State Consumer Disputes Redressal Commission
Ankur Gupta vs Omaxe New Chandigarh Developers ... on 3 December, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T. CHANDIGARH
[ADDITIONAL BENCH]
============
Ap p ea l N o : A/ 26 1/ 20 24
Da t e o f I ns ti tu ti o n : 23/ 07/ 20 24
Da t e of D ec is i on : 03/ 12/ 20 24
1. Ankur Gupta son of Sh. Sanjeev Gupta.
2. Rakhi Gupta wife of Sh. Ankur Gupta.
Both residents of House No. 195, Sector 19-A,
Chandigarh.
......... Appellants
V E R S U S
1. Omaxe New Chandigarh Developers Private
Limited, Regd. Office at 10, Local Shopping
Centre, Kalkaji, New Delhi 110019, through its
Managing Director/Director.
2. Sh.Kamal Kishore Gupta, Managing Director/
Director, Omaxe New Chandigarh Developers
Private Limited, Regd. Office at 10, Local
Shopping Centre, Kalkaji, New Delhi 110019.
3. Sh.Bhupinder Singh, General Manager/ Manager,
Omaxe New Chandigarh Developers Private
Limited, Corporate Office at India Trade Tower,
Madhya Marg Extension Road, New Chandigarh,
Mullanpur, SAS Nagar, Mohali, Punjab 160014.
...... Respondents
BEFORE: MRS. PADMA PANDEY PRESIDING MEMBER
PREETINDER SINGH MEMBER PRESENT : Sh. Kunal Dawar, Advocate for the Appellants along with Ms. Ankita Chaudhary, Advocate.
Sh. Arjun Sharma, Advocate for Respondents.
--2--
PER PADMA PANDEY, PRESIDING MEMBER
1. The challenge in the instant appeal is the order dated 15.07.2024 passed by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as "the Ld. District Commission"), vide which, it partly allowed the Consumer Complaint bearing no.CC/569/2020 filed by the Complainants, in the following terms:-
"12. In view of the above discussion, th e present consumer c omplaint suc ceeds and the same is accor dingly allowed. OPs are direct ed as unde r:-
i) to re fund ₹43,73, 125/-to th e complainan ts along with inte rest @ 9% per an num (simple ) from the date of d eposit t ill onwards ;
ii) to pay ₹5,00,0 00/- to the complainant s as compens ation for causin g mental agony and harassm ent;
iii) to pay ₹1 0,000/- to the compla inants as costs o f litigation.
13. This order b e complied with by the O Ps jointly and severally wi thin a period of 45 days f rom the date of receipt of certified c opy thereof , failing wh ich the amo unt(s) mentio ned at Sr. No .(i) & (ii) abov e shall carry pena l interes t @ 12% per annum (simple) from the d ate of exp iry of said p eriod of 45 days, instead of 9% [me ntioned at Sr . No.(i)], t ill realisati on, over an d above paymen t of ligation ex penses."
2. For the convenience, the parties are being referred to, in the instant Appeal, as position held
--3--
in Consumer Complaint before the Ld. District Commission.
3. Before the Ld. District Commission, it was the case of the Complainants (Appellants herein) that they booked a Plot measuring 480.32 sq. yards with the Opposite Parties at their Omaxe Chandigarh Extension Phase 2 Project. The Total price of the said plot was ₹46,41,185/-, out of which the Complainants had already paid 95% of the total payable amount to the tune of ₹43,73,125/- in the year 2011 i.e. before the signing of allotment of letter and Buyer's Agreement. The provisional allotment letter was issued on 24.10.2011 and Buyer's Agreement was executed on 29.02.2012. As per Agreement, the possession of the Plot was to be delivered within a period of eighteen months with a grace period of six months for taking necessary completion and occupation certificate from the competent authority and the said period of 24 months got expired on 01.03.2014, but the possession of the plot was not offered by the Opposite Parties at any point of time. It was averred that the Complainants visited the Opposite Parties number of times, but nothing was done though the site where the
--4--
plot was situated seemed to be developed as there were well connected internal road, park and even constructions were started. It was alleged that instead of offering possession of the plot in question, the Opposite Parties vide letter dated 27.11.2019 offered alternative plot measuring 399 sq. yards as compared to 480 sq. yards of the earlier plot or refund of the amount paid to the complainants on the ground of development issue in the original project, which was out rightly rejected by the complainants vide letter dated 27.01.2020 as the same does not suit them. Thereafter, the Opposite Parties vide letter dated 15.10.2020, again offered an alternative plot or refund of the deposited amount along with Cheques of the deposited amount dated 15.10.2020 by completely ignoring the reply of the complainants sent through regd. post on 27.01.2020 declining the offer of alternative plot as well as refund of the deposited amount. The Complainants have not got the Cheques encashed till date, as they want possession of their originally allotted Plot No.446 BQ measuring 480.32 sq. yards. The Complainants have also requested the Opposite Parties that if they can offer some similarly located plot of their of about
--5--
480 or 500 sq. yards in the same area that would also serve the purpose, but not a plot of lesser area and at the fag end of the Project. However, no such other offer was made by the Opposite Parties to the Complainants. It was alleged that the Opposite Parties changed the numbering/alphabet of the Complainants' Plot from 446BQ to 446BP1. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.
