OMAXE LIMITED vs Varinder Kaushal

THIS Revision Petition arises out of the order dated 18.5.2012 passed by the Hon''ble State Consumer Disputes Redressal Commission, (hereinafter, ''State Commission'') U.T. Chandigarh in First Appeal No. 23 of 2012 and against the order dated 4.1.2012 passed by the District Consumer Disputes Redressal Forum, (hereinafter, ''District Forum'') U.T. Chandigarh in Consumer Complaint No. 540 of 2011 which allowed the complaint. Brief Facts of the case: That the Complainant booked a flat with the Petitioner/Respondent by an agreement executed on 14.5.2007. Accordingly, the Complainant deposited Rs. 2,60,000 with the Petitioner. The Complainant was allotted a flat bearing No. 110 at Omaxe Parkwood at Baddi, Tehsil Nalagarh, Distt. Solan (Himachal Pradesh) against a total sale consideration of Rs. 13,00,050 as basic sale price and Rs. 1,10,000 on account of additional charges. As per demand raised by OP complainant deposited Rs. 10,30,047 with OP on 3.11.2007. It is case of the Complainant that as per Clause 28(a) of the agreement executed between the parties, the possession of the flat was to be offered within 18 months, with further provision from the date of agreement. The Complainant visited the site in the month of December, 2009 and found that possession of the flat cannot be offered for long period. He requested the OP for refund of the amount along with interest, but all in vain. Hence, alleging that the aforesaid acts of the OP amount to deficiency in service and unfair trade practice Complainant filed a complaint before the District Forum.

PRELIMINAR Y , objection or OP was with regard to territorial jurisdiction. OP denied the allegations that the possession cannot be offered for a long period and contended that the complainant never visited the site. It is also denied that request for refund of any amount was made. The delay in offering possession is compensable, per terms and conditions of Agreement, Exhibit C -1, so OP cannot be held liable for any relief. The District Forum allowed the complaint and passed an order as: "As a result of the above discussion, the complaint is allowed and the OP is directed to pay Rs. 12,90,000 to the Complainant along with interest @ 12% p.a. from the date of deposit till payment OP is also directed to pay Rs. 10,000 as litigation costs. This order be complied with by OP within one month from the date of receipt of its certified copy, failing which, the OP shall be liable to pay the awarded amount along with penal interest @ 15% p.a. besides Rs. 10,000 as litigation costs."

AGGRIEVED by the order of District Forum, the OP preferred an Appeal FA 23/2012.

STATE Commission heard Counsel of both the parties and perused the records on file and dismissed the appeal which lacks merit. Against the order of State Commission this revision.

WE have heard the Counsel of both the parties who argued the matter at length. Regarding territorial jurisdiction that an agreement was executed at New Delhi therefore Chandigarh District Forum has no jurisdiction. But, it is important to consider a document on record Annexure C -4 is a receipt of payment of Rs. 10,30,000 made by complainant at OP''s is duly stamped and acknowledged by Chandigarh Branch Office.. Therefore, as per Section 11(2)(b) and (c) of Consumer Protection Act, 1986, the part of Cause of Action arose at Chandigarh and District Forum, Chandigarh has territorial jurisdiction.

ON perusal of Clause 28(f) of the agreement is being reproduced as Section 28(f) of the Agreement: That if for force majeure reasons or for reasons beyond the control of the company, the whole of part of the project is abandoned or abnormally delayed, no other claim will be preferred except that Buyer (s) money will be refunded on demand along with simple interest @ 6% p.a. from the happening of such eventuality after compliance of certain formalities by the Buyer(s)."

But, we don''t find any merit in the contention of OP regarding the Clause 28(f) of agreement. Both the Fora below held that OP did not produce any evidence to establish that for force majeure reasons or any reasons beyond its control caused a delay in completion.

It is clear that complainant deposited Rs. 12,90,000 with OP and balance was to be paid at the time of possession. But, as per Clause 28(a) of Agreement the OP never delivered possession of flat within stipulated time frame. Therefore, we are of considered view that there is deficiency in service by the OPs. Both the Fora have rightly passed -well -reasoned order which won''t need any interference. Therefore, the revision petition is dismissed with a punitive costs of Rs. 25,000 paid to the respondent/complainant. The entire order should be complied within 2 months otherwise it will carry interest @ 9% per annum till its realization.