Omaxe Chandigarh Extension Complaint for Refund

Omaxe Chandigarh Extension Complaint for Refund wherein refund was allowed for delay in possession.

ALKA KHERA VS M/S OMAXE CHANDIGARH EXTENSION

By stating the act and conduct of the opposite parties, under section 17 of the consumer Protection Act, 1986, it is said to amount to deficiency in providing service and adoption of unfair trade practice, the present complaint has been filed by the complainants, seeking refund of amount paid along with interest, compensation etc.

COMPLAINANT:

Dr. Alka Khera

OPPOSITE PARTIES:

M/s Omaxe Chandigarh Extension Developers Private Limited, Regional Office, through its Authorized Signatory or Regional Head.M/s Omaxe Chandigarh Extension Developers Private Limited, through its Director.

CORUM:

Justice Raj Shekhar Attri, President

Mrs. Padma Pandey, Member

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FACTS:

The complainants have filed this complaint, seeking refund of amount of Rs.48,62,807/- paid by them, to the opposite parties (which fact is not disputed), towards purchase of plot measuring 199.13 square yards, in the project named ‘Omaxe Chandigarh Extension’, Punjab. Total price of the said plot was fixed at Rs.56,27,778.70ps. It is specific case of the complainants that despite making payment of Rs.48,62,807/-, against total sale consideration of Rs.56,27,778.70ps., the opposite parties failed to offer and deliver possession of the plot, on or before 12.10.2017 i.e. within a total period of 30 months (24 months plus (+) 6 months grace period), as envisaged under Clause 35(a) of the Allotment Letter/Agreement. Visits to the project site revealed that the opposite parties will not be able to deliver possession of the plot, even in the next two to three years, for want of development works. Number of requests were made to the opposite parties, to complete development at the project site and deliver possession of the plot, in question, but no positive steps have been taken by them. It was pleaded that on account of act and conduct of the opposite parties, in not completing development works at the project site, the complainants could not start construction on the plot, in question, as a result whereof, they were charged penal interest by the State Bank of India, from which they had obtained loan for making part payment thereof, under Tripartite Agreement.

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ARGUMENTS BY THE OPPOSITE PARTIES:

It was averred by the opposite parties that the complainants did not fall within the definition of “consumer” as defined under Section 2(1)(d) of the Act. They are the owners of a house at Sector 16 Panchkula, as such, they being investors had purchased the plot, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. Territorial and pecuniary jurisdiction of this Commission was challenged.

It was stated that development works in the area, where the plot, in question, is located have been completed. Partial completion has also been applied for, with the Competent Authorities and on receipt thereof, possession will be delivered to the complainants. It was pleaded that that since period to offer possession of the plot was to be computed excluding Saturdays, Sundays and Bank Holidays, no definite period was committed to hand over possession of the plot and also the plot, in question, falls under the category of immovable property, as such, time was not to be considered as essence of the contract. However, in the same breath, it was pleaded that the complaint filed is time barred. It was stated that the complainants defaulted in making payments, towards price of the said plot, as a result whereof, reminders were sent to them, by the opposite parties. Obtaining loan from the State Bank of India, for making payment towards price of the said plot, was prerogative of the complainants, and the opposite parties cannot be made responsible, if the said bank has levied penal interest upon them (complainants). It was pleaded that, in case, still the complainants want refund of the amount paid, forfeiture clause would be applicable.

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JUDGEMENT:

On the objection raised by the opposite parties for want of pecuniary jurisdiction that it is not open to this Commission to entertain and adjudicate this complaint, It may be stated here that as per section 17 (1) (a) (i) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016. As such, in the present case, if total value of the plot, in question, i.e. Rs.56,27,778.70ps., plus compensation claimed by way of interest @12% p.a. on the deposited amount of Rs.48,62,807/- and other reliefs claimed, are clubbed together, it exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide this complaint. Objection taken by the opposite parties, that this Commission lacks pecuniary Jurisdiction, being devoid of merit, must fail and the same stands rejected.

Regarding the objection about the territorial jurisdiction of the Commission to entertain and decide the complaint, it can safely be said that the Company is running its business from the said place at Chandigarh and also the fact that cause of action accrued to the complainants at Chandigarh, as such, this Commission has got territorial jurisdiction to entertain the present complaint, in view of the provisions of Section 17 (2) (a) and (c) of the Act. Objection taken by the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

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The next question, that falls for consideration, is, as to whether, the complainants fall within the definition of a consumer, as defined by Section 2 (1) (d) of the Act, or not. It may be stated here that mere bald objection of the opposite parties that the complainants had purchased the plot, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and is liable to be rejected. There is nothing, on the record, that the complainants are property dealers and deal in the sale and purchase of property, on regular basis. A person cannot be said to have purchased a house for a commercial purpose only by proving that he/she has purchased more than one houses or plots. Separate plots may be purchased by a person for the individual use of his family members. A person may buy two or three houses, if the requirement of his family cannot be met in one house. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1) (d) of the Act. Such an objection, taken by the opposite parties, therefore, being devoid of merit, is rejected.

It is very strange that in the present case, not even an iota of evidence has been placed on record, by the opposite parties, to prove that as to at what stage, development work has reached, in respect of the project, wherein, the plot, in question, is located. Only a bald statement has been given that the development works are complete at the site. In case, the development/construction activities, are being undertaken and in progress, or the same have been completed, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but they failed to do so. Possession was to be delivered by October 2017 and now it is September 2019, still the complainants are empty handed. It is well settled law that non-delivery of possession of plot(s)/unit(s) in a developed project, by the stipulated date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid.

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It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.48,62,807/- was paid by the complainants towards price of the said plot. The said amount has been used by the opposite parties, for their own benefit. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was so said by the Hon`ble Supreme Court of India, in UOI v. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. The complainants are, thus, entitled to refund of the amount paid, along with interest, from the respective dates of deposits, till realization.

Now coming to the objection raised by the opposite parties, to the effect that this complaint is time barred, it may be stated here that since it is an admitted fact, that possession of the plot, in question, has not been offered to the complainants, even by the date when arguments were heard in this complaint, as such, there was a continuing cause of action in their favour, in view of principle of law down, in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr and Meerut Development Authority Vs. Mukesh Kumar Gupta, wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action, in favour of the allottee/buyer. Objection raised in this regard, as such, is rejected.

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In the present case, since the opposite parties themselves were deficient in providing service and negligent, in not developing the project and delivering possession of the plot, by the stipulated date, as promised vide the allotment letter, the complainants were right in not making further payment demanded by them (opposite parties).

This post is written by Gopika Thakur.

For case specific advice please contact Punjab State Consumer Disputes Redressal Commission Lawyer Advocates in Chandigarh Panchkula Mohali Kharar Zirakpur.