State Consumer Disputes Redressal Commission
Smt. Shivanjani Barnwal vs M/S Omaxe Ltd. on 10 March, 2026
C-890/2018 D.O.D.10.03.2026
MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 17.07.2018
Date of Hearing: 19.11.2025
Date of Decision: 10.03.2026
COMPLAINT NO.-890/2018
IN THE MATTER OF
1. MS. SHIVANJANI BARNWAL,
W/O SANJAY BARNWAL
2. MR. SANJAY BARNWAL
BOTH AT:
B-35, 1STFLOOR, PANCHSHEEL ENCLAVE,
NEW DELHI -110017.
(Through: Mr. Sanjay Kumar Advocate)
...Complainants
VERSUS
M/S OMAXE LIMITED,
THROUGH ITS AUTHORIZED PERSON,
REGISTERED OFFICE AT:
OMAXE HOUSE - 7, LOCAL SHOPPING
CENTER KALKAJI, NEW DELHI - 110019.
.
(Through: D & V Legal, Advocates and Solicitors)
...Opposite Party
ALLOWED PAGE 1 OF 16
C-890/2018 D.O.D.10.03.2026
MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS.BIMLA KUMARI, MEMBER (FEMALE)
Present: Mr. Sanjay Kumar, Counsel for the complainants.
Mr. Dhruv Kapur, Counsel for the OP.
PER : HON'BLE JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT
JUDGMENT
1. The present complaint has been filed by the Complainants before this Commission under section 17 of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of Opposite Party and have prayed for the following relief :-
A. To direct the respondents to pay back the entire amount of the principal. amount of Rs. 34,40,158/- (Rupees Thirty four lakhs forty thousand one hundred fifty eight only) along with interest @24% per annum from the date of payment made to the respondent till the date of receipt of the principal amount along with interest to the complainant.
B. Direct the respondents to pay the litigation charges of Rs. 1,00,000/- and Rs. 2,00,000/- on account of mental agony C. To pass such other or further orders) which this Hon'ble Forum may deem fit in the fact and circumstances of this case, so as to be in the of interest of justice
2. The brief facts necessary for the adjudication of the present complaint are that the Complainants vide Application Form dated 02.11.2010, applied for ALLOWED PAGE 2 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED the allotment of a commercial space/shop by paying a sum of Rs.3,50,000/- to the Opposite Party in the project namely Omaxe Connaught Place, situated at Greater Noida, Gautam Budh Nagar, Uttar Pradesh. The Complainants opted for the Flexi Payment Plan in respect of the said space along with assured return of 12%. Accordingly, an Allotment Letter dated 30.12.2010, Addendum to the Allotment Letter dated 30.12.2010 and Lease Agreement dated 30.12.2010 were executed between the parties in respect of the allotted space bearing No. 350/3, admeasuring 350 sq. ft., situated on the Ground Floor of the said project. As per Clause 21(a) of the Allotment Letter, the Opposite Party was required to hand over possession within a period of 24 months, with a further grace period of 6 months, from the date of the Allotment Letter. However, the Opposite Party failed to hand over possession within the possession of the said space till date.
3. Thereafter, the Opposite Party vide letter dated 02.08.2014, assured the Complainants that it was committed to pay the assured lease rental or actual lease rental/revenue sharing from the brand, till the expiry of the assured return period as stated in the Addendum and Lease Agreement. The Opposite Party also intimated that they were in the process of bringing a brand at the earliest. However, the Opposite Parties never intimated any specific time period within which such brand would be finalized. More so, they failed to clarify whether they would continue to pay the assured amount by entering into a fresh agreement in the event no brand was finalized. The subject of the said letter was mentioned as "Offer of Possession of Commercial Space for Carrying out Fit-Out Work". However, there was no specific mention regarding completion of ALLOWED PAGE 3 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED construction of the said space. The Opposite Party also discontinued assured rental period December 2017 in terms of Clause 4.2 of the Lease Agreement dated 30.12.2010.
4. The Opposite Party again sent a letter dated 25.09.2017, wherein they reiterated that they were in the process of identifying a brand company to whom the unit would be leased and also intimated that some brands had already commenced fit-out work in units proposed to be sub-leased. The Complainants vide letter dated 31.03.2018, requested the Opposite Parties to execute a fresh lease agreement so as to continue providing the assured return, as the Complainants were suffering financial loss due to their hard- earned money being blocked in the said shop.