4. In its reply filed before the Ld. District Commission, while admitting the factual matrix of the case, the Opposite Parties pleaded that allotment of Plot No.446BQ was tentative in nature and final allotment was to be made at the time of offer of possession and the complainants were aware about the same. The allotment letter clearly specified the allotment to be tentative/ provisional in nature and final allotment was to be made at the time of issuance of offer of possession. It was asserted that, since, Plot No.446BQ does not exist, as such, the same could not be allotted to the Complainants. Accordingly, they were given an offer to either
--6--
accept the possession of alternative plot or take refund of their deposited amount. It was denied that the Opposite Parties had changed the numbering of Plot No. 446BQ to 446BP1. It was pleaded that Plot No. 446BP1 was always in existence and was not created by changing the numbering of the originally allotted plot to the Complainants i.e. Plot No.446BQ and the said averment was substantiated from the very fact that Plot No. 446BP1 was also vide letter dated October 24, 2011, provisionally allotted to one Smt. Aruna Kumari and the same was accepted by Smt. Aruna Kumari vide letter dated 24.10.2011, which proved beyond doubt that the averment of the Complainants that the numbering of originally allotted plot was changed from 446BQ to 446BP1 was not only wrong and without any basis but was also the creation of their imagination. It was asserted that the Opposite Parties had acted in accordance with the terms of agreement. Denying all other allegations and pleading no deficiency in service, the Opposite Parties prayed for dismissal of the Complaint.
5. On appraisal of the pleadings and the evidence adduced on record, Ld. District Commission partly allowed the Consumer Complaint of the
--7--
Complainants, as noticed in the opening para of this order.
6. Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellants/Complainants.
7. We have heard Learned Counsel for the parties and have also gone through the evidence and record of the case, with utmost care and circumspection.
8. The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it.
9. After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be partly accepted for the reasons to be recorded hereinafter.
10. It is the case of the Appellants that the Ld. District Commission while passing the impugned order has failed to appreciate that the Appellants
--8--
after paying approx. 95% of amount 13 years back for plot did not receive the allotted plot and even the offer for alternative plot was offered after almost 07 years. Also, during all these years, the Appellants had been suffering and their hard earned money has gone in vain. Therefore, the relief granted by the Ld. District Commission instead of a plot is grossly inadequate and does not commensurate with the actual loss suffered by the Appellants and resulted into gross miscarriage of justice and thus deserves to be modified. The learned counsel further argued on the similar lines and prayed for acceptance of the present appeal.
11. Conversely, it has been contended on behalf of the Respondents that the order passed by the Ld. District Commission is quite just & right and does not call for any interference. The detailed finding of facts has already been recorded by the District Commission while rejecting the stand of the Appellants. The learned counsel further argued on the similar lines as stated in the written version filed before the Ld. District Commission and prayed for dismissal of the present appeal.
--9--
12. Per record, Plot No.OCE/446BQ was tentatively allotted to the Appellants/Complainants vide allotment letter dated 29.02.2012, but due to hampered developmental issues said plot got afflicted and as such, vide letter dated 27.11.019 option was given to them to either avail allotment of alternate Plot No.446DL or avail refund of deposited amount. However, receiving no response, the Opposite Parties vide letter dated 15.10.2020 while sending photocopy of Cheque for the amount deposited, requested the Appellants/Complainants to collect the original Cheque from their office. Admittedly, the Complainants have not got the Cheque encashed till date. Thus, apparently since the offer of alternative plot was offered after almost 07 years and pertinently, it has been almost 13 years that the Appellants/Complainants are waiting for the plot and for ventilating their grievance, they knocked the doors of the Ld. District Commission.
13. It is not out place to mention here that during the course of arguments on the submissions of the Learned Counsel for the Complainants that the matter could be amicably settled in case alternative plot of same dimension is provided to the
--10--
Complainants in the same locality and project, the Ld. District Commission vide order dated 07.11.2023 directed the Opposite Parties to furnish the list of suitable plots in the same project and locality along with affidavit of authorized person(s) of the Opposite Parties. In pursuance to the directions issued by the Ld. District Commission, the Opposite Parties vide affidavit dated 22.11.2023 provided three suitable plots of nearby dimensions in the said locality and project. However, as is apparent from the record, neither of three plots suited requirements of the Complainants and as such, was not acceptable to them. It has also come on record that on 11.01.2024, an application was filed by the Appellants/Complainants to allot Unit No.446BL to them in lieu of Plot No.446BQ in pursuance of full and final settlement. As noted hereinabove, the proposed three plots were not suitable to the Complainants. In the application, the Complainants/ Appellants categorically stated that No.446BL admeasuring 612.88 sq. yards booked by his friend (Mr. Sayam Sapra) be allotted to him in lieu of Plot No. 446BL and that they are ready to pay the charges of additional area of said Plot No. 446BL. However,
--11--
the Opposite Parties/ Respondents in their written version asserted that said plot was of much bigger size and did not match the dimension of Complainants' plot therefore the same was not included in the list. To substantiate the same, the Opposite Parties vide application dated 29.04.2024 placed on record relevant documents proving that Plot No.446BL was not available with them on 22.11.2023 and it was only after they received cancellation request dated 06.12.2023 from the original allottee that the said plot was again listed by them in the market. Interestingly, at the relevant point, the lis was pending adjudication and even the Ld. District Commission directed the parties to maintain status quo with respect to Unit/Plot No.446BL. However, clearly ignoring the aforesaid admitted position qua the availability of Plot No. 446BL, the Ld. District Commission has grossly erred in recording a categorical finding that it cannot go beyond the pleadings contained in the Complaint in hand to order the allotment of the aforesaid plot. For the sake of precision, Para 8 of the impugned order reads as thus: -
"8. During the pendency of the complaint the complainants have moved
--12--
an application for allotment of plot
NO.446BL measuring 612.88 sq.yds in
lieu of originally plot No.446BQ
towards full and final settlement and
the complainant is ready to pay the
differential amount of the aforesaid
plots. But this Commission cannot go
beyond the pleadings contained in the
complaint in hand to order the
allotment of the aforesaid plot."
