STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Vimal Vinod Bansal S/o Hans Raj Bansal R/o Chander Lok, Mandi Gobindgarh, Distt. Fatehgarh Sahib.

……Complainant.

V e r s u s

1. M/s Omaxe Chandigarh Extension Developers Private Limited through its Branch Manager, Regional Office at SCO 139-140, Sector 8-C, Madhya Marg, Chandigarh.
2. M/s Omaxe Chandigarh Extension Developers Private Limited through its Managing Director, 10, Local Shopping Complex, Kalka Ji, New Delhi – 110019.
3. M/s Facility Plus Estate Management Private Limited, through its Managing Director, A-1/343-B, Lawrence Road, Delhi – 110035.

              .... 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. Rajesh Gupta, Advocate for the complainant.

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

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainant with a view to construct a house for his personal residence, agreed to purchase a residential plot measuring 500 Sq. Yard from Opposite Party No.1 by depositing Rs.22,50,000/- as booking money vide cheque dated 3.1.2011, as stated in copy of application form (Annexure C-1). He further deposited Rs.12,78,000/-  as part payment with Opposite Party No.1 vide cheque No.275 dated 29.6.2011 (Annexure C-3). He further deposited Rs.8,45,125/- i.e. (Rs.8,05,125/- towards part payment of plot and Rs.25,000/-  as Club Membership Fee and Rs.15,000/- towards IFMS) vide receipt dated 20.12.2011 (Annexure C-4). All the above cheques were cleared and payments were credited in the Bank Account of Opposite Party No.1. Opposite Party No.1 allotted Plot No.265-H, measuring 480.32 Sq. Yard (401.61 Sq. meters), to the complainant, at Omaxe Chandigarh Extn. vide allotment letter dated 9.1.2012 (Annexure C-5), which was signed by both the parties at Chandigarh. The total cost of the plot, in question, was Rs.46,41,185.88 i.e. Rs.45,61,185.88 as Basic Sale Price with additional cost of Rs.50,000/- and Rs.30,000/- towards maintenance security. As per the payment schedule, 25% of BSP was to be paid at the time of booking, 15% at the time of allotment, 55% of BSP + 50% of additional cost + 100% PLC, if any, within 30 days of allotment and remaining 5% + other charges at the time of offer of possession.

2.         According to the complainant, an amount of Rs.43,73,125/- stood already paid in advance before issuance of allotment letter to Opposite Party No.1, which deposits were not made part of the allotment letter. As per clause 24(a) of the allotment letter, possession of the plot was required to be given within 18 months i.e. on or before 9.7.2013 or within further extendable period of 6 months. As per the complainant, no exigency to use extendable clause up-to 9.1.2014 existed. Vide letter dated 18.9.2014 and account statement attached therewith, the total cost of the plot was finalized at Rs.49,28,021.67. In the absence of  any development work at the site and that too without providing basic amenities like drinking water, electricity, sewerage work, roads, parks, health care, community centre & schools, Opposite Party No.1 vide letter dated 18.9.2014 (Annexure C-6) informed the complainant that possession of the plot, in question, is ready and demand of Rs.6,07,878.67 was raised. This demand of Rs.6,07,878.67, as alleged, included illegal demand of interest for delayed remittance to the tune of Rs.52,982/- and the remaining Rs.5,54,896.70Ps  would become due at the time of offer of possession. Even the complainant orally offered to Opposite Party No.1 to deposit Rs.5,54,896.70, if it waived of the illegal demand of Rs.52,982/-. According to the complainant, as per allotment letter, 40% amount was to be paid at the time of allotment and 55% amount of basic price and 50% of additional cost was required to be paid within 30 days of allotment. The total price as per allotment letter was Rs.45,61,185.88 and its 95% came to be Rs.43,33,126.58 and 50% of Rs.80,000/- came to be Rs.40,000/-. As such, the total amount required to be paid was Rs.43,73,125/-, which stood already paid in advance before issuance of allotment letter.

