants in the present case, if added, will definitely fall above Rs.20 lacs and below Rs.1 crore. As such, the plea of the opposite parties that the complainants are seeking refund of amount of Rs.12,70,055.13ps., only,  which is below Rs.20 lacs, as such, this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.

10.         There is no dispute that a plot was sold to the complainants in a project propagated and marketed by the opposite parties, on 07.01.2015, through expression of interest. On that date, an amount of Rs.5 lacs was received by the opposite parties. Another amount of Rs.7,70,055.13Ps., was also received by the opposite parties, on 23.03.2015. It is positive case of the complainants that despite the fact that they had paid substantial amount totaling to Rs.12,70,055.13ps., no positive response was received from the opposite parties, for more than one and a half years, as a result whereof, they visited their (opposite parties) office, many a times, for execution of the Buyer’s Agreement, however, nothing was done. This fact could not be rebutted by the opposite parties, either by way of their written reply or during arguments by their Counsel. It is well settled law that a builder is bound to get execute Buyer’s Agreement, the moment it receives 25% of the total sale consideration of the unit. In the present case, total sale consideration of the plot, in question, was fixed at Rs.46,61,700/-. The complainants were required to pay Rs.11,65,425/- (25% of Rs.46,61,700/-) to the opposite parties, so that Buyer’s Agreement could legally be got executed. However, it is very important to mention here that in the present case, by 23.03.2015, admittedly the complainants had paid Rs.12,70,055.13ps., i.e. more than 25% of the total sale consideration, but even then the Buyer’s Agreement was not even in sight, for next one and a half years or thereafter. When the complainants requested the opposite parties to do so, instead of executing Buyer’s Agreement, in a very arbitrary manner, further demand of Rs.4,11,625/- was made from the complainants. Above facts clearly goes to show that there was a material violation of the provisions of Section 6 of the Punjab Apartment and Property Regulation Act, 1995 (in short the PAPRA), by the opposite parties. The said provision reads thus:-

“6.(1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed for together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act no. 16 of 1908) ;”

 

11.         Not only as above, the opposite parties were required to execute Buyer’s Agreement on accepting application for purchase of plot, within a reasonable time say about two to three months and that too after receiving 25% of the total sale consideration. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-

“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated  23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two  to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.

 

12.         As such, by not offering Buyer’s Agreement, for signing, within a reasonable time aforesaid and even till date, despite receiving huge amount equal to 25% of the total sale consideration, the opposite parties indulged into unfair trade practice and are also deficient in providing service.
13.         No doubt, a plea was also taken by the opposite parties, that the complainants failed to make payment of Rs.4,11,625/- as demanded from them vide letter dated 16.09.2016, for including their names in the draw of lots. Because of failure on their part to make payment of the said amount, their names were not included in the draw of lots. The plea taken by the opposite parties, has no legs to stand. Not even a single document has been placed on record, to show that any such draw of lots, was ever conducted by the opposite parties, for any of the similar located allottees of the plots, in the said project. To substantiate their plea, the opposite parties were required to place on record, a copy of the list of the similar located allottees, other than the complainants, who were successfully allotted plots, in the said project, after conducting draw of lots but they failed to do so. In the absence of any document in that regard, an adverse inference can easily be drawn that no such draw was ever conducted by the opposite parties, and such a stand was taken by them, only with a view to wriggle out of the allegations made by the complainants.

                Even if for the sake of arguments (though not admitted and proved on record), such a stand of conducting draw of lots is taken as correct, even then the opposite parties were legally bound to hold the same (draw of lots), after receiving 25% of the sale consideration, and that too, within a reasonable period of about two to three months, referred to above, so that they are able to execute the Buyer’s Agreement, in the manner held above but they did not do so.

