State Consumer Disputes Redressal Commission
Omaxe Chandigarh Extension Developers ... vs Krishan Kumar Nanda on 14 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 87 of 2014 Date of Institution : 06.03.2014 Date of Decision : 14.05.2014 Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Director, SCO No.139-140, First Floor, Sector 8-C, Madhya Marg, Chandigarh. 2nd Address: Corporate Office: 10 LSC, Kalkaji, New Delhi 110019. Through its Authorized Signatory Sh. Harsh Bhargav, Manager (Legal), Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.139-140, First Floor, Sector 8-C, Madhya Marg, Chandigarh. Appellant/Opposite Party. Versus 1. Sh. Krishan Kumar Nanda son of Late Sh. Amar Nath Nanda, 2. Mrs. Renu Nanda wife of Krishan Kumar Nanda, both residents of House No.821, Sector 12, Panchkula (Haryana). ....Respondents/Complainants. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by: Sh. Munish Gupta, Advocate for the appellant.
Sh. Deepak Aggarwal, Advocate for the respondents.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 27.01.2014 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant and directed the Opposite Party (now appellant) as under:-
15. For the reasons recorded above, we find merit in the complaint and the same is allowed. OP is directed :-
i) To make refund of an amount of Rs.1,49,000/- to the complainants with interest @9% p.a. from the date of deposit till realization.
ii) To make payment of compensation of an amount of Rs.15,000/- to the complainants for mental agony and harassment.
iii) To make payment of an amount of Rs.10,000/- to the complainants towards costs of litigation.
16. This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, the amounts mentioned at S.No.(i) to (ii) of the para aforesaid shall carry penal interest @12% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation, as mentioned above.
2. The facts, in brief, are that the complainants were on the look out, for a suitable residential plot, where they could construct their house, according to their choice. It was stated that the Opposite Party floated a scheme for allotment of residential plots, in the township project known as Omaxe Chandigarh Extn. proposed to be developed, on the land, falling in certain villages in Mullanpur LPA (GMADA), District SAS Nagar (Punjab). It was further stated that being allured by the attractive advertisements, rosy picture of the plots, and the assurance of completion of development of the project, within 18 months, from the date of signing the allotment letter, by the allottee, subject to force majeure conditions, the complainants booked a plot with the Opposite Party measuring approximately 301.38 sq. yards/251.99 sq. meters in its project, for a total sale consideration of Rs.57,21,811.12Ps including preferential location charges, additional cost, and maintenance security. It was further stated that the Opposite Party provisionally allotted one plot bearing No.OCE/II/180 to the complainants vide provisional allotment letter dated 12.12.2011, Annexure C-1 and, thereafter, allotment letter dated 26.3.2012, Annexure C-2, was signed by the complainants/allottees. It was further stated that the allottees had nightmarish, horrible and grotesquely disappointing experience, when they noticed that in the terms and conditions of allotment letter dated 26.3.2012, it was mentioned that the development of plot/project would be completed within 18 months, from the date of issuance of the same, and not from the date of issuance of provisional allotment letter. It was further stated that in the allotment letter dated 26.3.2012, there was a mention of some additional circumstances, apart from force majeure conditions, and some of the clauses regarding interest were totally inequitable. It was further stated that since the complainants had already parted with some of their hard earned money, they were left with no other option, than to deposit a total sum of Rs.35,51,537/- with the Opposite Party, vide receipts, Annexure C-3 to C-13.
