State Consumer Disputes Redressal Commission
Dr. Ram Kumar Sharma vs M/S Omaxe on 23 July, 2024
C. No. 432/13 D.O.D: 23.07.2024
DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 24.07.2024
Date of hearing: 05.07.2024
Date of Decision: 23.07.2024
COMPLAINT CASE NO: - 432/13
IN THE MATTER OF:
DR. RAM KUMAR SHARMA
RESIDENT OF:
E20/39, SECTOR 3,
ROHINI, DELHI - 110085.
(Through: Mr. Fanish Kumar Rai &
Mr. Gaurav Sahdev, Advocates)
...Complainant
VERSUS
M/S OMAXE LTD.
THROUGH ITS MANAGER
REGISTERED OFFICE:
7, LOCAL SHOPPING CENTRE
KALKAJI, NEW DELHI - 110019.
(Through: Mr. Mukti Bodh, Advocate)
...Opposite Party
ALLOWED PAGE 1 of 13
C. No. 432/13 D.O.D: 23.07.2024
DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'ABLE MS. PINKI MEMBER (JUDICIAL)
Present: Mr. Fanish Kumar, counsel for complainant appeared on VC.
Mr. Mukti Bodh (Enrl. No. D/2527/99, Ph. No. 9958944220),
counsel for OP.
Mr. Pavan Agrawal (Ph. No. 9711800223, email id -
[email protected]), AR of OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGEMENT
1. The present Complaint has been filed by the Complainant before this commission alleging deficiency of service and has prayed the following reliefs:
i. To direct the respondent to immediately get the property registered in the name of the Complainant.
ii. To direct the respondent to provide free parking space to the complainant and refund parking fee with due rate of interest (24% quarterly compounding rate of interest) iii. To direct the respondent to refund the parking fee sum of Rs. 75,000/- to the complainant.
iv. To grant a compensation of Rs. 1,00,000/- (Rupees One Lac only) against the Respondent for mental pain, harassment and financial loss caused to the complainant. v. To award Rs. 31,000/- as cost of litigation in favour of the Complainant and against the Respondent.
vi. Any other orders in favour of the Complainant and against the Respondent which this Commission deems fit and proper.
ALLOWED PAGE 2 of 13
C. No. 432/13 D.O.D: 23.07.2024
DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
2. Brief facts necessary for the adjudication of the present complaint are that one Ms. Bharati Puri booked flat number 103 in the project RITZ Tower in Omaxe North Avenue of the Opposite Party situated in Bahadurgarh, Haryana. Thereafter, an agreement dated 27.03.2007 was executed between the original owner and the Opposite Party.
Subsequently, the Complainant purchased the said flat from the original allottee in December 2012, and the same was duly acknowledged by the Opposite Party vide request form dated 29.12.2012. The Complainant also paid Rs. 27,00,000/- to the Opposite Party towards the payment of the said flat. Therefore, all rights and legalities regarding the said flat were vested in the Complainant. Moreover, the Opposite Party also illegally charged Rs. 75,000/- for Open Parking Space which was supposed to be free. The Complainant also requested the Opposite Party to refund the aforementioned amount charged for the open car parking space.
3. The Opposite Party also sent an offer letter to the Complainant to fulfill the requirements and deposit the concerned documents, and the same was duly submitted by the Complainant on 06.03.2013. The Complainant also paid a registration fee of Rs. 1,49,900/- towards the registration of the said flat in favor of the Complainant. The Opposite Party assured the Complainant that the flat would be registered shortly in March 2013. However, the Opposite Party has failed to register the said flat in favor of the Complainant to date. The Complainant also communicated with the Opposite Party to inquire about the registration of the said flat, but the Opposite Party failed to provide any satisfactory response. The Complainant also sent a legal notice dated 06.05.2013 to the Opposite Party regarding the registration of the said flat, but to no avail.
4. During the course of proceedings, notice was issued to the Opposite Party on 05.08.2014, but the same was not received back. Therefore, on ALLOWED PAGE 3 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
03.02.2015, a fresh notice was issued to the Opposite Party and the same was served. Subsequently, the Opposite Party appeared on 10.09.2015 and filed its vakalatnama. Accordingly, the Opposite Party was directed to file its written statement. However, it is clear from the order dated 17.02.2016 that the Opposite Party failed to file its written statement with stipulated period and requested more time. Therefore, this commission, vide order dated 17.02.2016, closed the right of the Opposite Party to file its written statement. Since the right of the Opposite Party to file its written statement was closed, the averments made by the Complainant in the present case remain unrebutted.
5. The Complainant has filed its evidence by way of affidavits and written arguments.
6. The Opposite Party has filed written arguments and has 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. The Complainant had concealed the fact that the possession of the said flat was taken over on 21.01.2013, therefore, the Complainant ceases to be a consumer. The counsel for the Opposite Party further submitted that this commission does not have pecuniary jurisdiction to adjudicate the present matter. He also submitted that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986.
