Haryana

StateCommission

A/598/2016

OMAXE LTD. - Complainant(s)

Versus

SURENDER MALIK - Opp.Party(s)

MUNISH GUPTA

02 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    598 of 2016

Date of Institution:    04.07.2016

Date of Decision :    02.05.2017

1.     Omaxe Limited, Office at 7 Local Shopping Centre, Kalkaji, New Delhi-110019 through its Manager.

2.     Omaxe Limited, Kumaspur, G.T. Road, Sonipat through its Manager

Both appellants through authorised representative namely Shri Dheeraj Sharma, Omaxe Limited, 7 Local Shopping Centre, Kalkaji, New Delhi-110019.

                                      Appellants-Opposite Parties

Versus

 

Surender Malik s/o Sh. Ram Kishan, Resident of House No.1781/31, Gali No.5, Shastri Colony, Gohana Road, Sonipat.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Bhupinder Singh, Advocate on behalf of Shri Munish Gupta, Advocate for appellants.

                             Shri Surender Malik-respondent, in person.

                              

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        Omaxe Limited-Opposite Parties have filed the present appeal against the order dated April 4^th, 2016 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) whereby complaint filed by Surender Malik-complainant (respondent herein) was allowed. The opposite parties were directed to pay interest on the amount already deposited with the opposite parties at the rate of 9% per annum w.e.f. 28^th May, 2013 till delivery of possession of plot to the complainant and to pay an amount of Rs.1,00,000/- as compensation on account of un-necessary harassment and humiliation. The opposite parties were to deliver possession of the plot to the complainant within 60 days from the date of passing of order.

2.                As per version of the complainant, plot No.287, measuring 500 square yards, was allotted by the opposite parties in the name of Rajesh Gupta, mentioning total sale price amount as Rs.26,88,730/- including an amount of Rs.17,19,549/-, Basic Sale Price (BSP). The total sale price amount was paid by the complainant from 27^th May, 2014 up to 24^th August, 2009 on different dates, as mentioned in complaint. Above mentioned plot was allotted in Omaxe City, Sector-18, Sonipat, which was developed in the year 2014.  Later on Rajesh Gupta got changed allotment of plot No.287 and got allotted plot No.B-451, measuring 484.38 square yards. An agreement (Exhibit C-1) was executed in between Rajesh Gupta and Opposite Parties on 03^rd October, 2006. Thereafter, complainant-Surender Malik, purchased the above mentioned plot No.B-451 from Rajesh Gupta. The transfer of ownership of plot in favour of the complainant was confirmed by the opposite parties after the complainant paid an amount of Rs.1.00 lac as transfer fee to the opposite parties. Thereafter, on demand of the opposite parties dated 13^th May, 2003, the complainant paid an amount of Rs.3,33,433.26 to the opposite parties, vide cheque dated 27^th May, 2013. 

3.                Vide letter dated 13^th May, 2013, the complainant was assured that possession of the plot would be delivered to the complainant and a conveyance-deed or the sale-deed was also to be executed in favour of the complainant. Despite time and again requests from the complainant, the opposite parties neither delivered possession of plot No.B-451 to the complainant nor executed the conveyance-deed/sale-deed. Due to this reason, the complainant who is an advocate by profession could not raise construction of his house on the above mentioned plot as he could not get sanctioned house loan from the bank for want of delivery of possession and conveyance-deed. After making full payment about two years back, the complainant has not been delivered possession of the plot.  In this regard, a legal notice was also served upon the opposite parties on 18^th February, 2015 through Shri Ramesh Sharma, Advocate, Sonipat. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 and prayed that direction be given to the opposite parties to deliver possession of the plot and to execute sale-deed/conveyance-deed in favour of the complainant and the complainant also be directed to make payment of an amount of Rs.15.00 lacs as compensation on account of un-necessary harassment and mental agony.

4.                The Opposite Parties in their written version have taken plea that the complaint is not maintainable; that the District Forum has no jurisdiction to decide this complaint. As plot No.B-451 has been sold by Rajesh Gupta to the complainant, it clearly shows that the plot was purchased for commercial purpose and the complainant is not covered under the definition of ‘Consumer’ as provided under Section 2(1)(d) of the Consumer Protection Act, 1986 and it is not a case of deficiency of service.  It is denied that the plot has been purchased by the complainant for residential purposes. As the conveyance-deed has not been executed till now, the complainant cannot be considered as owner of the plot. It is prayed that the complaint be dismissed. 

