Delhi

StateCommission

FA/124/2014

P.P. GAMBHIR - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

06 Dec 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision: 06.12.2016

 

 

First Appeal- 124/2014

(Arising out of the order dated 03.01.2014 passed in Complainant Case No. 387/2009 by the District Consumer Disputes Redressal Forum (X), Udyog Sadan, New Delhi)

 

 

Shri Sanjiv Kumar Gambhir,

E-340, Greater Kailash-II,

New Delhi – 110048.                                                                ….Appellant

 

 

Versus

 

M/s. Omaxe Limited,

Omaxe House,

7, Local Shopping Centre,

Kalkaji, New Delhi- 1100198.                                                  ….Respondent

 

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) wherein challenge is made to order dated 03.01.2014 passed by the Consumer Disputes Redressal Forum (X), Udyog Sadan, New Delhi (in short, “the District Forum”) passed in CC No.387/2009 whereby the complaint case has been allowed as under:

 

“ In the facts of the case we deem it appropriate  to dispose of the complaint with a direction to the respondent to refund the paid amount with interest @9% PA from the date of deposit(s) by the complainant till actual refund along with cost of litigation to the tune of Rs.5,000/-.”

 

 

2. Briefly the facts relevant for the disposal of present appeal that a complaint under Section 12 of the Act was filed by the appellant herein  i.e. complainant before the District Forum alleging therein that he had booked a flat in a project to be developed by the respondent/OP at Pant Nagar (Rudrapur) Uttrakhand with an approximate super area of 1200 sq. ft. While booking the flat he had adopted the installment linked plan and paid Rs.2,97,248/- vide cheque dated 17.08.2006 against a receipt. The respondent/OP confirmed that allotment of flat/apartment in Tower No. Volga –E 108, 1^st Floor, Tower VOLGA having approximate super area of 1220 sq. ft. and also annexed the payment plan and advised him to pay the next installment of Rs.4,13,202/- which was accordingly paid by the appellant/OP by cheque dated 17.11.2006. It is alleged that in all the appellant/complainant paid Rs.7,10,450/- for the aforesaid flat, whereas total cost of the flat was Rs.20,13,000/-, which was to be paid in installments by 17.03.2008. The appellant/complainant was assured that the construction has started and was to be completed by 31.03.2008  when the possession of the flat would be delivered to the appellant/complainant. As per case of the appellant/complainant, subsequently, without the consent of the appellant/complainant, the respondent/OP changed the schedule of construction and payment plan without giving any reason and sent another installment payment plan dated 28.10.2007, whereby the appellant/complainant was to make first installment by  10.11.2007 and subsequent installment after every two months and last installment by 10.01.2009. It was alleged that the revised schedule had adversely affected the whole plan of the appellant/complainant. It was alleged that the appellant/complainant also tried to verify the fact of commencement of construction and had come to know that the same has not yet started. The respondent/OP also did not give any positive response to the appellant/complainant. Ultimately the appellant/complainant filed a complaint before the District Forum for refund of the amount alongwith compound interest and also claimed Rs.1,50,000/- towards damage and litigation cost to the tune of Rs.50,000/-.
3. The respondent/OP had contested the complaint by filing the written version wherein it was admitted that the appellant/complainant had booked the aforesaid flat with the respondent/OP and also made payment of Rs.7,10,450/- as was alleged. It was alleged that as per own case of the appellant/complainant had adopted the installment plan and not the construction linked plan and payment of installment in time was the essence of the contract, which he did not adhere to and there was no deficiency on the part of the respondent/OP. It was alleged that in case of refund, the respondent/OP is entitled to deduct 50% of the BSP as laid down in the application form itself.
4. Rejoinder was filed by the respondent/complainant wherein the averments made in the written statement were denied and contents of complaint case were reiterated.
5. Both the parties had filed evidence by way of affidavits before the Ld. District Forum. The written arguments were also filed before the Ld. District Forum.
6. After hearing both the parties, the Ld. District Forum held that the respondent/OP without consent of the appellant/complainant had come out with a new plan re-scheduling the time of payment and commencement of construction work to which the appellant/complainant did not agree as such he was entitled for refund of money. Accordingly, the Ld. District Forum allowed the complaint and issued directions to appellant/OP as has been stated above.
7. Aggrieved with the aforesaid order, present appeal is filed.
8. The only grievance of the appellant/complainant is that the grant of interest @9% per annum on the principal amount is on lower side, the Ld. District Forum ought to have awarded interest @24% per annum and that considering the expenses on litigation by him he was entitled to atleast higher amount of compensation/litigation costs.
9. It is contended that there was unfair trade practice on the part of the respondent/OP and he was entitled to 24% interest on the amount deposited by him. It is contended that the respondent/OP has enjoyed his money for about 08 years. It is contended that even no compensation for mental agony and harassment has been awarded to him. By way of this  appeal prayer is made for enhancement of interest as well as grant of compensation.  It is contended that the appellant/complainant has also written a letter dated 24.05.2008 that he is not interested in retaining the said flat as the same is causing loss of interest and income to him.
10. On the other hand, Ld. counsel for the respondent/OP has contended that appropriate order has been passed and present case is not for award of higher interest and compensation and the appellant/complainant is mere an investor and has done booking for earning profit. It is also contended that the appellant/complainant has filed the appeal after receiving the refund of amount alongwith interest and same is an afterthought.
11. Perusal of the appeal shows that the payment has been accepted by the appellant/complainant under protest and a letter has also been placed on record by the appellant/complainant reserving his right to challenge the impugned order. In these circumstances it cannot be said that it is an afterthought. As regards the grant of rate of interest is concerned we may mention that the Ld. District Forum has considered all the aspects of the matter. It is also mentioned that there was change in the installment plan by the respondent/OP due to which the relevant date of possession and the number of installments for payment were changed and due to said reason the appellant/complainant had himself withdrawn from the booking.
12. The Ld. District Forum has considered all these aspects and thereafter had passed the directions for refund of the amount alongwith interest @9% per annum. In these circumstances, we find no reason to interfere with the impugned order passed by the Ld. District Forum. There is no case of enhancement of interest and award of compensation is made out. The appeal stands dismissed.
13. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.  The record of the District Forum be also sent back forthwith.  Thereafter, the file be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

 

(Salma Noor)

Member