M/s Omaxe Ltd. SCO 143-144, Sector 8-C, Chandigarh, through its Sr. General Manager, Sales and Marketing, through its Authorised officer namely Harsh Bhargav

                                                                                    .…Appellant/Opposite Party  

                                                Vs.

Varinder Kaushal s/o Uggar Sain Kaushal, R/o Sumitra Building, Amloh Road, Khanna, District Ludhiana.

                                                                                    …. Respondent/complainant

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT

                        MRS. NEENA SANDHU, MEMBER

Present:          Sh. Munish Gupta, Adv. for the appellant.

                        Sh. Parveen Kumar Garg, Adv. for the respondent.

MRS. NEENA SANDHU, MEMBER

                  This is an appeal filed by the appellant/Opposite Party against the order, dated 4.1.2012 passed by District Consumer Disputes Redressal
Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only) vide which, it allowed the complaint in the following manner;

            As a result of the above discussion, the complaint is allowed and the OP is directed to pay Rs.12,90,000/- to the complainant along with interest @ 12% p.a. from the date of deposit till payment. OP is also directed to pay Rs.10,000/- as litigation costs.  This order be complied with by OP within one month from the date of receipt of its certified copy, failing which, the OP shall be liable to pay the awarded amount along with penal interest @ 15% p.a. besides Rs.10,000/- as litigation costs.

2                                Briefly stated, the facts of the case, are that the complainant booked a flat bearing No.110, 1st Floor, Tower Kachnar-B situated at ‘Omex Parkwood’ at Baddi, Tehsil Nalagarh, Distt. Solan, H.P. with the Opposite Party,  against a consideration of Rs.13,00,050/- as basic sale price, and amount of Rs.1,10,000/- on account of additional charges. It was stated that the agreement dated 14.5.2007 was executed, between the parties. The complainant deposited an amount of Rs.26,000/- (in fact 2,60,000/-) at the time of booking of the said flat. It was further stated that vide letter dated 31.10.2007, the Opposite Party, raised the demand of Rs.10,30,047/-. As such, the complainant deposited the said amount with the Opposite Party on 3.11.2007.   It was further stated that as per Clause 28 (a) of the agreement executed between the parties, the possession of the flat was to be offered within 18 months, with further provision for extension of 6 months, from the date of agreement. The complainant visited the site, in the month of December, 2009, and found that possession of the flat, could not be offered, for long time. The complainant, therefore, by way of a number of representations, requested the Opposite Party, for the refund of amount alongwith interest, but to no effect. Ultimately, the complainant served a legal notice dated 11.12.2010, upon the Opposite Party, but nothing fruitful came out. Hence this complaint was filed.

3                    The Opposite Party, in its reply, while admitting the factual matrix of the case, took up the preliminary objection with regard to territorial jurisdiction. It was stated that the mere existence of its Branch office at Chandigarh did not entitle the complainant to file the complaint in District Forum, Chandigarh. It was admitted that possession as per clause 28(a) of the agreement, was to be delivered within 18 months, from the date of signing of agreement, or within further extended period of six months, and in case the answering Opposite Party, failed to deliver the same within the stipulated period, the complainant was entitled to charges on account of delay, as per terms and conditions mentioned in clause 28(a) (in fact 28(f)). However, it was denied that the complainant ever visited the site and came to know that possession could not be offered, for a long period. It was denied that request for refund of any amount was made. It was further stated that delay in offering possession could be compensated, as per the terms and conditions of the Agreement, Annexure C-1, so the Opposite Party could not be held liable for any other relief. All other allegations made in the complaint, were denied being wrong. It was further stated that there was neither any deficiency, in rendering service, on the part of the Opposite Party,  nor it indulged into unfair trade practice.

4                    The parties led evidence, in support of their case.

5                    After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum allowed the complaint, as stated, in the opening para of this order

6                    Aggrieved by the order, passed by the learned District Forum, the appellant/Opposite Party, has filed the instant appeal. 

7                    We have heard Counsel for the parties, and, have perused the record, carefully.

8                    The contention of the learned Counsel for the appellant/Opposite Party, was that the District Forum had no territorial jurisdiction to entertain  and decide the case, as the agreement was executed at New Delhi but it wrongly held that the agreement was executed at Chandigarh. Moreover, the complainant, in fact, deposited the amounts at New Delhi and hence the impugned order was liable to be set aside being not sustainable in the eyes of law. It was further submitted that as per clause 28(f) of the agreement, in case of any delay, the appellant/Opposite Party, was liable to refund the deposited amount, with simple interest @6% p.a. from the date of demand. 

9                    On the other hand, the Counsel for the complainant/respondent, submitted that he paid an amount of Rs.12,90,000/-, towards the price of the flat, in question, and the remaining amount was to be paid by him at the time of offer of possession of the flat. He further submitted that the Opposite Party did not deliver the possession within the stipulated time. He further submitted that the Opposite Party was thus, deficient in rendering service.

10                            It is evident, from the agreement, placed, on record, by both the parties, that the same was executed at New Delhi. However, the District Forum in para No.14 of its order, wrongly observed that the same was executed at Chandigarh. No doubt, as per the aforesaid agreement, executed at New Delhi, certainly the District Fora at Chandigarh had no jurisdiction. But there is a document placed, on record, as Annexure C-4,  which is a copy of the Demand Pay  Order bearing No.013232 duly stamped by the Opposite Party, acknowledging the receipt of payment of Rs.10,30,000/- made by the complainant, towards the payment of price of the flat, at its Chandigarh Branch office. In this connection, here we may refer to Clauses 11(2) (b) & (c) of the Consumer Protection Act, 1986, which is reproduced as under;

(b)               any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carries on business or has a branch office)  or personally works for gain, provided that in such case either the permission of the District Forum is given, or the Opposite Party who do not reside, or (carry on business or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

(c)                the cause of action, wholly or in part arises.

From the above, it is evident that Rs.10,30,000/- was received by the Opposite Party, towards price of the flat, at its branch office, Sector 8-C, Chandigarh. Hence, a part of cause of action arose to the complainant at Chandigarh, and, as such, as per Clauses 11(2) (b) & (c) referred to above, the District Forum, at Chandigarh had jurisdiction to entertain and decide the case.

11                                       We also do not find any merit, in the contention of the Counsel for the appellant/Opposite Party, that as per clause 28(f) of the agreement, in case of any delay the appellant/Opposite Party, was liable to refund the deposited amount with simple interest @6% p.a. from the date of demand. In this regard, we concur with the finding given of the District Forum that the Opposite Party, did not produce any evidence, on record to establish that for force majeure reasons, or any other reason beyond its control delay was caused in the completion of project. As such, the clause aforesaid was not applicable to the facts of this complaint. Hence this contention of the appellant/Opposite Party is not sustainable.

12                                       Admittedly, an amount of Rs.12,90,000/-  was deposited by the complainant, with the Opposite Party and the remaining was to be paid at the time of offer of possession. But the Opposite Party did not deliver the flat within stipulated time, as prescribed in clause 28(a) of the Agreement. Hence they were deficient, in rendering service to the complainant.  Therefore, the District Forum rightly directed the Opposite Party to refund Rs.12,90,000/- to the complainant alongwith interest @12% p.a., from the date of deposit, till payment with costs of Rs.10,000/-. The order of the District Forum does not suffer from any illegality or perversity, warranting the interference, of this Commission.

13                           In view of the above discussion, we do not find any merit in this appeal, and the same is accordingly dismissed, with no order as to costs. The District Forum order is upheld.

14                           Copies of this order be sent to the parties, free of charge.