State Consumer Disputes Redressal Commission
Mr. Ravinder Kumar Jain vs Omaxe Chandigarh Extension Developers ... on 20 April, 2022
C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 31.08.2018
Date of hearing: 01.04.2022
Date of Decision: 26.04.2022
COMPLAINT CASE NO.- 1108/2018
IN THE MATTER OF
MR. RAVINDER KUMAR JAIN,
E-8, MILAP NAGAR,
UTTAM NAGAR,
NEW DELHI- 110059
(Through: Sunil Keshari, Advocate)
...Complainant
VERSUS
OMAXE CHANDIGARH EXTENSION
DEVELOPERS PVT LTD,
(WHOLLY OWNED SUBSIDIARY OF OMAXE LTD.),
10-LSC, KALKAJI,
NEW DELHI- 110019
(Through: Mukti Bodh & Co.)
...Opposite party.
ALLOWED PAGE 1 OF 11
C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MR. RAJAN SHARMA, (JUDICIAL MEMBER)
Present: None for the parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the complainant before this commission alleging deficiency of service and unfair trade practice by the opposite party and has prayed the following:
a) It is declared that aforesaid practice of quoting the floor area short by about 15% at the time of booking and asking the complainant to pay increase cost after receiving about 85% of consideration by opposite party M/s Omaxe Chandigarh Extension Developers Pvt. Ltd, (Wholly owned subsidiary of Omaxe Ltd.) as unfair trade practice.
b) To restrain the opposite party form adopting the unfair trade practices as to disclosure of area of unit substantially lower as against the final area.
c) That Opposite party be directed not to charge increased cost of Rs.4,07,501 + Service tax and interest Rs.67,833/-. Total Rs. 4,75,334/- (Rs. Four lac seventy five thousand three hundred thirty four only + Service tax) from complainant or in alternate refund twice of amount received by opposite party.
d) To compensate the complainant for causing mental agony and inconvenience as this Hon'ble forum may deem fit and proper under the facts of the case and costs of the proceedings.
2. Brief facts necessary for the adjudication of the present complaint are that in the year 2012, the Complainant booked a flat bearing no. 246D/second floor in the project named "Blossom Greens" at Omaxe Silver Birch Chandigarh Extn. with the Opposite Party.
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Thereafter, an agreement was executed between the parties on 18.09.2012 for a total basic sale price of Rs. 33,82,000/- for built up area measuring 1500 sq. ft. approx. The complainant paid Rs. 31,82,942/- to the opposite party as and when demanded by it. The opposite party issued letter dated 14.12.2013 intimating that the area of the flat in question was increased by 202 sq. ft, which makes the revised area of the said flat to 1702 sq. ft. The Opposite party also asked the complainant to further pay an amount of Rs. 4,07,501.33/- in view of the increased build up area plus service tax. The complainant objected to the said increase in the built-up area and tried to do various communications with the opposite party but the opposite party failed to give any response to the complainant. The opposite party vide demand letter dated 04.01.2014 asked the complainant to pay Rs. 60,310/- as interest due. Aggrieved by the aforesaid act on the part of opposite party, the complainant has approached this commission.
3. The Opposite Party has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the complainant is not consumer under the Consumer Protection Act, 1986 as the complainant invested the money to earn profit, which amounts to commercial purpose. He further submitted that this commission does not have the territorial jurisdiction to try and entertain the present complaint as the subject property in question is situated beyond the territorial jurisdiction of this commission.
4. The counsel for the opposite party submitted that the present complaint involves complicated question of facts and law, which require detail evidence, examination and cross examination of witnesses and the same cannot be adjudicated in a summary ALLOWED PAGE 3 OF 11 C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022 procedure before this commission. He further submitted that the complainant defaulted in making timely payments as per the payment schedule.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Thereafter, both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. The fact that the complainant had booked a flat with the Opposite Party is evident from the agreement dated 18.09.2012. WHETHER COMPLAINANT FALLS IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
8. The Opposite Party contended that the complainant is not Consumer as defined under the Consumer Protection Act, 1986 as she invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. .......A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or ALLOWED PAGE 4 OF 11 C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022 three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
9. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
10. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the flat purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant.
11. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the said flat for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such flats. Mere allegation, that the purchase of the property is for commercial purpose, cannot be ALLOWED PAGE 5 OF 11 C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022 the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
WHETHER THIS COMMISSION HAS THE TERRITORIAL JURISDICTION TO ADJUDICATE THIS COMPLAINT?
12. The next question for consideration is whether this commission has the jurisdiction to adjudicate the present complaint. We deem it appropriate to refer to Section 17(2) of the Consumer Protection Act, 1986 which provides as under:
"(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-
(a) the opposite party or each 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; or
(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 State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
13. Analysis of Section 17 of the Consumer Protection Act, 1986 leads us to the conclusion that clause 17(2) of the Act provides the extent of territorial jurisdiction, wherein it has been provided that the state commission shall have the jurisdiction to entertain cases where opposite party at the time of the institution of the complaint, actually ALLOWED PAGE 6 OF 11 C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022 and voluntarily resides or carries on business or has a branch office or personally works for gain or the cause of action arose.
14. Having discussed the statutory position, the facts of the present case reflect the registered office of the Opposite Party is at 10- LSC, Kalkaji, New Delhi - 110019. Since the registered office falls within the territory of Delhi, this commission has the territorial jurisdiction to adjudicate the case. To strength the aforesaid findings, we tend to rely on Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, wherein it has been held as under:
"It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint."
15. Relying on the above settled law, we are of the view that this commission has the territorial jurisdiction to adjudicate the present complaint.
WHETHER THE PRESENT COMPLAINT INVOLVES COMPLICATED QUESTIONS OF FACTS AND LAW, WHICH SHOULD BE DECIDED BY THE CIVIL COURT?
16. The other question of consideration before us is whether the present case involves complicated questions of fact and law, which need to be decided by the civil court and not by this commission.
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17. On perusal of material available on record, we do not find any complexity in the matter, which could not be decided in the summary procedure adopted by this commission. Moreover, nothing cogent has been brought on record by the opposite party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties. Therefore, the contention of the opposite party that this commission does not have right to adjudicate the matter is without merit.
WHETHER THE OPPOSITE PARTY IS GUILTY OF UNFAIR TRADE PRACTICE TO THE COMPLAINANT?
18. Now the question of consideration before us is whether the opposite party was right in increasing the built up area of the said flat without the consent of the complainant. The opposite party submitted that the change in super area was warranted by the terms and conditions of the agreement dated 18.09.2012. To resolve this issue, we deem it appropriate to refer to the Pawan Gupta vs Experion Developers Pvt. Ltd. reported as I (2021) CPJ 72 (NC), wherein the Hon'ble National Commission has held as under:
"17. The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party ALLOWED PAGE 8 OF 11 C. NO. 1108/2018 RAVINDER KUMAR JAIN VS. OMAXE CHANDIGARH EXT. LTD. D.O.D.: 26.04.2022 to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required."
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19. On perusal of the above settled law, it is clear that once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings which were specified at the time of approval cannot be changed until there is a change either in the area of the flat or in the area of any of the common buildings or there is a change in the total area of the project (plot area).
20. Returning to the facts of the present case, we failed to find any document which shows that there was change in either the total area of the flat or in the area of any of the common buildings or any change in the total area of the project. Moreover, the opposite party failed to show any comparison/ difference in the areas of the original approved space and the common spaces/buildings which were finally allotted by the Opposite party to the buyers. Therefore, we do not see any justification in increasing the super area of the said flat and charging the excess amount for the said increased area by the opposite party.
21. Therefore, relying on the above settled law and the extensive discussions, we are of the view that the opposite party is guilty of Unfair Trade Practices and was not justified on increasing the super area of the flat in question.
22. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party not to charge the increased cost of Rs. 4,07,501/- plus service tax and interest of Rs. 67,833/- from the complainant. We further direct the Complainant to pay the remaining balance after deducting the excess amount charged in lieu of increased super area, within 60 days from the date of present judgment.
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23. After receiving the balance amount, the Opposite Party is directed to handover the physical, vacant and peaceful possession of the said Flat, complete in all respects as per the Agreement dated 18.09.2012 within 30 days from the date of receiving the balance payment from the complainant
24. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of Rs. 1,00,000/- as cost for mental agony and harassment to the complainant.
25. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
26. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT RAJAN SHARMA JUDICIAL (MEMBER) Pronounced On:
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