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M/s. Omaxe Construction, Head office- 7 Local Shopping Centre, Kalkaji, New Delhi through authorized representative Rajendra Kumar Gupta v/s Pummi Batra & Another

    First Appeal Nos. 271 & 272 of 2016

    Decided On, 21 February 2017

    At, Rajasthan State Consumer Disputes Redressal Commission Jaipur

    By, THE HONOURABLE MRS. JUSTICE NISHA GUPTA PRESIDENT & THE HONOURABLE MRS. MEENA MEHTA MEMBER

    For the Appellant: Rajesh Maharshi counsel. For the Respondents: Mohit Gupta counsel.



Judgment Text

Nisha Gupta, President

Both these appeals have been filed against the similar order hence, are decided by this common order.

The facts of the case are that the respondents husband and wife have booked flat with the appellants. Further facts are being taken from Appeal No. 271/2016.

Facts are not in dispute that the complainant booked two bedroom flat with the appellants on 25.6.2006 and deposited the amount of Rs. 2,50,000/-. Thereafter he was informed vide Anx. 2 that computerized draw of the flats would be held on 28.3.2009 and the booking was for Omaxe City,Ajmer Road, Jaipur. Vide Anx. 3 the complainant respondent was allotted provisionally Apartment bearing no. 701 on 7thfloor in Trump 1 Tower and in Anx. 3 it has also been made clear that they are becoming a part of Omaxe City. The contention of the appellant before the Forum below was that within one year of the booking the flat should have been allotted which was done after three years and till 2012 the construction has not been started. Hence, they demanded their money alongwith interest. The Forum below has ordered for refund of the money alongwith 18% interest and exemplary cost and cost of proceedings. Hence, this appeal has been filed.

The contention of the appellant is that they are not deficient in service. The money was not paid as per payment plan hence, allotment was cancelled on 4.5.2011. The respondent never demanded money from them and admittedly the flat was booked on 25.6.2006 whereas the complaint is filed in 2013 which is barred by limitation. Two flats have been purchased hence, consumers are investors and do not fall under the category of 'consumer'. They repeatedly gave reminders Ex. R 4 to 6 but money has not been paid. Hence, cancellation was justified on the part of the appellant.

Per contra the contention of the respondent is that they booked flat in 2006. Paid the requisite money but allotment was made after much delay in 2009 and then appellants gave them option to change the allotment in their new housing project 'Omaxe Executive Homez' . The allotment was never cancelled and still money is lying with the appellants. Hence, they have continuous cause of action. In 2010 they proposed flat in another scheme which they never consented. Construction still not started hence, the appellants are deficient in service. They have purchased residential flat for their use hence, falls under the category of 'consumer' and the Forum below has rightly allowed the claim.

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

There is no dispute about the fact that the respondents have booked flat with the appellants and deposit receipt Anx. 1 is filed. Vide Anx. 3 letter dated 2.5.2009 provisional allotment for a particular flat in Omaxe City was made. Thereafter vide Anx. 4 and 5 the appellants gave option to the consumer for allotment of flat in new housing project which was never consented by the respondents and Rs.161562.50 were also demanded but as the respondents were not interested in new housing project they have not deposited the amount. Hence, the respondent could not be said to be defaulters and the Forum below has rightly held so.

The facts of the case clearly shows that inspite of the registration in 2006 the allotment was not made within the stipulated period and further more after allotment in 2009 the possession of the property was not handed over to the respondents. Hence, deficiency on the part of the appellant is writ large. It has been stated on behalf of the appellant that allotment was cancelled but no such communication was placed before the Forum and further more when appellants were deficient, they were not entitled for cancellation of the flat and the Forum below has rightly held that the appellants are deficient.

The contention of the appellants is that complaint is time barred as the flat was booked on 25.6.2006 but booking of the flat do not give rise to any cause of action in favour of the respondent. As per contention of the appellants the allotment was cancelled on 4.5.2011. Be that may be the case the complaint has been filed on 14.2.2013 which is within the limitation of two years. Hence, the contention as regard to limitation is not worth acceptance.

The further contention of the appellants is that the respondent has not demanded money from them any time between 2006 to 2014. Be that may be the case it was not the duty of the respondent to claim money from the appellants as they have booked the flat and construction and handing over the possession of the property was the duty of the appellants and lastly the respondents have served notice Ex.6 in 2012 to the appellants. Hence, no lapse could have been shown on the part of the respondent.