5. The Opposite Party vide letter dated 16.04.2018, intimated that the said space/shop had been given on sub-lease to M/s Aditya Birla Retail Limited but the Opposite Party failed to furnish a copy of any such sub-lease agreement executed between them and the said entity. Further, they also failed to disclose or compensate for the unliquidated period between December 2017 and the alleged sub-lease arrangement.
6. Additionally, as per Clause 6 of the Lease Agreement dated 30.12.2010, possession was to be given only after termination or expiry of the lease. There was no provision for termination during the assured return period up to December 2017. However, at the time of allotment, the Opposite Parties had represented that possession would be delivered within 24 months with a grace period of 6 months. However, the Opposite Parties failed to fulfill the said representation, which amounts to deficiency in service. Aggrieved by the act of the Opposite Party, the Complainants issued a legal notice ALLOWED PAGE 4 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED dated 04.06.2018 seeking refund of the deposited amount along with interest but the same was of no avail.
7. The Opposite Party has contested the present complaint and raised preliminary objections regarding its maintainability. The counsel for the Opposite Party submitted that the Complainants do not fall within the definition of "consumer" under the Consumer Protection Act 1986 as they are speculative investors who invested in the project with the intention of earning profit in the form of rental income, which amounts to a commercial purpose. He further submitted that the Complainants have failed to establish that the said shop was purchased for earning livelihood by means of self-employment. He also submitted that the present complaint is barred by limitation as the last payment towards the said space was made on 06.08.2014, whereas the present complaint was filed in the year 2018. Moreover, the Complainants have failed to disclose any valid cause of action against the Opposite Party.
8. The counsel for the Opposite Party further submitted that the Complainants are attempting to take advantage of their own conduct as they admittedly accepted assured return under the Lease Agreement dated 30.12.2010 amounting to Rs. 22,18,942/- till December 2017 and are now seeking to claim further lease rent. Therefore, the Complainants are not entitled to refund of the deposited amount. Lastly, he submitted that there is no deficiency in service on the part of the Opposite Party, as the Opposite Party has duly fulfilled its contractual obligations in terms of the agreed conditions. Pressing the aforesaid objections, the Opposite Party prayed for dismissal of the present complaint with costs.
ALLOWED PAGE 5 OF 16 C-890/2018 D.O.D.10.03.2026
MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED
9. The Complainants have filed their Rejoinder rebutting the Written Statement filed by the Opposite Party. Both parties filed their Evidence by way of Affidavit to prove their averments on record.
10. The Complainants have filed the written arguments and reiterated the allegations as made in the Complaint.In support of their submissions, the Complainants have relied upon the following judgments:
a. Indu Sodhi Vs. EMM MRF, decided on 11 January 2014 by the State Commission, Chandigarh.
b. Kushal Rana Vs. DLF Commercial Complex Ltd., decided in September 2014 by the National Commission. c. Ms. Iqbal Begum Vs. M.D., Omaxe Ltd., decided on 30 September 2013 by the State Commission, Delhi. d. Laxmi Engineering Works Vs. PSG Industrial Institute, decided on 04 April 1995 by the Hon'ble Supreme Court. e. Cheema Engineering Services Vs. Rajan Singh, decided on 01 November 1996 by the Hon'ble Supreme Court. f. Sharan Jeet Kaur Vs. C and C Tower Ltd., decided on 02 June 2017 by the State Commission, Chandigarh. g. Ajay Ahlawat Vs. M/s Earth Galleria Pvt. Limited, decided on 07 February 2017.
h. Lilavati Kirtilal Mehta Medical Trust Vs. M/s Unique Developers, decided on 14 November 2019 by the Hon'ble Supreme Court.
i. Vipan Kumar & Ors. Vs. Ashok Kumar, decided on 01 April 2014 by the Hon'ble Supreme Court, Shimla.
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MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED j. Anjum Hussain Vs. Intellicity Business Park Pvt. Ltd., decided on 10 May 2019.
k. Rajeev Sharma Vs. Emaar MGF, decided on 30 August 2016 by the State Commission, Chandigarh.
l. Judgement dated 31.01.2023 titled "Nikhil Kumar Garg and Anr. Vs. Gardenview Abode Private Limited.
m. Judgement dated 10.05.2024 titled "Shriram Chits (India) Private Limited Vs. Raghachand Associates."
