Delhi

StateCommission

FA/125/2014

SANJIV KR. 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- 125/2014

(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 are that a complaint under Section 12 of the Act was filed by the appellant herein i.e. complainant before the District Forum stating 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 1220 sq. ft. While booking the flat he had adopted the instalment linked plan and had paid Rs.2,97,248/- vide cheque dated 17.08.2006 against a receipt. The respondent/OP confirmed the allotment of flat/apartment in Tower No. VOLGA –E-108, 1^st Floor, Tower VOLGA and also annexed the payment plan and advised him to pay the next instalment of Rs.4,13,202/-. The said payment was made by the appellant/complainant to the respondent/OP by cheque bearing No.249753 dated 17.11.2006. It was alleged that in all the appellant/complainant had 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 instalments by 17.03.2008. It was alleged that the appellant/complainant was assured that the construction had started and would be completed by 31.03.2008 when the possession of the flat would be delivered to the appellant/complainant on receipt of last payment of 5% of BSP. As per case of the appellant/complainant, subsequently, without the consent of the appellant/complainant, the respondent/OP had changed the schedule of construction and payment plan without giving any reason and sent another instalment payment plan print dated 28.10.2007, whereby the appellant/complainant was to make first instalment by 10.11.2007 and subsequent instalment after every two months and last instalment by 10.01.2009. The remaining 5% was to be paid on an offer of possession. 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 came to know that it had not yet started. He also wrote to the respondent/OP in this regard. The respondent/OP did not give any positive response to the appellant/complainant. Thereupon, he made a request for refund of the paid amount with interest vide letter dated 24.05.2008. Reminders were also sent but of no result. The appellant/complainant had sent a legal notice through counsel to which a vague reply was given by the respondent/OP. Ultimately the appellant/complainant filed a complaint before the District Forum for refund of deposited amount alongwith compound interest and also claimed Rs.1,50,000/- towards damages 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, he had adopted the instalment plan and not the construction linked plan and timely payment of instalment was the very essence of the contract, which he did not adhere to and thus 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 15% 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 observed 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 for which the appellant/complainant did not agree and therefore was entitled for refund of money. Accordingly, the Ld. District Forum allowed the complaint and issued directions to the respondent/OP to refund the amount alongwith interest as has been stated above.
7. Aggrieved with the aforesaid order, present appeal is filed.
8. We have heard appellant/complainant who has argued in person as well as Ld. counsel for the respondent/OP and perused the record.
9. The grievance of the appellant/complainant is that the grant of interest @9% per annum on the deposited amount is on lower side. It is contended that the Ld. District Forum ought to have awarded interest @24% per annum. It is further contended that considering the expenses on litigation incurred by the respondent/complainant, the Ld. District Forum ought to have awarded compensation and higher amount of litigation costs.
10. Appellant/complainant has contended that there was an unfair trade practice on the part of the respondent/OP as the respondent/OP had enjoyed money of respondent/complainant for about 08 years, despite that no compensation for mental agony and harassment has been awarded to him. The appellant/complainant has made prayer for enhancement of rate of interest as well as for the grant of compensation.  
11. On the other hand, Ld. counsel for the respondent/OP has submitted that appropriate order has been passed by the Ld. District Forum. It is contended that present is not a case for award of higher interest and compensation. It is contended that the appellant/complainant is merely an investor and had done booking for earning profits. It is contended that the appellant/complainant had also written a letter dated 24.05.2008 to respondent/OP stating that he was not interested in retaining the said flat as the same was causing loss of interest and income to him. It is also contended that the appellant/complainant has filed the present appeal after receiving the refund of amount alongwith interest and same is an afterthought.
12. 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 appeal filed is an afterthought and is to be thrown out on aforesaid ground. 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 before passing the impugned order. Ld. District Forum has noted that respondent/OP had re-scheduled the payment and commencement of construction as a result of which the relevant date of possession and the number of instalments were changed and due to said reason the appellant/complainant had himself withdrawn from the booking. We may mention that the appellant/OP who did not opt for the re-scheduling. Further the stand of respondent/OP is that the rescheduling was done on the demand of large number of allottees of the project as they had requested more time for payment of instalments. The respondent/OP had also sent a letter dated 16.09.2008 to appellant/complainant whereby he was requested to visit the office of the respondent/OP to choose a flat of same size in some other tower of same project and it was assured that the possession of the flat would be given within the scheduled period. However, the appellant/complainant did not come forward.
13. The Ld. District Forum has considered all the material aspects of the matter and thereafter had given the directions for refund of the amount alongwith interest @9% per annum. In the facts and circumstances of the case we find no case to enhance the rate of interest and to award compensation as is prayed.
14. The appeal stands dismissed.
15. 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