5.                The parties led evidence in support of their respective claims.

6.                After going through the pleadings and evidence of the parties, the District Forum vide impugned order dated April 4^th, 2016 allowed the complaint filed by the complainant. Relief granted in this complaint is mentioned in detail in earlier paragraph of this order.

7.                We have heard learned counsel for the appellants, respondent in person and perused the case file.

8.                During the course of arguments, there was no controversy of any type that in the beginning plot No.287, measuring 500 square yards, was allotted by the opposite parties in Omaxe City, Sector-18, Sonipat. It is also not in dispute that later on due to some changes in design of the project, there was some increase in width of a road.  In these circumstances, the opposite parties allotted plot No.B-451, measuring 484.38 square yards in the name of Rajesh Gupta. An agreement (Exhibit C-1) was executed between Rajesh Gupta and opposite parties on 03^rd October, 2006. The Basic Sale Price of the plot, in the agreement is mentioned as Rs.17,19,549/-.  It is evident from the receipts Exhibits C-12 to Exhibit C-21 that total sale price amount including the BSP of the plot has been paid to the opposite parties. Detailed discussions of the receipts regarding payment (Exhibits C-12 to C-21), is not needed in this order, as there was no controversy regarding payment of the sale price amount of the plot purchased earlier by Rajesh Gupta. 

9.                It is evident from the documents assignment of allotment right (Exhibit R-14), attached with request form, affidavit-cum-undertaking (Exhibit R-15) and affidavit cum indemnity (Exhibit R-16) that the allotment of plot No.B-451 has been changed in favour of the complainant. Much discussion is not needed of the above mentioned documents also as there is no controversy of any type in this case that the complainant has purchased plot No.B-451 from Rajesh Gupta.  In this case, findings cannot be given that the complainant has not purchased plot No.B-451 for residential purpose merely because earlier plot was allotted to Rajesh Gupta and the complainant purchased the plot from Rajesh Gupta.  Although, the allotment of plot No.B-451 has been purchased in favour of the complainant but the change took place with the consent and approval of the opposite parties after execution of documents required for this purpose, as discussed above.  At this stage, we disbelieve the version of the complainant that he has purchased plot No.B-451 for construction of his house for residential purpose. Change of allotment was permitted after receiving the required fee amounting to Rs.1.00 lac by the opposite parties. No evidence has been adduced on this point of controversy by the opposite parties.

10.              As per facts and circumstances mentioned above, situation in this case is quite clear. The opposite parties have received the full payment including the basic sale price amount. Despite that the opposite parties are neither willing to deliver possession of the plot nor willing to execute the conveyance-deed regarding plot No.B-451 in favour of the complainant. In our opinion, the opposite parties are required to deliver possession of plot No.B-451 at the earliest and are also required to execute the conveyance-deed in favour of the complainant.  With these observations, as discussed above, the findings of the learned District Forum in this regarding stand affirmed.

11.              In this case, the complainant has claimed payment of an amount of Rs.15.00 lacs on account of un-necessary harassment, mental agony and financial loss. Learned District Forum awarded only an amount of Rs.1.00 lac as compensation to the complainant.  Considering the facts and circumstances, mentioned above, the findings of the learned District Forum regarding awarding an amount of Rs.1.00 lac as compensation are reasonable and justifiable. The complainant has already deposited the total sale price amount with the opposite parties up to 27^th May, 2013.  However, neither possession of Plot No.B-451 has been delivered to the complainant nor conveyance-deed has been executed till now. The opposite parties utilized the total amount deposited by the complainant for such a long time without any fault on the part of the complainant. In this situation, awarding of interest regarding the total amount already deposited by the complainant at the rate of 9% per annum from the date of deposit till the delivery of possession is justified.

12.              No other point was argued by the parties during the course of arguments.

13.              We find no illegality or invalidity in the impugned order dated 4^th April, 2016 passed by the learned District Forum.  Accordingly, we find no merit in the appeal and the same stands dismissed.

14.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 02.05.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL