State Consumer Disputes Redressal Commission
Sh. S.P. Kalra vs Omaxe Buildhome Pvt. Ltd. on 24 November, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 24.11.2014 Complaint Case No.314/2011 1. Sh. S.P.Kalra R/o Villa No. 90, Deerwood Chase, Sector-50, Gurgaon (Haryana) Pin No. 122018 2. Smt. Chanda Kalra W/o Sh. S.P.Kalra R/o Villa No. 90, Deerwood Chase, Sector-50, Gurgaon (Haryana) Pin No. 122018 Complainants VERSUS Omaxe Buildhome Pvt. Ltd. 10, Omaxe House, Local Shopping Centre Kalkaji, New Delhi-11001 ..Opposite Party CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.A.Siddiqui , Member (Judicial) Judgment
1) Through this complaint, complainants Sh. S.P.Kalra and his wife Smt. Chanda Kalra have claimed refund of total amount of Rs. 19,85,375/- paid to OP-Omaxe Buildhome Pvt. Ltd. along with interest @ 24% p.a. together with Rs. 22,000/- being cost of two legal notices.
Besides, damages suffered by way of harassment, mental agony and pain etc. and the costs of litigations have also been claimed.
2) Complainants booked an apartment with the OP in Greater Noida and paid a sum of Rs. 6,40,000/- as booking amount through receipt No. 8844375 dt. 06.10.2006. The payment was made through cheque. Thereafter a further some of Rs. 4,54,375/- was paid by cheque No. 510719 dt. 20.07.2008 vide receipt No. 318938 dt.
24.07.2008. The complainants thus paid total sum of Rs. 10,94,375/- to the OP, and the OP allotted apartment No. GNUM/Peach Palm-E/402 in sector MU, Greater Noida vide letter of allotment dt. 21.09.2007.
3) The complainants also booked another apartment offered by OP in Omaxe Galaxy, Sector 112, Noida and paid a sum of Rs. 6 Lac vide cheque No. 941353 dt. 17.05.2007 and receipt No. 212825 dt. 24.05.2007 was issued by the builder. A sum of Rs. 2,91,000/- was further paid through cheque against receipt No. 334555 dt. 25.11.2008. Thus a total sum of Rs. 8,91,000/- was paid and OP allotted Aptt. No. EUROPA-A/Fifth/502 in omaxe galaxy, section 112, Noida vide their letter No. OL/COMM/N/459 dt.
25.11.2008.
4) After some time complainants contacted the officials of OP enquiring about the status of two projects which were booked.
Complainants were advised that Omaxe Galaxy project in sector 112, Noida stood shelved since the government approvals were not forthcoming. The officials suggested that complainants should get the amount of Rs. 8,91,000/- paid for Aptt. No. 502 EUROPA-A, Omaxe Galaxy in Sector-112, Noida transferred to the booking made by the complainants for Aptt. No. 402, in Peach Palm E Tower in MU Sector Greater Noida in their own interest.
Believing them, the complainants gave a letter dt. 29.01.2009 and the OP effected transfer of funds of Rs. 8,91,000/- to the apartment No-402, Peach Palm E Tower, MU Sector, Greater Noida. Subsequently, the complainants found that the construction of apartment No. 402 in Peach Palm E Tower, Sector Mu, Greater Noida was not progressing and the complainants requested for refund of Rs. 19,85,375/- paid for two apartments along with interest through their letter dt. 15.04.2009 against acknowledgment. The complainants visited the office of the OP on 12.05.2009 and the OPs officials gave a very rosy picture of their project in MU sector, Greater Noida and suggested that to make up the loss to the complainants on booking in omaxe galaxy in sector-112, Noida, where the project stood shelved, the complainants should request for transfer from their original apartment No. 402, peach palm tower E to apartment No. 503, bango palm-B in MU sector, Greater Noida, where the construction was fast. The complainants agreed and through letter dt. 12.05.2009 requested to this effect and the transfer was made by the OP then and there on the same day i.e. on 12.05.2009 itself. Thereafter the OP vide their letter No. OBPL/ALOT/GNMU/375 dt. 22.12.2010 unilaterally and without taking consent of the complainants changed the allotment of apartment No. 503, bango palm tower-B in MU sector, greater noida to apartment No. 503 in peach palm tower-A in MU sector of Greater Noida on the ground that tower bango palm-B was still under developed compared to peach palm A tower. The complainants vigorously followed up the matter with the builders by personal visits on different occasions; however, the company did not respond in a proper manner and failed to keep their promise. The complainant was therefore compelled to sent legal notice dt. 08.03.2011 which was acknowledged and replied by the OP. The complainants also sent another legal notice dt. 29.04.2011 through counsel. The OP company acknowledged having received a sum of Rs. 19,85,375/- from the complainants but gave unacceptable and deliberate denials with various issues and adopted unfair trade practice in their dealing with the complainants. There was no proper response from the builder to settle the issue.
Instead, the OP in a routine manner sent letter No. OBPL/NOR/GNMU/375 dt. 27.06.2011 seeking further payments. Therefore, the complainants were left with no choice but to file present complaint against the builder for refund of money deposited and other reliefs.
5) The OP filed their written version. It was admitted that complainants booked a flat in the upcoming residential projects of the OP through application dt.
25.09.2006. The application was however, made through property dealer namely M/s Dr. Devinder Gupta and Sons. (Copy of the application form dt. 25.09.2006 is annexed as Annexure R-1). The complainants were provisionally allotted apartment No. 402, 4th Floor, in Peach Palm E Tower in the Group Housing Project Omaxe Palm Greens at Sector-MU, Greater Noida, U.P. having a super area of app. 157.94 sq.mtrs./1700 sq.ft. Copy of the letter of allotment is annexure R-2. The payment plan was construction linked.
Therefore OP raised demand through letter dt. 03.07.2008 followed by other demand letters on start of construction. Copy of the demand letter dt. 03.07.2008 is annexure R-3. The OP sent detailed application form containing basic terms and conditions along with the letter dt. 03.07.2008, which was duly signed and returned by the complainants. Copy of application form containing detailed terms and conditions is annexure R-4. One of the important condition was that applicant agreed that amount paid with the application and in instalments to the extent of 15% of sale consideration of the residential apartment will collectively constitute the earnest money. Timely payment of the instalments of basic sale price and allied charges was essence of the terms of booking/allotment. In the event of breach of any of the terms and conditions of the allotment, the allotment will be cancelled at the discretion of the company and the earnest money together with any interest on instalments due but unpaid and interest on delayed payment shall stand forfeited..........
6) Thereafter, the complainants requested for change of the allotment through letter dt. 12.05.2009. As a gesture of goodwill the OP accepted the request and changed the allotment. The OP allotted apartment No. 503, 5th Floor, Bango Palm B-Tower in the said project to the complainants. The changed apartment was similar in specifications. Again, the allotment was changed to apartment No. 503, 5th Floor, in Peach Palm Tower-A of similar specifications in the said project in order to give early possession to the complainants. Thereafter, the OP sent several letters/reminders/notices to the complainants but they have failed to adhere to the payment plan, which has rendered the allotment in their favour liable for cancellation and forfeiture of the earnest money. It was alleged that, in case the complainants are allowed to back out from the project of apartments and were allowed to claim refund, the whole project in which public at large have invested their money will collapse. The OP has invested large sums of money based on the representations of allottees like complainants. It appears that the complainants were merely an investor and looked forward to earn profit on their investments. Due to worldwide economic slowdown and recession in real estate market, the complainants assuming lesser profit/loss on their investment, have now filed the complaint for refund of their amount, which was not acceptable as it was in violation of the terms and conditions of the allotment. There was no cause of action for any refund. The complaint was liable to be dismissed.
7) The OP also raised certain preliminary issues.
It was alleged that the complainant was bad for misjoinder of necessary party. The complainants made their application through M/s Devinder Gupta and Sons and therefore they were a necessary party in the complaint. The complaint was liable to be dismissed on this ground alone. It was further alleged that the complainants were not a consumer within the provisions of the Consumer Protection Act, 1986 nor there was any deficiency of service on the part of the OP and therefore complaint was not legally maintainable. This Forum/Commission lacks territorial jurisdiction as the subject matter of the dispute was located in Noida, Greater Noida of UP. The complaint can also be dismissed on the ground of lack of pecuniary jurisdiction in as much as complainants paid only Rs. 19,85,375/- which is less then Rs. 20 Lac. The complaint therefore could have been legally filed in District Forum having jurisdiction. The complainant also does not disclose any cause of action. Besides, complex facts and complicated questions of law were involved and Civil Court alone had jurisdiction to try and adjudicate upon the dispute. It was denied that there was any delay in construction or there was any deficiency of service on the part of the OP. It was also denied that OP indulged into any unfair trade practice. Nature of allotment was provisional and could have been changed and there was indeed no need of obtaining consent from the complainants; change of allotment from Bango Palm-B to Peach Palm-A has been made in the best interest of the complainants as per their wish and intension of early possession. It was further alleged that complainants failed to pay due instalments and thus failed to perform their part of contract. The complainants are not entitled for possession of the unit in question as on 05.03.2012, an amount of Rs. 15,21,511.91/- was due against them. Instead of paying due and outstanding amount they claimed their payment with interest which shows simply profit making intention of the complainants. Such a complaint cannot be allowed. They were only interested in earning profits from their investments and the purpose was commercial in nature.
8) In view of the above facts, circumstances and the legal position, the complaint was liable to be dismissed with an exemplary cost.
9) Complainant filed rejoinder wherein complaint version was reiterated in its entirety. Both the sides filed evidence through affidavits along with written arguments. However, on perusal of the record it was found that evidence of the OP along with written arguments were not available on record. This fact was brought to the notice of the Ld. Counsel for the OP, but the evidence and the written arguments were not brought on record despite sufficient time given for the same.
10) We have heard Ld. Counsel for the parties and perused the record.
We have heard Sh. Neeraj Chaudhary along with Sh. Prakash Kalra for the complainants. We have also heard Sh. Mukti Bodh, Counsel for the OP.
11) It has been argued on behalf of the complainants that Sh. S.P.Kalra, complainant is a senior citizen aged about 68 years, he along with his wife applied for the allotment of flats/apartments in the upcoming projects of the OP in Noida/Greater Noida. Initially, total sum of Rs. 10,94,375/- was paid to the OP and the OP allotted apartment No. GNUM/Peach Palm-E/402 in Sector MU, Greater Noida through a letter dt.
21.09.2007. Complainants also booked another apartment and paid a total sum of Rs. 8,91,000/- and the OP allotted APTT No. EURPO-A/5th/502 in Omaxe Galaxy Sector 112, Noida through letter dt. 25.11.2008. After payment of the booking amount complainants enquired about the status of the two projects where apartments were booked; they came to know that Omaxe Galaxy Project in Sector 112 Noida stood shelved and the officials of the OP suggested that Rs. 8,91,000/- be transferred to the booking made earlier by complainants for apartment No. 402 in Peach Palm-E Tower, MU Sector, Greater Noida.
Believing the OPs, the complainants immediately gave letter dt. 29.01.2009 and transfer of funds of Rs. 8,91,000/- was immediately effected to apartment No. 402, Peach Palm-E, Tower MU Sector, Greater Noida.
Subsequently, the complainants found that construction of apartment No. 402, in Sector MU, Greater Noida, was not progressing well and the complainants immediately requested for refund Rs. 19,85,375/- paid for two apartments (along with interest). Request was made through letter dt. 15.04.2009 against acknowledgment. After some time complainants visited office of the OP on 12.05.2009. The officials of the OP gave a very rosy picture of their project in MU Sector Greater Noida and again suggested to transfer from their original apartment No. 402, Peach Palm, Tower-E to Apartment No. 503, Bango Palm B in MU Sector, Greater Noida, where according to OPs construction was fast. Poor Complainants again agreed and through letter dt. 12.05.2009 requested the transfer. The transfer was made by OPs then and there on 12.05.2009 itself, thereafter, the OPs vide their letter No. OBPL/allot/GNMU/375 dt. 22.12.2010 unilaterally and without bothering about taking consent of the complainant, changed the allotment of apartment No. 503, Bango Palm Tower-B in MU Sector, Greater Noida to apartment No. 503 in Peach Palm Tower-A in MU Sector, Greater Noida, on the ground that Tower Bango Palm was still under developed compared to Peach Palm-A Tower. The complainants were fed up with the conduct of the builder and decided to get refund of the deposited amount along with interest. Complainant therefore sent legal notice dt.
08.03.2011 and the another legal notice 29.04.2011 to OPs and the notices were served. The OP though acknowledged to have received the sum of Rs. 19,85,375/- from the complainants but indulged into unacceptable behaviour and deliberate denials, which amounts not only to deficiency of service but unfair trade practice. There was no proper response from the builder to settle the issue and they were bent upon keeping the handsome amount deposited by the complainants on one pretext or the other. At a later stage OP sent letter No. OBPL/NOR/GNMU/375 dt. 27.06.2011 seeking further payments. At this stage, complainants were left with no choice but to file complaint against the builder for refund of the deposited money with other reliefs.
12) It was emphasised that complainants never approved the unilateral change made by the OP in an arbitrary, unfair and unjust manner. The complainants vigorously pursued their objective of refund with interest and frequently visited the office of the OP with no satisfactory result. The OP continued to hold money deposited by the complainants.
13) On the other hand, it was argued on behalf of the OP that parties were bound by the terms and conditions mentioned in allotment letters dt.
21.09.2007 and 25.11.2008. The payment was construction linked and complainant defaulted in making timely payments therefore 15% of the total costs of the flat/apartment was to be legally forfeited as earnest money as the change was made in the interest of the complainants themselves for giving them earlier possession there was no legal necessity to secure written consent of the complainants. The specification of the changed apartment was the same only change of tower from B to A was made and the rest were the same.
14) Coming to preliminary points, it was argued on behalf of the OP that this Commission lack pecuniary as well as monetary jurisdiction. The total amount deposited by the complainants was Rs. 19,85,375/- which is less than 20 Lac, therefore, the complaint should have been filed in a District Forum having jurisdiction. We do not agreed with the contention of the Ld. Counsel for the OP, the total amount along with interest for refund of which complaint was filed was undoubtedly more than 20 Lac and therefore this Commission was fully competent to entertain and adjudicate the complaint.
Likewise, it has not been denied by the Counsel for the OP that registered office of the OP is situated at 10, Omaxe Home, Local Shopping Centre, Kalkaji, New Delhi, therefore, even if the property in dispute is situated at Noida/Greater Noida, U.P. this Commission will have the Territorial Jurisdiction to entertain the complaint within the provision of the Section 11 (2) of the Act.
15) Ld. Counsel for the OP further argued with much emphasis that Sh. S.P.Kalra and Smt. Chanda Kalra booked two apartments in upcoming projects of the OP not to fulfil their residential requirements but the dominant intension of the complainants was to earn profit. The purpose behind the allotment of flats was commercial in nature. Therefore, the complainants were not consumer within the meaning of the Section 2(1)(d) of the Act. To support this contention, he relied upon the rulings of Savi Gupta and Ors.
Vs Omaxe Azorium Developers Pvt. Ltd. and Ors. IV (2012) CPJ 327 NC and M/s Omaxe Ltd. Vs Priyanka Gupta and Ors. FA-500/13 decided on 02.09.2013 by SCDRC Haryana (Panchkula). He also relied upon the ruling of this Commission in Complaint Case No. 49/13, C-50/13 Asha Saini Vs Omaxe Ltd. decided on 30.07.2013. In reply to the contention of the Ld. Counsel for the OP, it was argued on behalf of the complainants that the only purpose behind the allotment of the flats by S.P.Kalra and his wife was purely residential; the contention that the purpose behind the allotment of the two flats was commercial was untrue and motivated. It is true that initially two flats were booked by Sh. S.P.Kalra and Smt. Chanda Kalra in Sector MU, Greater Noida and Sector 112, Noida respectively, but at later stage on the suggestion of the officials of the OP, the amount of Rs. 8,91,000/- deposited by the complainants was transferred to the single unit booked earlier. At the last single flat was left over when inordinate delay was caused in construction. OP also resorted to unilateral change of flat which not approved by the complainants and they requested for refund of the money deposited. Each and every case has its own peculiar facts and circumstances and no blanket formulae can be applied blindly. The facts and circumstances of the cases relied by the Ld. Counsel for the OP, in our opinion are not applicable in the present case.
16) It may be noted that the sometime the distinction between commercial purpose and non commercial purpose is so obscure and thin that it become very difficult to reach to a definite conclusion. It is a one of such cases. In our view, the expression commercial purpose must be given a precise and restrictive meaning in favour of the complainant. Therefore we have no hesitation in holding that the complainants are consumers within the meaning of the section 2(1)(d) of the Act.
17) Undoubtedly, the parties are bound by the terms and conditions of the allotment letters. The project was to be completed within 30 months and complainants were entitled to get possession of the flats during this period, but the construction of the flats were unduly delayed. Even at this belated stage there has been no firm commitment on behalf of the OP that OP was ready and willing to handover the possession in near future. The deposited amount of Rs. 19,85,375/- is still held up by the OP; it was the bounded duty of the OP to have returned the amount deposited by the complainants along with interest after deducting the forfeited earnest money. Since the OP has retained the entire amount without any justification whatsoever it certainly amounts to not only deficiency of service but also proves indulgence of the OP to unfair trade practice.
18) Accordingly, the complaint is allowed and we pass the following orders:
i.
OP is directed to refund a sum of Rs. 19,85,375/- along with 12% interest from the date of deposit till the date of actual payment. Ofcourse the OP will be entitled to deduct the forfeited 15% earnest money amount.
ii.
OP is further directed to make payment of Rs. 1 Lac as compensation for harassment, mental pain and agony and inconvenience caused to complainants.
iii.
Complainants are further entitled to get Rs. 20,000/- towards costs of litigations.
19) Compliance of the order shall be made within 30 days from the date of receipt of the order.
20) Copy of the judgment and order be made available to the parties free of costs as per rule thereafter file be consigned to record room.
(S.A.SIDDIQUI) MEMBER (JUDICIAL) (S.C.JAIN) MEMBER FATIMA