11. Per contra, the Opposite Party has also filed its written arguments and reiterated the objections raised in the written statement. It relied upon the following judgments:
a. M/s Grand Venezia Buyers Association (Regd.) Vs. M/s Grand Venezia Commercial Towers Pvt. Ltd., CC No. 402 of 2015. b. Priti Arora Vs. ARN Infrastructure Pvt. Ltd., CC No. 246 of 2013.
c. Inderjit Singh Mangat & Anr. Vs. Godrej Properties Ltd., CC No. 274 of 2015.
d. Rajesh Gulati & Anr. Vs. DLF Commercial Complexes Ltd., CC No. 50 of 2011.
e. Arun Chaudhary Vs. Omaxe Ltd., CC No. 1278 of 2018, filed on 11.10.2023 vide Diary No. 15639.
12. We have perused the material available on record.
13. The first question for consideration before us is whether Complainants fall in the category of 'consumer' under the consumer protection act, 1986?
14. The counsel for the Opposite Party submitted that the Complainants are not "consumers" within the meaning of the Consumer Protection Act as they are speculative investors who invested in the project to earn profit in the form of rent, which amounts to a commercial purpose.
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MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED
15. To comment on this issue, we deem it appropriate to refer to Section 2(1)(a) of the Consumer Protection Act, 1986, which provides as under:
(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 8[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 2[but does not include a person who avails of such services for any commercial purpose].
16. The above statutory provision makes it clear that a person who buys goods or avail for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment is a consumer.
17. On perusal of record, it is evident from the allotment letter, addendum to the allotment letter and lease agreement dated 30.12.2010 (Annexure B coly) that the Complainants had booked said space with the Opposite Party. The Opposite Party had also taken consideration of Rs.34,40,158- from the Complainants towards the aforesaid booking. Therefore, the Complainants fall under the category of „consumer‟ provided by the Consumer Protection Act, 1986.
ALLOWED PAGE 8 OF 16 C-890/2018 D.O.D.10.03.2026
MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED
18. Moreover, the Hon‟ble NCDRC, in a series of judgments, has held that the commercial use of a property depends on the facts and circumstances of each case, and that if the commercial use is for the purpose of earning a livelihood by means of self-employment, such a purchaser of goods would continue to be a consumer. A similar view was taken by the Hon‟ble Supreme Court in Civil Appeal No. 5858/2017, titled as Rohit Choudhary & Anr. vs. M/s Vipul Ltd., decided on 06.09.2023, and Civil Appeal No. 12322 of 2016, titled as Lilavati Kirtilal Mehta Medical Trust vs. Unique Shantu Developers & Co., decided on 14.11.2019.
19. Furthermore, on perusal of the record before us, we fail to find any material that shows the Complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to making a profit by the sale of such unit. A mere allegation that the purchase of the property is for commercial purposes cannot be ground to reject the present consumer complaint.
20. The next issue to be adjudicated is whether then present complaint barred by limitation and the Complainants have cause of action against the Opposite Party. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986 wherein it is provided as under: -
"24A. Limitation period. -
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
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MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the Complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint as this such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
21. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that this commission is empowered to admit a complaint if it is filed within a period of two years from the date on which cause of action has arisen.
22. In the present case neither possession of the said space in question has been delivered, nor the amount deposited by the Complainants have been refunded till date. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon‟ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
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MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED
23. Applying the above settled law, it is clear that failure to deliver possession being a continuous wrong which constitutes a recurrent cause of action; therefore, so long as the possession is not delivered to the Complainants. The Complainants are within their right to file the present complaint before this commission.
24. The main question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainants.
25. The Opposite Party submitted that the Complainants there is no deficiency in services on the part of the Opposite Party as it fulfilled its contractual obligation with respect to the said booking of the Complainants.
26. At outset, the expression Deficiency of Service has been dealt with by the Hon‟ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(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.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in ALLOWED PAGE 11 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the Opposite Party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation."
27. The above dicta reflect that failure on the part of the developer to deliver possession of the flat/unit to the purchaser within the contractually stipulated period constitutes a deficiency in service.
28. At this stage, it is appropriate to refer to Clause 21 of the allotment agreement dated 30.12.2010, which is reproduced as hereunder:
"That the Company shall endeavour to complete the construction of the Unit within Twenty Four (24) months from the date of signing of this Allotment Letter or within an extended period of six (6) months, subject to force majeure conditions [as mentioned in Clause (b) hereunder) and subject to various unit Allottee(s) making timely payment and subject to any other reasons beyond the control of the Company...."
