CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.803/2009
- MS. SHIKHA DAS SAHU
E-174, SPAZE PRIVY,
SECTOR-72, VILLAGE-FAZILPUR,
GURGAON-122001(HARYANA)
- MR. SATNARAYAN SAHU
E-174, SPAZE PRIVY,
SECTOR-72, VILLAGE-FAZILPUR,
GURGAON-122001(HARYANA)
…………. COMPLAINANTS
VS.
M/S OMAXE LTD.
OMAXE HOUSE, 7, LOCAL SHOPPING GCENTRE,
KALKAJI, NEW DELHI-110019
THROUHG ITS MANAGING DIRECTOR
…………..RESPONDENT
Date of Order: 17.10.2016
O R D E R
A.S. Yadav – President
Complainants are husband and wife and have booked a flat in “Omaxe Heights” project of OP at Bhiwadi in April 2006. The total cost of the flat was Rs.20,70,000/- and at the time of booking complainants paid a sum of Rs.3,25,000/- for which receipt dated 25.05.2006 was duly issued. Thereafter complainant received a letter dated 29.04.2008 informing complainants about the allotment of flat No.602 in favour of complainants and vide the same letter were asked to pay Rs.1,92,000/-. That amount was duly deposited by the complainants vide cheque dated 29.05.2008 for which the receipt dated 04.06.2008 wad duly issued.
It is stated that after deposit of application form, the OP was under obligation to sign buyer’s agreement with the complainants within 30 days from the deposit of application form. Even after expiry of more than three years the buyer’s agreement has not been got signed. Complainants visited the office of OP so many times and enquired about the status of the said project and were informed that said project has been cancelled however no intimation in writing was ever received by the complainants. Complainants sought the refund of the amount deposited alongwith interest as OP failed to provide possession of the flat. Inspite of refunding the amount, the OP threatened to forfeit the amount. It is stated that it is a case or deficiency in service on the part of OP. It is prayed that OP be directed to refund the deposited amount of Rs.5,17,000/- with 18% interest p.a. as well as compensation.
OP in reply has admitted that initially a sum of Rs.3,25,000/- was paid. It is also admitted that vide letter dated 29.04.2008 complainants were required to make payment of Rs.1,92,500/- and that payment was also made. It is stated that the complainants have not paid the remaining amount hence completion of project was adversely affected. It is further stated that complainants and various other allottees have not made payment as per the payment plan for development construction of project causing substantial loss to the OP. It is also stated that this Forum lacks the pecuniary as well as territorial jurisdiction. Moreover the present complaint is barred by limitation as flat was booked in April 2006 and the present complaint has been filed in November 2009. It is prayed that the complaint be dismissed.
We have heard Ld. Counsel for the parties and carefully perused the record.
It is significant to note that OP in para 5 of the written arguments, has stated that in fact vide allotment-cum-demand letter dated 29.04.2008, complainant was requested to make payment of Rs.1,92,500/- by 22.05.08 as per the payment plan. The said amount was not paid by the complainants on time i.e. complainants failed to perform their part of contract. Even reminder was issued. This para of written arguments of the OP is contrary to the reply submitted by the OP. In the reply OP has admitted that the complainant made payment of Rs.1,92,500/-. In fact that payment was made by the complainant vide cheque dated 29.5.2008 for which a receipt was issued on 04.6.2008.
It is significant to note that though the OP was under obligation to get buyer’s agreement signed with the complainant within 30 days from the deposit of application form but the same was not got signed even after three years of the submitting of the application form. In fact OP has failed to prove on the record that any steps were taken by the OP towards the completion of the project. Complainant has specifically stated that even the project was not started. OP was under obligation to refund the amount as OP has failed to perform its part of contract. It is a clear cut case of deficiency in service on the part of OP.
So far as territorial and pecuniary jurisdiction of this Forum is concerned, it is significant to note that complainant is only seeking refund of amount paid by him and the same is very well within the pecuniary jurisdiction of this Forum.
So far as territorial jurisdiction of this Forum is concerned, it is admitted fact that all transactions took place at the registered office of OP which is situated within the territorial jurisdiction of this Forum.
So far as complaint barred by limitation is concerned it has no force as complainant has sought the refund of the amount vide letter dated 22.09.09 and the same was not refunded, accordingly this complaint was filed on 17.11.09. Here it is use to refer to case of Meerut Development Authority Vs Ashok Kumar Sood – in that case the Hon’ble National Commission relied on following observation of the Hon’ble Supreme Court in Meerut Development Authority Vs M.K. Gupta, in Petition for Special Leave to Appeal(Civil) CC NO.8481/2012:-
“In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the mater of non-delivery of possession of the plot.”
It is a clear cut case of deficiency in service on the part of OP.
OP is directed to refund the amount of Rs.5,17,000/- alongwith interest @ 9% from the date of deposit. OP is further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (RITU GARODIA) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