3. It was further stated that despite depositing the aforesaid amount, there were still no visible marks of development, in the area, where the project was to be developed. It was further stated that on visiting the site of project in the last week of December, 2012, the complainants noticed that there was a thick cover of jungle at the place and some portion thereof was still covered by the sugarcane crops etc. It was further stated that there was every apprehension that the project was not likely to be completed within the stipulated period of 18 months. It was further stated that the said fact was duly brought to the notice of the Opposite Party, but instead of clarifying the status of the project, as a counterblast, it issued letter dated 4.1.2013, Annexure C-14, to the complainants, as last and final chance, for making payment of Rs.9,19,118.19Ps alongwith interest of Rs.1,35,538/- within 10 days. It was further stated that letter dated 4.1.2013 was received by the complainants only on 21.1.2013. It was further stated that the complainants were always ready and willing to make the entire legal payment but they wanted to get information about the zoning plan, completion certificate, external development charges, No Objection Certificates, obtained from various Government Authorities, in the interest of transparency equity and justice. It was further stated that the complainants replied to the illegal demand letter dated 4.1.2013, vide letter dated 24.1.2013 (Annexure C-15), by putting the above said queries. It was further stated that vide letter dated 27.1.2013, Annexure C-20, the Opposite Party raised a demand of a total sum of Rs.14,96,177.37Ps alongwith interest of Rs.1,51,967/- and further vide letter dated 21.3.2013, Annexure C-21, demanded interest of Rs.1,74,031/-. It was further stated that the said demand notices did not disclose, as to how the calculations regarding interest were made. It was further stated that the complainants were left with no alternative, but to sell their plot to a third party.
4. It was further stated that when the complainants demanded NOC, the Opposite Party asked for payment of Rs.1,74,031/- towards interest @24% on account of delayed payments and inspite of repeated requests and reminders, it illegally charged a total sum of Rs.1,49,000/- i.e. interest @18% on the delayed payment, in the name of NOC. It was further stated that the complainants deposited the said amount, under protest, but the Opposite Party told them that in case NOC was required, it would not allow them to use the word under protest. It was further stated that in such constrained circumstances, the complainants paid the said amount vide receipts, Annexure C-22 and C-23. It was further stated that soon after the encashment of cheques of Rs.1,49,000/- and, issuance of NOC, the complainants wrote protest letter, Annexure C-24, to the Opposite Party informing that the above said amount had been deposited under constrained circumstances. It was further stated that the Opposite Party, was guilty of prevarication and suppression of truth and material facts and unfair trade practices. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing to refund the amount of Rs.1,49,000/- alongwith interest @18% per annum, pay Rs.1 Lac as compensation for mental agony and physical harassment and Rs.21,000/- as cost of litigation.
5. The Opposite Party, in its written statement, stated that the complainants concealed the fact that originally Mr. Pushpinder Singh and Mr. Pritpal Singh applied for the allotment of a plot vide application form, Annexure R-1. It was further stated that the complainants were purchasers from said Pushpinder Singh etc. and they made a request for endorsement, Annexure R-2 alongwith endorsement form, Annexure R-3. It was further stated that they also gave one affidavit-cum-undertaking, Annexure R-4. It was further stated that the complainants were not covered under the definition of Consumers as per the Consumer Protection Act. It was further stated that the complainants were clear-cut investors, because they invested their money, in the said property, in April, 2011 and applied for assignment of rights, in their favour and now they had sold the same property, in favour of Mr. Ashok Kumar Verma and Ms. Lilly Verma, by submitting the assignment request and affidavit, Annexures R-5 and R-6. It was further stated that the purpose of the complainants was purely commercial and the property was not purchased for self utilization. The factum of issuance of receipts, Annexure C-3 to C-13, was admitted. It was further stated that the complainants were reminded of the time schedule of making the same time and again, but they failed to make the payment in time and, at no stage, any protest to the terms and conditions was lodged by them. It was further stated that the project of the Opposite Party was in full swing and could not be termed to be late. It was further stated that the allotment letter, dated 26.3.2012, provided for 18 months + extended six months, from the date of issuance of allotment letter, and till date, cause of action regarding the property, in dispute, for possession had not arisen. It was further stated that the demand raised by the Opposite Party from the complainants, was wholly legal and as per the agreed terms and conditions. It was further stated that the interest of Rs.1,49,000/- was not paid by the complainants, under protest. It was further stated that the Opposite Party charged interest @18% per annum instead of @24% per annum on delayed payments, as a goodwill gesture. It was further stated that the receipts, Annexure C-22 and C-23, showed that the payment was made on 2.5.2013 and, as such, the question of protest letter on 19.4.2013 did not at all arise. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
6. The complainants filed replication, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
10. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellant/Opposite Party submitted that the respondents/complainants instituted the complaint alleging delay in the project and, thus, they (respondents/complainants) were forced to sell the property. It was further submitted that Plot Buyers Agreement was executed on 26.03.2012 and as per Clause 24(a) of the same, the possession was to be delivered within 24 months i.e. by March 2014, whereas the respondents/complainants sold the property on 16.4.2013 (Annexure R-6). It was further submitted that the payment was never made as per the payment schedule (Annexure B-III) and without waiting for the date of completion, as promised, the complainants sold the property to some other persons, which meant that the property was purchased for investment purposes to enrich themselves. It was further submitted that the complainants were, thus, not consumers. It was further submitted that the interest charged, while issuing No Objection Certificate, was on account of delay in payments and as per the terms and conditions of the Plot Buyers Agreement. It was further submitted that the respondents/complainants relinquished all their rights, in favour of the subsequent purchaser/allottee, by their sworn affidavit-cum-indemnity bond on 16.04.2013. It was also submitted that receipts (Annexures C-22 and C-23) showed that payment was made on 2.5.2013 and, therefore, the question of protest letter dated 19.4.2013 did not arise. It was further submitted that the District Forum erred in appreciating that the accounts between the parties stood settled by virtue of said affidavit/undertaking. It was further submitted that the respondents/complainants, for the first time, raised grievance regarding supplying all documents and, at that time, the rights in favour of the subsequent purchaser already stood assigned. It was further submitted that a sum of Rs.1,49,000/- before issuing the No Objection Certificate was rightly charged. It was further submitted that the District Forum fell in an error in appreciating the judgment of this Commission passed in First Appeal No.337 of 2012 titled B. R. Chauhan Vs. Omaxe Chandigarh Extn. Developers Pvt. Ltd. & another, decided on 13.12.2012. It was further submitted that the appeal be allowed and the order of the District Forum, being illegal, null, void and against the settled law, be set aside.
12. The Counsel for the respondents/complainants submitted that Plot Buyers Agreement (Annexure C-2) was executed on 26.3.2012 and, till then, 40% of the Basic Sale Price (BSP) was to be deposited and the same viz. a sum of Rs.29,56,537/- stood duly deposited by the respondents/complainants and the fact that the previous purchaser and the respondents/complainants made a total payment of Rs.29,56,537/-, even prior to signing of allotment letter dated 26.3.2012, clearly finds mention in Para 10 of the District Forum order. It was further submitted that the payment of Rs.29,56,537/- was also proved from receipts (Annexures C-3 to C-8). It was further submitted that clearly there was deficiency as the provisions of Section 6 of Punjab Apartment and Property Regulation Act, 1995 (Punjab Act No.14 of 1995) (hereinafter to be referred as the PAPRA 1995), were not complied with by the appellant/Opposite Party. It was further submitted that the appellant/Opposite Party, while asking for payment of Rs.9,12,118.19Ps, did not specify, as to how the amount was calculated. It was further submitted that a detailed reply to the demand notice (Annexure C-14) was sent through registered post letter dated 24.01.2013 (Annexures C-15 and C-16 respectively). It was further submitted that the appellant/Opposite Party did not clarify, as to how, the amount of interest was worked out. It was further submitted that the payment of Rs.1,49,000/- was made, under protest, and it was submitted that in these circumstances, the respondents/complainants were constrained to sell the property. It was further submitted that after making payment, the protest letter dated 19.4.2013 (Annexure C-24) was issued. It was further submitted that the order of the District Forum, being just and fair, is liable to be upheld.