29. It reflects that the Opposite Party was to hand over possession of the said unit within 24 months from the date of signing of this Allotment Letter plus ALLOWED PAGE 12 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED grace period of six months. However, the Opposite Party failed to hand over the possession of the said space till date.
30. Further, we find that vide letter dated 02.08.2014, the Opposite Party offered possession of the space to the Complainant for fit-out work and stated that the construction of the project was on the verge of completion. Therefore, it is clear that the Opposite Party had failed to complete the construction by 02.08.2014, despite the fact that the stipulated period for completion had already expired on 30.06.2013 including the grace period.
31. Moreover, the Opposite Party failed to place anything on record to show the reasons for the delay in completing the construction of the space. The Opposite Party has also failed to produce any document or evidence to show that the delay in the project was attributable to any force majeure circumstances.
32. Further, it is clear that a Lease Agreement dated 30.12.2010 was executed between the parties. As per Clause 4.2 of the said agreement, the Opposite Party was required to pay assured rental to the Complainant till December 2017. The Opposite Party paid the assured return up to the year 2017.
33. Here, we deem it appropriate to refer to Clause 7.1.2 of the Lease Agreement, which specifies the obligations of the parties after expiry of the Assured Rental Period, which is reproduced below:
"7.1.2. Post the Assured Return Period Pursuant to expiry of the Assured Rental Period, the Lessee either pay an amount equivalent to the actual Sub-Lease Rent less Administrative Charges to the Lessor for the remaining period of the Term ("Remaining Lease Rent") or arrange to pay the, Lessor Remaining Lease Rent through the Third Party Lessee on the 10 day of every English Calendar ALLOWED PAGE 13 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED month. Initial Rent, Sub-Lease Benefits, and Remaining Lease Rent are hereinafter collectively referred as "Rent""
34. From the above, it is apparent that after expiry of the Assured Rental Period, the Opposite Party was under an obligation either to pay to the Lessor the actual Sub-Lease Rent after deducting administrative charges for the remaining lease period or to ensure that such Remaining Lease Rent was paid to the Lessor through a Third Party Lessee by the 10th day of every English calendar month. Thus, the Opposite Party was contractually bound to continue payment of the Remaining Lease Rent in the manner prescribed under the agreement even after the assured return period ended.
35. However, the Opposite Party neither paid the actual Sub-Lease Rent after deduction of administrative charges nor arranged any Third Party Lessee for payment of the Remaining Lease Rent to the Complainants as required under Clause 7.1.2 of the said agreement. As a result, the hard-earned money of the Complainants remained blocked with the Opposite Party. Thus, the Complainants neither received possession of the space nor the investment return in terms of rent. More so, the Opposite Party has failed to explain the delay in handing over the said space to any lessee within reasonable period. No material has been placed on record to justify such delay. Therefore, it is clear that the Opposite Party failed to take adequate and timely to fulfill its contractual obligations.
36. Furthermore, it is evident from the record that the Opposite Party entered into a sub-lease agreement with M/s Aditya Birla Retail Pvt. Ltd. and it started receiving rent from March 2019 onwards. However, the Opposite Party has failed to pay the said rent to the Complainants till date. Per contra, the Opposite Party submitted that it had intimated the Complainants ALLOWED PAGE 14 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED and requested them to furnish necessary details for release of rent but no document has been placed on record to substantiate the said submission. Be that as it may, it cannot be denied that after December 2017, the Opposite Party failed to fulfill its contractual obligation to pay the Remaining Lease Rent to the Complainants. The Opposite Party did not transfer the same to the Complainants even after creating a sub-lease and receiving rent from the sub-lessee.
37. In view of the above, we hold that the Opposite Party is deficient in providing its services to the Complainants in arranging any Third Party Lessee for payment of the Remaining Lease Rent to the Complainants, as required under Clause 7.1.2 of the said agreement.
38. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainants i.e., Rs. 34,40,158/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 10.03.2026 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party no.1 pays the entire amount on or before 10.05.2026; C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 10.05.2026, the entire ALLOWED PAGE 15 OF 16 C-890/2018 D.O.D.10.03.2026 MS. SHIVANJANI BARNWAL & ANR. VS M/S OMAXE LIMITED amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
39. 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:
A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
40. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
41. 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 https://e-jagriti.gov.in for perusal of the parties.
42. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On:
10.03.2026 LR-ZA ALLOWED PAGE 16 OF 16