3.         It was stated that possession of the plot, in question, is still not ready and basic amenities like water, sewerage and electricity are not there at the plot as on 7.9.2015, as per photographs (Annexure    C-7).  The illegal demand of interest of Rs.52,982/- stood accelerated to Rs.1,73,751/- by Opposite Party No.1 vide letters dated 18.11.2014, 17.12.2014, 21.1.2015, 17.2.2015, 31.3.2015, 18.4.2015, 21.5.2015, 25.5.2015, 27.6.2015, 27.7.2015 and 31.8.2015 (Annexures C-8 to C-18). The complainant gave representations dated 13.5.2015, 5.6.2015 and 7.7.2015 (Annexures C-19 to C-21) to Opposite Party No.1 but to no avail. Further, Opposite Party No.3 has imposed monthly maintenance charges @Rs.2.50 per sq. yard on plot and water charges @Rs.225/- per month per unit w.e.f. 1.7.2015, without any development and basic amenities in the area.

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 complainant, 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, in fully developed conditions i.e. by providing basic amenities and without making illegal demand of Rs.1,73,751/-, without charging maintenance and water charges, till actual date of possession of plot; pay compensation to the complainant by way of interest @15% per annum on the deposited amount of Rs.43,73,125/- from 1.7.2013; Rs.15 Lac towards escalation in cost of construction; Rs.6 Lacs for mental tension and agony suffered by the complainant and Rs.55,000/- 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 further stated that possession of the plot, in question, is complete in all forms and offer of possession was sent to the complainant on 18^th September 2014 and he was requested to clear all the dues. It was further stated that all the basic amenities are already there and the numbering of the plot was done long time back. It was further stated that no illegal demand was raised by the Opposite Parties and the demand of interest of Rs.52,982/- was raised because of not making payment by the complainant despite many reminders sent through registered post. It was further stated that the complainants never approached the Opposite Parties with this concern before and now raising false and frivolous allegations. It was further stated that there is no delay on the part of Opposite Parties No.1 & 2 in handing over the plot. It was further stated that all the basic amenities like sewerage, electricity, water facility and demarcation are already there. 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 complainant filed rejoinder by way of his own affidavit, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

7.         The complainant, in support of his case, submitted his own affidavit, by way of evidence alongwith a number of documents.

8.         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. 

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

10.       It is evident on record that the complainant was allotted a residential plot by Opposite Parties No.1 & 2 vide allotment letter dated 09.01.2012 (Annexure C-5). As per details of residential plot (Annexure –A) & (Annexure – B (Part – II) (Pages 49 & 50 of the file), basic sale price of the plot, in question, was Rs.45,61,185.88 and besides, Rs.50,000/- and Rs.30,000/- were payable on account of Club and Interest Free Maintenance Security respectively. It is also evident from Annexure-B (Part – III) (Page 51 of the file) that the complainant opted Plan B: Additional Discount Payment Plan, which is extracted hereunder:-

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 complainant, made 95% payment of price of plot as under:-

Total:     43,73,125.00

Clearly, the complainant made 95% payment towards the price of the plot, in question, well in accordance with the payment plan opted by him and in fact, some of the payments were made by him in advance.

11.       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. As per Clause 24(a) of the allotment letter, Opposite Parties No.1 & 2 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. The allotment letter is dated 09.01.2012 and by computing 18 months plus 6 months period, Opposite Parties No.1 & 2 were to deliver possession of the plot, in question, by 09.01.2014. It has been submitted by Opposite Parties No.1 & 2 that possession was offered vide letter dated 18.09.2014 (Annexure C-6) but the complainant neither deposited the balance payment nor came forward to take possession. Further, it has been averred by Opposite Parties No.1 & 2 in their reply that the complainant raised objection for the first time after lapse of eight months, vide his letter dated 13.5.2015, in which, he disputed the demand of Rs.52,982/- on account of interest on account of delayed payments. It is noted from letter dated 18.09.2014 (Annexure C-6) that the complainant was 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, possession would be handed over. The demand raised vide the aforesaid letter was to the following effect:-

12.       Vide letter dated 18.11.2014 (Annexure C-8), Opposite Parties No.1 & 2, inter-alia, informed the complainant as under:-

“Reference is invited to offer of possession dated 04-OCT-2014 in respect of said Plot, wherein we are requesting you to take over the possession of the aforesaid plot after making payment of full & final dues and completing the necessary formalities at your end.