13. It is evident that plot No.OCE/II/180 was purchased by the respondents/complainants by endorsement from the appellant/Opposite Party, on 06.04.2011 (Annexure R-3). The Plot Buyers Agreement was executed on 26.3.2012 (Annexure C-2). Admittedly, the respondents/complainants deposited a total sum of Rs.35,51,537/- with the appellant/Opposite Party (Annexures C-3 to C-13), as per following details:-
Sr. No. Amount deposited (Rs.) Date of Deposit Annexure (Receipts)
1.
13,50,000.00 7.12.2010 C-3
2. 7,50,000.00 29.6.2011 C-4
3. 1,56,537.00 13.2.2012 C-5
4. 7,00,000.00 13.2.2012 C-6
5. 45,000.00 18.4.2012 C-7
6. 45,000.00 18.4.2012 C-8
7. 50,000.00 18.4.2012 C-9
8. 55,000.00 18.4.2012 C-10
9. 50,000.00 13.2.2013 C-11
10. 50,000.00 13.2.2013 C-12
11. 3,00,000.00 13.2.2013 C-13 Total:
35,51,537.00
14. The first question, which falls for consideration, is, as to whether, the respondents/complainants, were consumers within the definition of Section 2(1)(d) of the Act. The Counsel for the appellant/Opposite Party submitted that when the respondents/complainants assigned their rights, in favour of the subsequent purchasers, by their sworn affidavit-cum-indemnity bond on 16.04.2013, they were no longer the consumers. The protest letter is dated 19.04.2013, whereas the payment was made on 2.5.2013. Even if, it is accepted that the respondents/complainants raised their protest immediately i.e. on 19.4.2013, but it is very clear from Para No.3 of affidavit-cum-undertaking dated 16.4.2013 (Annexure R-6) executed by the respondents/complainants that they assigned and relinquished all their rights, titles and claims, whatsoever, in favour of the assignee. Para 3 of the said affidavit-cum-undertaking, is extracted hereunder:-
3. That I/we have out of my/our own consent and sweet will assign the aforesaid allotment and have relinquished all my/our rights, titles and claims whatsoever in favour of my Assignee(s) Ashok Kumar Verma S/W/D of Sh. Prakash Narayan Resident of Plot No.54, 1st Floor, Ashiana Green, Indirapuram, Ghaziabad and Lily Verma S/W/D of Ashok Kumar Verma Resident of Plot No.54, 1st Floor, Ashiana Green, Indirapuram, Ghaziabad (hereinafter referred to as the Assignee(s) and shall have no claim over the aforesaid allotment/unit or against the Company hereinafter.
15. Thus, once the respondents/complainants relinquished their rights, in favour of the assignees, they ceased to be consumers, qua the appellant/Opposite Party. The respondents/complainants were thus not consumers at the time of filing the complaint.
16. The respondents/complainants were governed by the interest free installment linked payment plan. It was obligatory on their part to make the payments as per the payment schedule, which they did not adhere to. Further the possession of the plot, in question, as per the terms and conditions of the allotment letter dated 26.3.2012, was to be delivered in March 2014, and, as such, the complaint having been filed in July 2013, was premature.
17. The next question, which falls for consideration, is, as to whether, a sum of Rs.1,49,000/- charged by the appellant/Opposite Party was charged correctly or not. As per Annexure B (Part III), which is a payment Plan of the plot, forming part of the allotment letter dated 26.3.2012, the respondents/complainants opted Plan A, which is extracted hereunder:-
PLAN A INTEREST FREE INSTALLMENT LINKED PAYMENT PLAN
1.