14.         Besides as above, even this much has not been able to prove that when the project in question was sold, all the necessary permissions/approvals were available with the opposite parties.  Not even a single document has been placed on record to prove that all sanctions have been obtained from the Competent Authorities, as far as the present project, is concerned. Application aforesaid was moved by the complainants on 07.01.2015 and now it is May 2017. The complainants had been left in lurch by the opposite parties, as a result whereof, they were forced to approach this Commission, seeking refund of the amount deposited. The dream of the complainants was shattered to the ground, on account of act and conduct of the opposite parties. Under above circumstances, it is held that the complainants are entitled to get refund of the amount deposited alongwith interest.

                For the said act and conduct of the opposite parties, they are also liable to compensate the complainants, for causing them mental agony and physical harassment.  

15.         It was argued by Counsel for the opposite parties that since it a case of surrender of plot, as such, let the opposite parties deduct 10% of the sale consideration, towards earnest money. The said argument raised is not justified. In the present case, admittedly the Buyer’s Agreement was not executed, as such, when no terms and conditions were binding between the parties, in respect of the sale in question, the question of imposing any deduction on the deposited amount, did not at all arise. \

                Even in the cases, where Agreement is executed, forfeiture Clause is made applicable only if it is proved that a builder was ready to deliver possession of the unit within the stipulated period, but the purchaser concerned, wants to rescind the contract, of his/her own, which is not the case of the opposite parties, in this complaint. As such, the plea taken by the opposite parties in this regard, stands rejected. It is therefore held that the complainants are entitled to get refund of the entire amount deposited by them, alongwith interest and compensation.

16.         No other point, was urged, by Counsel for the parties, in both the complaints.
17.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-

In consumer complaint bearing no.897 of 2016, titled as Dilip Goyal and another Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, the opposite parties jointly and severally are directed as under:-

1. To refund the amount of Rs.12,70,055.13ps., to  the  complainants, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.21,000/- (as prayed) to the  complainants.

In consumer complaint bearing no.915 of 2016, titled as Deepesh Agarwal Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, the opposite parties jointly and severally are directed as under:-

1. To refund the amount of Rs.9,75,783/-, to  the  complainant, alongwith interest @12% p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.21,000/- (as prayed) to the  complainant.

18.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in both the complaints, shall be made, within a period of two (2) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a. instead of @12%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of the respective complaints, till realization.
19.         However, it is made clear that, if the complainant(s) in any of the above complaints, have availed loan facility from any banking or financial institution, for making payment towards the said units, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
20.         Certified copy of this order, be placed on connected complaint file, referred to above.
21.         Certified copies of this order be sent to the parties, free of charge.
22.         The file be consigned to Record Room, after completion.

Pronounced.

01.05.2017

                                                                                        Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

 

 (PADMA PANDEY)

MEMBER

 Rg.

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	915 of 2016
Date of Institution	:	14.12.2016
Date of Decision	:	01.05.2017

 

Deepesh Agarwal son of Sh.B.M. Agarwal, resident of House No.28, Central Government Officers Residential Complex, Sector 38-A, Chandigarh, presently R/o #78, Kanti Nagar, Gwalior (M.P.).

 

…… Complainant

 

V e r s u s

1. Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.139-140, Sector 8C, Madhya Marg, Chandigarh, through its MD/Authorized Officer.
2. Omaxe Chandigarh Extension Developers Pvt. Ltd., Corporate Office:10, Local Shopping Complex, Kalkaji, New Delhi-110019, through its MD/Authorized Officer.

…. Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Sh.Anil Shukla,  Advocate for the complainant.

Sh.Sanjeev Sharma, Advocate for the opposite parties

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                Vide our separate detailed order of the even date, recorded in consumer complaint bearing no.897 of 2016, titled as Dilip Goyal and another Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, this complaint has been partly accepted with costs.

2.         Certified copy of the order passed in consumer complaint bearing No. 897 of 2016, shall also be placed on this file.
3.         Certified copies of this order, alongwith the main order passed in consumer complaint bearing No. 897 of 2016, be sent to the parties, free of charge.
4.         The file be consigned to Record Room, after completion.

 

Sd/-                         Sd/-                                         Sd/-

 

(DEV RAJ) MEMBER

(JUSTICE JASBIR SINGH (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

 

Rg.