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.268/2010
- SHRI SURINDER KUMAR MALHOTRA
S/O SH. R.N. MALHOTRA
- SMT. PRABHA MALHOTRA
W/O SH. S.K. MALHOTRA
BOTH R/O 6/214, IST FLOOR,
GEETA COLONY, DELHI-110031
…………. COMPLAINANTS
Vs.
M/S OMAXE LIMITED,
THROUGH THE CHAIRMAN/PRESIDENT
OMAXE HOUSE, 7 LOCAL SHOPPING CENTRE,
KALKAJI, NEW DELHI-110019
…………..RESPONDENT
Date of Order:17.02.2016
O R D E R
A.S. Yadav - President
Complainants booked a flat in the project of OP “Omaxe Heights” at Bhiwadi on 20.05.2006 and paid a sum of Rs.3,25,000/-. Vide letter dated 29.04.2008, complainants were provisionally allotted flat No.908, Tower Jasmine-A in the aforesaid project and were asked to pay Rs.1,92,500/- on or before 22.05.2008. The aforesaid amount was paid by complainants vide receipt No.308407 dated 17.05.2008. Complainants made numerous calls on customer care of OP to know about the construction of above said project. Complainants were told by officials of customer care of OP that construction of above project is going to begin very shortly and they offered complainants to convert their booking for a plot.
Complainant sent a letter dated 20.10.09 to OP bringing to the notice of OP about failure on its part to even to start the project and misleading the complainant and thereafter sent reminders through emails on 18.1.10, 27.1.10, 09.2.10 and 15.3.10 but no reply on behalf of OP received. From the above facts, it is clear that OP have no plan for construction of above project. OP never gave any satisfactory reply to complainant. It is prayed that OP be directed to refund a sum of Rs.5,17,500/- alongwith interest @ 24% p.a. from 29.4.2008 and also to pay Rs. 4 lakhs for compensation and Rs.22000/- towards litigation expenses.
In the reply OP took the preliminary objection that aforesaid flat was booked through some property dealer namely “Axion Properties” and the complaint is bad for non-joinder of Axion Properties. The total value of the flat is Rs.22,08,000/- hence the same is beyond the pecuniary jurisdiction of this Forum and also flat is situated outside the territorial jurisdiction of this Forum.
On merit, it is not disputed that the aforesaid flat was booked vide application dated 14.5.06. However it is stated that as per clause i and ii of the application dated 14.5.06, OP had to allot any unit to complainants within a period of one year from the date of registration. In case the company failed to allot any unit within a period of 12 months from the date of registration, the complainants had the right to cancel the registration and withdraw the registration amount by giving 30 days notice. However, the complainants never exercised this right prior to the receipt of intimation of allotment.
It is also not disputed that the complainants were provisionally allotted flat No.908, Tower Jasmine-A vide letter dated 29.04.2008. Complainants having agreed to the terms of the aforesaid allotment letter dated 29.4.2008 duly signed the application form containing the basic terms and conditions of the allotment and also deposited the amount of Rs,1,92,500/- with OP.
It is further state that as per clause 4 of the basic terms and conditions, OP may effect such variations and modifications therein as may be necessary or as it may deem appropriate and fit in the best interest of the project or as may be done by the competent authority. The necessary changes/alteration may involve change in position/location including change in dimensions, area or number etc. of the residential flat. As per clauses 5 and 6 of the basic terms and conditions, 15% of the sale consideration has been treated as earnest money and the same is liable to be forfeited in case of the breach of any of the terms and conditions of the allotment.
It is stated that OP has made endeavour to give possession of the residential flat to the allottee as early as possible, subject to force majeure circumstances and reasons beyond the control of OP with a reasonable extension of time. The construction of the project was in progress. OP has carried out certain changes in the plan of the project in as much as it has decided to construct low-rise apartments in place of high rise apartment. Due to this change in the construction plan, complainants have been re-allotted the apartment No.403 in Daffodil-E Tower on fourth floor in the aforesaid project. The same has been informed to complainants vide letter dated 15.10.2010. It is stated there is no cause of action hence complaint be dismissed.
We have heard Ld. counsel of the parties and carefully perused the record.
It is significant to note that the flat was booked in May 2006 and the present complaint was filed on 06.05.2010. That is in four years OP has not made any efforts to complete the project in question. Even the provisional allotment was not made within 12 months as the same was made after two years. Thereafter there was no progress in the construction of the project rather OP has referred to the various clauses of terms and conditions of allotment which authorized OP to make any alteration or changes in the project. It is significant to note that OP has not completed formalities for the construction or obtained permission from the competent authority to start with the project and in order to cover its inability to complete the project, has taken shelter of various clauses to make changes.
OP in the reply took the plea that OP company has carried out certain changes in the plan of the project and it has decided to construct low rise apartments in place of high rise apartments and due to this change complainants have been allotted apartment No.403 in Daffodil-E Tower on fourth floor in the aforesaid project and the same has been informed to complainants vide letter dated 15.10.2010. This complaint was filed on 06.05.2010 and even the notice of the complaint was duly served on OP much before the sending of this letter. In fact allotment letter was received only after this notice dated 09.09.2010 was sent to OP meaning thereby upto the sending of this notice, no progress was made in the initial project. It is clear cut case of deficiency in service on the part of OP.
Complainants are justified in asking for refund of their money in as much as in four years nothing has been done even the project was not started.
OP is directed to pay a sum of Rs.5,17,000/- to complainants alongwith interest @ 9% p.a. from the date of filing of the complaint i.e. 01.07.2013 plus a compensation of Rs.10,000/- 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) (A.S. YADAV)
MEMBER PRESIDENT