7. The counsel for the Opposite Party further submitted that the Complainant cannot claim not to pay the stamp duty and get the registration of the conveyance deed, as it is the obligation of the complainant to pay stamp duty and registration charges etc. Also, the Complainant cannot claim not to pay VAT charges, as it is the obligation ALLOWED PAGE 4 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
of the allottee under the agreement. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party argued that the present complaint be dismissed.
8. We have perused the material on record and heard the counsels for the parties.
9. On perusal of record, it is noted that IA-377/2021 was moved on behalf of the Opposite Party for the dismissal of the present complaint. Moreover, the Opposite Party raised the aforementioned preliminary objections.
10. Consequently, this commission, vide order dated 10.11.2023, dealt with the preliminary objections and disposed of the IA-377/2021. The order dated 10.11.2023 passed by this commission is reproduced below:
"By this order we will dispose of the application bearing IA No.377/2021 filed by OP, seeking dismissal of the complaint, inter- alia, on the following grounds:
(i) That the Complainant had concealed that possession of the Unit in question was taken over on 21.01.20213 i.e. much before the filing of the complaint and the same is admitted by the Complainant in its email dated 22.01.2013, which is annexed with the complaint at page No.57.
(ii) That in catena of judgments it is held that allottee ceases to be a consumer after taking over the possession of the unit and consumer complaint at his behest is not maintainable.
(iii)That the complainant is merely an investor, who is doing commercial activities for commercial gains.
(iv) That the complaint is below the pecuniary jurisdiction of this Commission, as the relief sought by the Complainant does not add upto the pecuniary limited of this Hon'ble Commission.
ALLOWED PAGE 5 of 13
C. No. 432/13 D.O.D: 23.07.2024
DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
(v) That the Complainant cannot claim not to pay the stamp duty and get the registration of the conveyance deed, as it is the obligation of the complainant to pay stamp duty and registration charges etc.
(vi) That the complainant cannot claim not to pay VAT charges, as it is the obligation of the allottee under the agreement.
(vii) That there is no cause of action and the complaint is barred by limitation.
Reply to the aforesaid application has been filed by the Complainant, wherein the Complainant has denied the averments made by the OP in the application.
We have perused the material available on record and heard the counsel for the parties.
The first question for consideration is whether Complainants fall in the category of 'consumer' under the consumer protection act, 1986?
The OP has contended that as the possession of unit in question has been taken by the Complainant, therefore, he cease to be a consumer. To resolve this issue, we deem it appropriate to refer to Arifur Rahman and Aleya Sultana and Ors. V. DLF Southern Homes Pvt. Ltd. reported in 2020 (3) RCR (Civil) 544, wherein it is held as under:
"34. The developer has not disputed these communications.
Though these are four communications issued by the developer, the Appellants submitted that they are not isolated aberrations but fit into a pattern. The developer does not state that it was willing to offer the flat purchasers possession of their flats and the right to execute conveyance of the flats while reserving their claim for compensation for delay. On the contrary, the tenor of the communications indicates that while executing the Deeds of Conveyance, the flat buyers were informed that no form of protest or reservation would be acceptable. The flat buyers were essentially presented with an unfair choice of either retaining their right to pursue their claims (in which ALLOWED PAGE 6 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
event they would not get possession or title in the meantime) or to forsake the claims in order to perfect their title to the flats for which they had paid valuable consideration. In this backdrop, the simple question which we need to address is whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title. It would, in our view, be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. This basically is a position which the NCDRC has espoused. We cannot countenance that view.
35. The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.
36. It has been urged by the learned Counsel of the developer that consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of "supply of services"
covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India MANU/SC/0429/2012: (2012) 5 SCC ALLOWED PAGE 7 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
359, this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of 'service' within the meaning of Section 2(1) (o) of the CP Act 1986. This Court held that:
8. Having regard to the nature of transaction between the Appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is Act. It was not the case that the Appellant Company was selling the given property with all its advantages and/or disadvantages on "as is where is" basis, as was the position in UT Chandigarh Admn. v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the Appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the Appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the Respondents.
The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delaved handing over of the flats. "
The above dicta reflects that the Complainant has the right to claim compensation for the delay in handing over the possession of the said flat, which can be pursued after obtaining possession of the property or executing conveyance deeds. Furthermore, the Supreme Court has ALLOWED PAGE 8 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
highlighted the unfair choice faced by flat buyers, where they were forced to either give up their claims to obtain possession and title or retain their claims and forgo possession. Therefore, the contention of OP that the Complainant cease to be consumer after taking possession of the flat holds no merit and is dismissed. As regards the contention of the OP that Complainant is an investor, we deem it appropriate to refer to the judgment 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, has been 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."
