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M/s. Omaxe Limited, SCO vs. Amit Mishra dated 2012-09-03


(Against the order dated 08.05.2012 in First Appeal No.348 of 2011 of the State Commission, UT Chandigarh)
IA No.1 of 2012
M/s. Omaxe Limited, SCO
NO. 143-144, Sector  8-C,
Chandigarh through its
Senior General Manager,
Sales and Marketing,
Through its authorized
Representative namely
Sh. Harsh Bhargav                                                                                                                                            ……….Petitioner
Amit Mishra
S/o Chandrakant Mishra
Resident of H.NO.  1416,
Sector 19-B, Chandigarh                                                                                                                                   .........Respondent
                              PRESIDING MEMBER
For the Petitioner         :   Mr. Munish Gupta, Advocate
                                         Mr. Rajat Bhardwaj, Advocate
PRONOUNCED ON:  03.09.2012. 
The Complainant Mr. Amit Mishra had booked a residential flat in the Omaxe Park Woods project of the revision petitioner M/s. Omaxe Ltd.  An agreement in this behalf was executed between the two parties on 28.11.2006. Clause 28 (a) of this agreement enjoined—
“That the Company shall endeavor to complete the development/construction of the Flat within 18 months from the date of signing this Agreement by the Buyer (s) or within an extended period of six months, subject to force majeure conditions [as mentioned in Clause (b) hereunder] and subject to other Flat Buyer (s) making timely payment or subject to any other reasons beyond the control of the Company. No claim by way of damages/ compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Flat to the Buyer(s).”
2.      The builder/revision petitioner failed to deliver the flat within the stipulated period and therefore the Complainant sought refund of the amount paid by him. The entire deposit of Rs.12.9 lakhs was refunded to him by the revision petitioner, through two cheques of 8.12.2010.  However, this payment was made without any interest on this amount.  Therefore, a consumer complaint was filed before the District Forum Chandigarh on 3.1.2011 stating that:-
        “That although the opposite party has reimbursed the principal amount of the said flat but has not paid processing fee charges as has been charged by the bank for processing of the housing loan and has not paid any interest on the total paid consideration amount of the plot whereas the complainant is fully entitled for the interest @ 24% P.A. Accordingly, the complainant again represented and requested the opposite party to pay the interest by making representation dated 14.12.2010 but no action on the same has been taken till the date.  Hence this complaint.”
3.      Thus, the entire consumer dispute has revolved around the issue of interest payable by the builder to the Complainant.  While the complainant has claimed interest at 24%, the case of the respondent before the District Forum was that—
  “That question of payment of processing fee and entitlement of the complainant for interest does not arise as the complainant himself had sought cancellation of booked flat and had sought refund of the amount.  The complainant once has received the entire payment in full and final settlement is not entitled to raise hue and cry in approaching this Hon’ble forum.”
 4.     The District Forum in its order of 14.11.2011 relied upon the stipulation in clause 28 (a) of the agreement between the parties, which gave the builder a total of 24 months, (including the extended period), without further extension of time. The District Forum also took note of the condition in clause 21, which required the allottees to pay interest at 24% for delay in payment of instalments beyond one month.  Accordingly, the District Forum ordered that:-
“In view of the above findings, this complaint is allowed with the following direction to the OP:-
(i)           to pay interest @ 12% per annum to the complainant on Rs.12,90,000/- from 26.8.2010 till the date of its refund i.e. 8.12.2010.
(ii)          to pay a sum of Rs.20,000/- to the complainant for harassment and mental agony.
(iii)        to pay a sum of Rs.7,000/- to the complainant as costs of litigation.”
5.      The Complainant appealed against the above order of the District Forum,  before the State Consumer Disputes Redressal Commission, UT of Chandigarh.  The appellant/Complainant prayed for payment of interest from the date of deposit of the amount with the respondent/OP.  While considering this appeal filed by the Complainant, the State Commission has noted that the agreement between the parties also contained clause 28 (f), which allows payment of interest only at 6% p.a., in a situation where the company is forced to abandon the project, or delay it abnormally, for reasons beyond its control.  However, award of interest by the District Forum at 12% p.a. has not been challenged. The State Commission therefore observed that the rate of interest awarded cannot be reduced in the appeal filed by the complaint.  As per the agreement between the parties, the possession of the flat was required to be delivered by the Complainant within 24 months from the date of the agreement i.e. 28.11.2006.  Therefore, the State Commission has taken the view that the Complainant was entitled to interest at 12% p.a. on the deposited amount for the period 27.11.2008 (24 months from the date of the agreement) to 8.12.2010 (the date of actual refund of the deposit). The complete award of the State Commission in favour of the complainant comprises the following—
“(i)     the respondent/Opposite Party is directed to pay interest @ 12% p.a. to the complainant, on the amount of Rs.12,90,000/- from 27.11.2008 till the date of its refund i.e. 8.12.2010.
(ii)      The amount mentioned in direction No.1, shall be paid within 30 days from the date of receipt of a certified copy of the order, failing which the respondent/Opposite Party shall pay the same with interest @ 18% p.a. from 27.11.2008, till realization.
(iii)     The respondent/Opposite Party, is also directed to pay costs of litigation, to the tune of Rs.10,000/- besides the costs, already awarded by the District Forum.
(iv)   The other reliefs granted, and directions given, by the District Forum shall remain intact.”
6.      We have heard the counsel for the revision petitioner and carefully perused the records.  Learned counsel drew our attention to the contents of clause 28 (f) mentioned in the impugned order, but also conceded that no evidence was led before fora below to show that the delay and non-delivery was due to grounds permissible under that clause.  Learned counsel further referred to an averment in the written response of the revision petitioner/OP before the District Forum, wherein it was contended that “it is wrong to state that possession at the relevant time could not be offered.”   However, learned counsel also conceded that no evidence was led before the fora below, which could show that physical possession of the competed flat was at any stage offered to the Complainant within the contemplated period of 24 months.  
7.      In view of the details above, we are of the considered view that the decision of the State Commission, UT Chandigarh in Appeal No.348 of 2011 is based on correct appreciation of the evidence on record.  There are no grounds to interfere with the same.  The revision petition is held to be devoid of any merit and is dismissed as such.  The parties to bear their own costs.
(J. M. MALIK, J.)

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