It is thus, evident that the Ld. District
Commission has not given due weightage to the fact that Plot No.446BL was available and that the Complainants/ Appellants were ready to pay charges for additional area of said Plot as the same is admeasuring 612.88 sq. yards and unit allotted to the Complainants was measuring 480.32 sq. yards and they were ready to pay the differential amount for an approx. area of 132.56 sq. yards.
14. As a natural corollary to above, the aforesaid aspects were required to be dealt with by the Ld. Lower Commission threadbare in the light of afore-stated facts. However, the Ld. Lower Commission failed to notice the same and proceeded to record its findings on surmises and conjectures which to our mind, amounts to miscarriage of justice. The cogent
--13--
evidences which were on record and speaking the truth had been ignored and not taken into consideration by the Ld. Lower Commission. To our mind, the Ld. Lower Commission has taken a somewhat inclement view of the matter without entirely appreciating the facts & circumstances in the right perspective. The order passed by the Ld. District Commission therefore warrants its modification.
15. Learned Counsel for the Complainants/ Appellants in support of his claim, relied upon the cases titled Kanpur Development Authority Vs. Sant Lal Yadav, Revision Petition No. 1012 of 2018, decided on 15.11.2023 and M/s Adobe Marketing Pvt. Ltd. Vs. Haryana State Industrial & Development Corporation & 2 Others, Consumer Case No. 17 of 2021, decided on 24.04.2023 by the Hon'ble National Consumer Disputes Redressal Commission. However, with utmost regard at our command, the ratio of the law laid down in aforesaid precedents being distinguishable on facts is of no help to the Appellants/Complainants.
16. No other point was urged by the Counsel for the Parties.
--14--
17. In view of above, the present appeal stands partly accepted. The orders of the Ld. Lower Commission are modified and Opposite Parties are directed to allot Plot No.446BL to the Complainants/ Appellants by issuing a provisional allotment letter within a period of 45 days from the date of receipt of certified copy of this order. It is made clear that whatever the differential amount pursuant to said allotment, the same will be paid by the Complainants/Appellants, at the prevalent rates. The Respondents are also directed to communicate in writing details of the differential amount payable by the Complainants/ Appellants towards the aforesaid Plot after adjusting the amount already paid by them during 2011 with respect to Plot No.446BQ, giving them one month's time to pay such amount. Immediately on receipt of payment from the Complainants/ Appellants, the Respondents/Opposite Parties shall issue a final allotment letter within two weeks of receipt of payment. After issuance of final allotment letter, within a maximum of 45 days, Respondents/Opposite Parties shall execute a conveyance deed and register the same in favour of the Complainants/ Appellants after completion of all
--15--
the requisite formalities in this regard. However, in the peculiar circumstances, since the main prayer of the Complainants/ Appellants has been acceded to, the compensation granted by the Ld. District Commission is set-aside and the other part of the order with regard to litigation costs is upheld.
18. For any delay in issuance of provisional allotment letter beyond 45 days and/or final allotment letter within two weeks of receipt of final payment from the Complainants/ Appellants, Opposite Parties shall be liable to pay a compensation @ ₹5000/- p.m. for the first three months and @ ₹10,000/- p.m. for any delay thereafter till the issuance of provisions/allotment letter as the case may be. Similarly, for any delay in signing of conveyance deed and registering the same beyond 45 days of issuance of final allotment letter, the Opposite Parties shall be liable to pay an additional compensation of ₹5,000/- p.m. for each month's delay or part thereof.
19. The pending application(s), if any, also stands disposed of accordingly.
--16--
20. Certified copies of this order be sent to the parties free of charge.
21. The appeal file be consigned to Record Room, after completion and the record of the Ld. District Commission be sent back immediately. Pronounced 03 r d Dec.,2024 Sd/-
(PADMA PANDEY) PRESIDING MEMBER Sd/-
(PREETINDER SINGH) MEMBER "Dutt"