We regret that despite our request, for taking-over possession of the aforesaid Unit after payment of outstanding amount and after completing the necessary formalities at your end, you are yet to shown any Interest to take-over possession of the allotted Unit. Please note that as per Clause 24(c) of the Allotment Letter, it is agreed by and between the parties as under:

Upon receiving a written intimation from the Company, the Allottee(s) shall within the time stipulated by the Company in the notice offering possession, take over possession of said Plot from the Company by executing necessary indemnities, Undertaking and such other documentation as the Company may prescribe and the Company shall after satisfactory execution of such documents and payment by Allottee(s) of all the dues permit the Allottee(s) to occupy and use the said Plot. If the Allottee(s) fails to take over the said Plot as aforesaid within the time limit prescribed by the Company in its notice, the said Plot shall lie at the risk and cost of the Allottee(s) and the Company shall have no liability or concern thereof. Further, in the event of his failure to take possession for any reasons whatsoever, he shall be deemed to have taken the possession of the said Plot on expiry of 30 days of offer of possession for the purpose of payment of maintenance charges or any other taxes, levies, outflows on account of the Plot or for any other purpose.”

13.       The letter dated 04.10.2014 has not been placed on record either by the complainant or the Opposite Parties. The complainant has himself placed on record Opposite Parties’ reminders viz. letters dated 17.12.2014, 21.01.2015, 17.02.2015, 31.03.2015, 18.04.2015, 21.05.2015, 25.05.2015, 27.06.2015, 27.07.2015 and 31.08.2015 whereby he was asked to make payment of dues and take possession. The complainant besides letter dated 13.5.2015 also wrote another letter dated 04.06.2015 (Annexure C-20), in Paras No.2 & 3 whereof, he stated as under:-

“There is no dispute and ambiguity as regards the pending payment of Rs.5,54,896.67p (Rs.49,28,021.67 – Rs.43,75,125) considering the additional charges/cost added to the tune of Rs.2,86,835.79p vide your Statement of Account dated 18^th September, 2014 to the original amount of Rs.46,41,185.88p as per Allotment letter signed by me on 9^th January, 2012, totaling to Rs.49,28,021.67p and adjusting my advance payments of Rs.43,75,125/- in the year 2011 towards the allotment.

The unjustified and arbitrary demand of Rs.52,982/- towards Interest on account of delayed remittance as per Statement of Account dated 18^th September, 2014 which was further inflated to Rs.1,02,603/- as per your Statement of Account dated 17th February, 2015 was thoroughly discussed in my meeting with Mr.Ashish Garg & your authorized representatives in late February, 2015 in your office and inspite of your waiving off 50% of the demand towards the abovesaid interest, I denied the payment as the same was grossly unjustified on your part to demand from me. It was thoroughly clarified in the meeting that if any interest was pertaining prior to the signing of the Allotment Letter dated 9^th January, 2012, the same should have been demanded on 9^th January, 2012, which was never asked by you. At the time of my signing the Allotment Letter on 9^th January, 2012, Omaxe promised me delivery of the plot complete in all respect by Eighteen months with an overrun of further Six months taking into account the contingencies which comes to 9^th January, 2014 but it is disheartening that the same is not ready till 3^rd June, 2015 in the shape as promised to be delivered to me.”