From the aforesaid, it is for the OP to prove that the unit in question 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 Complainants. In the present case, the OP has merely made a statement that the Complainants purchased the unit in question 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 flat. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the OP has no merit and stands rejected. As regards the contention of the OP that this Commission has no pecuniary jurisdiction as the relief sought by the Complainant does ALLOWED PAGE 9 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
not add upto the pecuniary limit of this Hon'ble Commission. In CC No.97/2016 titled Ambrish Kumar Shukla & 21 v. Ferrous Infrastructure Pvt. Ltd. decided on 07.10.2016 the Hon'ble National Commission has held that total consideration of the property along with compensation and interest has to be taken in consideration for deciding the pecuniary jurisdiction of consumer fora. In the present case, the total consideration of the unit in question is Rs.27,00,000/- . Thus, this Commission has pecuniary jurisdiction to deal with the matter.
It is contended by the OP that the Complainant cannot claim not to pay the stamp duty and VAT charges and get the registration of the conveyance deed, as it is the obligation of the complainant to pay stamp duty and registration charges etc. It is further contended that the complaint has no cause of action and is barred by limitation. Perusal of record shows that subsequent to taking possession of the unit in question, the complainant had deposited all the required documents with the OP for getting the property registered and also paid registration fees of Rs.1,49,900/- through SBI bearing S. NO.559752, GSR No. /001 dated 02.03.2013 AND A SUM OF Rs.11,236/- as legal fee demand by the OP by cheque No.42657 on 06.03.2013 for getting the property registered in his name. The said amount has been withdrawn by the OP on 08.03.2013. Thus, the averment of the OP that it sent letters and reminder dated 06.03.2014 to the Complainant for payment of increased stamp duty and Complainant failed to pay the same is untenable, as the Complainant has already complied with his obligation under the agreement by making payment of registration fees and legal fees as demanded by the OP. So far as payment of VAT is concerned, the same was upheld by the Hon'ble High Court of Punjab & Haryana vide its order dated 22.04.2015, the same is not applicable to the present case, as the Complainant had complied with all its obligation under the agreement in 2013.
Further, as the conveyance deed has not been executed, the cause of action is continuous in nature and the complaint is within the period of limitation....."
ALLOWED PAGE 10 of 13
C. No. 432/13 D.O.D: 23.07.2024
DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
11. The main question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainant?
12. To resolve this issue, we deem it proper to reproduce section 2(1)(g) of the Consumer Protection Act, 1986 as under:
"(g) "deficiency" means any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
13. We also reproduce section 2(1)(o) of the Consumer Protection Act, 1986 as under:
"(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
14. On perusal of the record, it is clear that the possession of the said flat was handed over to the Complainant on 21.01.2013. However, the Opposite Party has failed to execute the conveyance deed (Registration) for the said flat till date. Further, it is evident from Annexures C-3 and C-4 that the Complainant had submitted all the required documents necessary for the registration of the said flat and also paid Rs. 1,49,900/- towards the stamp duty on 06.03.2013, and the said amount was withdrawn by the ALLOWED PAGE 11 of 13 C. No. 432/13 D.O.D: 23.07.2024 DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
Opposite Party on 08.03.2013. The Complainant vide emails dated 22.01.2013 and 22.03.2013 (Annexure C-2), also requested the Opposite Party to register the said flat in favor of the Complainant as soon as possible, but the Opposite Party failed to respond. Moreover, no evidence has been placed by the Opposite Party to explain the delay in the registration process.
15. After the passage of almost one year, on 16.03.2014, the Opposite Party sent a reminder to the Complainant to pay the increase in stamp duty to complete the registration process. In 2015, the Opposite Party further asked for the increased VAT charges to be paid by the Complainant. However, the Complainant had already completed all the legal formalities towards the registration and paid the stamp duty on 06.03.2013 as per the terms and conditions of the agreement dated 27.03.2007. As far as the payment of VAT is concerned, the Opposite Party relied upon order dated 22.04.2015 titled as CHD developers Ltd. vs. The State of Haryana & others passed by the Hon'ble High Court of Punjab & Haryana, but it is not applicable to the present case, as the Complainant had complied with all obligations under the agreement in 2013.
16. Consequently, the Opposite Party was deficient in providing its services to the Complainant regarding the delay in the registration of the said flat in favor of the Complainant. Therefore, we are of the view that, keeping in mind the facts and circumstances of the present case, any increase in charges during this time shall be payable by the Opposite Party.
17. Furthermore, the Complainant has submitted that the Opposite Party illegally charged Rs. 75,000/- for Open Parking Space, which was supposed to be free. However, it is evident from Annexure B (Part II) to the Complaint that the Complainant was under obligation, as per agreed terms, to pay said charges as they were covered in the additional charges.
ALLOWED PAGE 12 of 13
C. No. 432/13 D.O.D: 23.07.2024
DR. RAM KUMAR SHARMA VS M/S OMAXE LTD.
Moreover, the Complainant failed to show any evidence or document to demonstrate that these charges were objected to by him.
18. Keeping in view the facts of the present case, we direct the Opposite Party to register the said flat in the name of the Complainant within one month from the date of this judgment.
19. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay:
A. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 31,000/-.
20. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
21. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
22. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
23.07.2024 LR-ZA ALLOWED PAGE 13 of 13