At the time of booking 25% of BSP
2. At the time of Allotment 15% of BSP
3. Within next 2 months of Allotment 10% of BSP + 100% of PLC (if any)
4. Within next 2 months 10% of BSP + 50% of Additional Cost
5. Within next 3 months 10% of BSP
6. Within next 3 months 10% of BSP + 50% of Additional Cost
7. Within next 3 months 10% of BSP
8. Within next 3 months 5% of BSP
9. On offer of possession 5% of BSP + Stamp Duty + Registration Charges + Other Charges
18. Since the allotment was made on 26.3.2012, as per the aforesaid Plan, opted by the complainants, 40% payment was required to be remitted upto the date of allotment i.e. 26.3.2012 and another 40% + 100% of PLC + additional cost within next 10 months i.e. upto 26.1.2013. Thus, in all, 80% of BSP (Rs.57,21,811), which comes to Rs.45,77,448/- + additional cost was to be deposited till January 2014 and, for any delay, interest was payable. As per notice dated 4.1.2013 (Annexure C-14), a sum of Rs.9,19,118/- + Rs.1,35,538/- towards interest became due against the respondents/complainants. Further, as per notice dated 27.1.2013 (Annexure C-20), a sum of Rs.14,96,177.37Ps alongwith interest to the tune of Rs.1,51,967/- was due against the respondents/ complainants. It is borne out from Annexures C-11 to C-13 that payment in the sum of Rs.4 Lacs was made by the respondents/complainants, after issuance of notice dated 4.1.2013. Since the complete payment, as due, was not made, the appellant/Opposite party issued notice dated 21.3.2013 (Annexure C-21) asking the respondents/complainants that as per the payment Plan opted/time linked payment plan, a sum of Rs.10,96,177.37Ps alongwith interest of Rs.1,74,031/- totalling to Rs.12,70,208/- was due. Clause 14 of allotment letter dated 26.3.2012 (Annexure C-2), interalia, states that ..However, in exceptional circumstances the Company may, in its absolute discretion, condone the delay in payment by charging penal interest at the rate of 18% p.a. on the amount outstanding upto one month delay from the due date of outstanding and at the rate of 24% per annum thereafter on all outstanding dues from their respective due dates..
19. Thus, when there was delay in making the payment, the appellant/Opposite Party in accordance with the terms and conditions of allotment letter dated 26.3.2012 was entitled to levy interest for delayed payment. Though the amount of interest, as per Annexure C-21, came to be Rs.1,74,031/- yet only a sum of Rs.1,49,000/- was charged. No cogent and convincing evidence that interest of Rs.1,49,000/- was not payable, has been adduced by the respondents/complainants. The District Forum, by not appreciating the facts and the evidence correctly, wrongly held that there was deficiency, in rendering service on the part of the appellant/Opposite Party, and the respondents/complainants were entitled to get back the amount of Rs.1,49,000/- alongwith interest and compensation for harassment. The case titled Mohit Gupta Vs. Greenbay Infrastructure Pvt. Ltd., IV (2013) CPJ 533 (NC), relied upon by the Counsel for the respondents/complainants, are distinguishable on facts and the same are of no help to the respondents/complainants. In the instant case, the respondents/complainants had opted for interest free payment linked plan, they were bound to make the payments, but when they failed to do so, the appellant/Opposite Party rightly charged the interest.
20. No other point, was urged, by the Counsel for the parties.
21. In view of the above discussion, it is held that the District Forum, erred in allowing the complaint and order passed by it, suffers from illegality, warranting the interference of this Commission.
22. For the reasons recorded above, the appeal, filed by the appellant/Opposite Party, is accepted, with no order as to costs. The order of the District Forum is set aside. Consequently, the complaint filed by respondents/ complainants, before the District Forum, is dismissed with no order as to costs.
23. Certified Copies of this order be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
May 14, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Ad STATE COMMISSION (First Appeal No.87 of 2014) Argued by: Sh. Munish Gupta, Advocate for the appellant.
Sh. Deepak Aggarwal, Advocate for the respondents.
Dated the 14th day of May, 2014 ORDER Vide our detailed order of the even date, recorded separately, this appeal, has been accepted, with no order as to costs. The order of the District Forum has been set aside. Consequently, the complaint filed by respondents/complainants, before the District Forum, has been dismissed with no order as to costs.
Sd/-
(DEV RAJ) MEMBER Sd/-
(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Ad