The primary grievance of the complainant was, thus, regarding unjustified and arbitrary demand of Rs.52,982/- towards interest on account of allegedly delayed remittance as per statement of account dated 18^th September, 2014, which was further inflated to Rs.1,02,603/-. Though the complainant in this letter also stated that possession was to be delivered by 09.01.2014 but the same was not ready till the writing of that letter in the shape as promised to be delivered. It was in this letter that the complainant requested Opposite Parties No.1 & 2 to prepare possession of plot complete in all respects as promised and he will immediately make the balance amount of Rs.5,54,896.67Ps and also requested for waiving of unjustified demand of interest. Letter dated 4.6.2015 was sent by the complainant to Opposite Party No.1 through registered post but they (Opposite Parties No.1 & 2) did not respond. 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, it has to be assumed that development and amenities were not complete. Thus, there has been delay in offering possession, which was due on 09.01.2014. The aforesaid delay is clearly attributable to Opposite Parties No.1 & 2. The hard earned money of the complainant remained with Opposite Parties No.1 & 2 and possession was delayed beyond the period stipulated in the allotment letter. The complainant is, therefore, entitled to interest for the period from 09.01.2014 till handing over of actual 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, Opposite Parties No.1 & 2 charged 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 balance demand raised by Opposite Parties No.1 & 2 vide statement of account dated 18.09.2014 is justified or not.

15.       Firstly, as regards interest on account of delayed remittance to the tune of Rs.52,982/-, demand for which was raised vide letter dated 18.09.2014, the grievance of the complainant stands redressed as vide email dated 21.11.2015 (Annexure C-24), Opposite Parties No.1 & 2 have expressed their willingness to waive of the full interest amount. In our considered opinion also, this demand was not justified as the complainant made payment of Rs.22.50 Lacs at the time of booking though as per payment plan opted by him, he was to pay 25% of the price (Rs.46,41,185/-).

16.       As regards remaining amount of Rs.5,54,896.70Ps, the complainant has stated in Para 6 of his complaint that he was ready to pay the same at the time of actual possession of the plot.

17.       The next question, which falls for consideration, is, as to whether the complainant is entitled to compensation for mental agony and physical harassment on account of delay in handing over possession of the plot, in question. Clearly, the complainant made 95% payment of the plot, in question, (Rs.22,50,000/- on 3.1.2011, Rs.12,78,000/- on 26.9.2011 and Rs.8,45,125/- on 20.12.2011) under the hope that he will get possession of the same within the stipulated period of 18 months but possession was not offered even by availing 6 months extended period. It is not the case of Opposite Parties No.1 & 2 that the delay was on account of force majure conditions. Thus, the complainant underwent immense mental agony and physical harassment for which, he is entitled to compensation in the sum of Rs.1,00,000/-.

18.       Since no specific allegations as regards deficiency, in rendering service or unfair trade  practice have been leveled against Opposite Party No.3,  the complaint against it (Opposite Party No.3) is liable to be dismissed.

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

20.       For the reasons recorded above, the complaint is partly accepted with costs against Opposite Parties No.1 and 2 only, in the following manner:-

1. Opposite Parties No.1 & 2 shall hand over the legal physical possession of the plot, in question, complete in all respects, within a period of three months, to the complainant, from the date of receipt of a certified copy of this order.
2. The complainant shall deposit the balance amount of Rs.5,54,896.70 Ps, with Opposite Parties No.1 & 2 within a period of two months from the date of receipt of a certified copy of the order.
3. Opposite Parties No.1 & 2 shall execute the sale/conveyance deed and get it registered in the name of the complainant 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 complainant.
4. Opposite Parties No.1 & 2 are further directed to pay interest @12% per annum on Rs.43,73,125/- to the complainant from 09.01.2014 till 31.12.2015, 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. 1.1.2016 onwards till handing over of actual physical possession of the plot, in question, shall be payable by Opposite Parties No.1 & 2 at the time of handing over of possession, to the complainant, failing which the same shall carry penal interest @15% per annum for the entire defaulted period.
6. Opposite Parties No.1 & 2 are further directed to pay Rs.1,00,000/- (Rupees One Lac Only) to the complainant 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. Opposite Parties No.1 & 2 are further directed to pay Rs.50,000/- to the complainant 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.

21.       The complaint against Opposite PartyNo.3 stands dismissed, with no order as to cost.

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

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

Pronounced.

January 15, 2016.

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

[DEV RAJ]

MEMBER

[PADMA PANDEY]

MEMBER