The contention of the appellants is that as per Anx. R 3 plan the money was to be paid and the respondents are defaulters but Anx. R 4 to 6 clearly speaks that the appellants were not ready to give possession of the property in Omaxe City and they have given option to the respondent to have allotment in other housing project which was never consented by the respondents. Hence, they cannot be labeled as defaulters.

The further contention of the appellant is that when two flats were booked, it was for commercial activity but this contention has no force as admittedly the flats were booked in residential project and both the respondents have booked them as individual and they fall under the category of 'consumer'.

The last contention of the appellant is that exemplary cost has been awarded which was never pleaded by the respondents and further more as per Anx. R 2 only 9% interest was payable on the refund of the money whereas the Forum below has awarded 18% interest. Hence, the compensation should be reduced reasonably.

It is true that 18% interest has been awarded whereas as per Anx. R 2 agreed interest rate between the parties was 9% and the appellants have relied upon judgment passed by the National Commission in Consumer Case No. 427/2014 Satish Kumar Pandey & anr. Vs. M/s. Unitech Ltd. where the National Commission has held as under:

'A consumer coming to the Consumer Forum alleging deficiency on the part of the opposite party in rendering services to him can seek and recover a just and fair compensation but cannot seek to earn profit like in a commercial venture.'

There is no dispute about the preposition but in IV (2016) CPJ 273 (NC) Sanjay Arora Vs. Unitech Ltd. the National Commission has held as under:

'The second submission made by Mr.Sukumar Pattjoshi learned senior advocate, was that as per the agreement, the amount should be given with simple interest @ 10% per annum.

We clap no importance to this submission. In K.A. Nagamani Vs. Karnataka Housing Board, IV (2016) SLT 482= Civil Appeal Nos. 6730-31 of 2012 decided on 19.9.2012, the Hon'ble apex court while relying upon the judgment passed in Ghaziabad Development Authority Vs. Balbir Singh, II (2004) CPJ 12 (SC)=III (2014) SLT 161= (2004) 5 SCC 65, has held that 'But in cases where monies are being simply returned, then the party is suffering a loss inasmuch as he' had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore, the compensation in such cases would necessarily have to be higher'. The apex court further observed as under:

'25. The case of the complainant is covered by one of the examples cited by this court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above. In this case also the amount was simply returned and the complainant is suffering a loss inasmuch as she had deposited the money in the hope of getting a flat, but she is being deprived of that flat and thereby deprived of the benefit of escalation of the price of that flat. Therefore, the compensation in this case should necessarily have to be higher as per the decision of this court.'

In view of the above the Forum below was justified in imposing 18% interest.

The further contention of the appellants is that Rs.15 lakhs exemplary cost has been imposed which is on higher side and the respondents have not pleaded for the same and reliance has been placed on 2014 AIR SCW 6599 General Motors (India) Pvt. Ltd. Vs. Ashok Ramnik Lal Tolat where case was in relation to other consumers also falling under section 14 (hb) and the apex court was of the opinion that there is no averment in the complaint to the effect but here in the present case the order clearly falls under the proviso to section 14 (d) where the District Forum have the power to grant punitive damage in such circumstances as it deems fit and here in the present case the facts of the case goes to show that the appellants were not only deficient but they have adopted unfair trade practice by not giving possession of the property to the respondent and just to show their bonafides they ga

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ve option to the respondents for another project which was admittedly not consented by the respondents at any time. The appellants could not show the completion certificate of the property hence, it is more than clear that the property is still not constructed and the respondent has also specifically pleaded in the original complaint that still construction has not been started which could not be rebutted by the appellants by filing completion certificate. Hence, the facts of the case clearly suggest that exemplary cost should have been imposed but in view of the facts Rs. 15 lakhs cost seems to be on higher side as the respondent has deposited only Rs. 2,50,000/-. Hence, the amount of Rs. 15 lakhs is reduced to Rs.2,50,000/- ( Rupees Two lakh fifty thousand). Hence, in view of the above, both these appeals are allowed partially and exemplary cost imposed on appellant i.e. Rs.15 lakhs is reduced to Rs. 2,50,000/-. Rest of the order of the Forum below needs no interference.
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