RAMESH KUMAR v. M/S OMAXE CHANDIGARH EXTENSION DEVELOPERS PRIVATE LIMITED

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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ramesh Kumar S/o Sh.Basti Ram R/o Village Shildoo, P/o Panesh, Shimla, Himachal Pradesh-171011

….Complainant

Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901, through its CEO-cum Director Sh. Bhupendra Singh, and Directors Sh. Krishan Kumar Agarwal and Shalini Barathi.

2. Bhupendra Singh, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali. Punjab-140901.

3. Kamal Kishore Gupta, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

4. Shalini Barathi, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

…..Opposite parties

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Ravinder Avasthi S/o Late Sh.Roshan Lal Avasthi R/o Roshan Nivas, Dhingu Mandir Road, Sanjauli, Shimla, Himachal Pradesh-171006. ….Complainant

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Versus

1. M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901, through its CEO-cum Director Sh. Bhupendra Singh, and Directors Sh. Krishan Kumar Agarwal and Shalini Barathi.

2. Bhupendra Singh, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali. Punjab-140901.

3. Kamal Kishore Gupta, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

4. Shalini Barathi, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

…..Opposite parties

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BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MR.RAJESH K. ARYA, MEMBER

Present:- Sh.Savinder Singh Gill, Advocate for the complainants. Sh.Tejeshwar Singh, Advocate for the opposite parties.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

The aforesaid complaints have been filed by the respective complainants, seeking possession of their units purchased by them alongwith compensation for the period of delay etc., as they are aggrieved of delay and laches; deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties. It has been alleged by the complainants in both the complaints that despite the fact that they have made payment of substantial sale consideration, as referred to in the chart below, yet, the opposite parties have not offered possession of the units for want of development and construction at the project site. Details

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with regard to the project in dispute; units purchased by the complainants; payments made by them etc. of these complaints are given below:-

It has been stated that even the terms and conditions contained in the

allotment letter/agreement are one-sided, highly favourable to the opposite

parties. Every efforts made by the complainants in the matter, for delivery

of possession of their respective units, did not yield any result. Hence these

complaints.

2. The opposite parties in their joint written replies, while admitting the factual matrix of the case with regard to sale of the units in question to the respective complainants; payments made by them as mentioned in the complaints; execution of allotment letters/agreements etc. took various objections/pleas as under:-

i. the complainants being investors did not fall within the definition of consumer;

ii. that this Commission is not vested with pecuniary and territorial jurisdiction to entertain and decide these complaints;

iii. that the period of 42 months of delivery of possession as mentioned in the respective allotment letter/agreement is excluding of Saturdays, Sundays and Govt. Holidays;

iv. that as per clause 41(a) of the allotment letter/agreement, it was clearly agreed to between the parties that the period of

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delivery of possession of the units was subject to force majeure circumstances;

v. that as per clause 41 (a) it was also clearly brought to the notice of the complainants that OP No.1 shall only try to complete the development/construction work within a period of 42 months as such time was not the essence of contract;

vi. that delay in offering possession of the units took place because of the force majeure circumstances having been faced by the opposite parties due to COVID-19, as a result whereof the Government of India issued various advisories, giving relief to the builders by extending the dates for completion of the projects;

vii. that the present complaints can be decided under the provisions of specific relief Act and the Indian Contract Act and not before this Commission;

viii. that because the complainants are defaulter in making payment, which fact has been concealed by them, as such, they are not entitled to any relief;

ix. that even otherwise, payment of compensation, if any, for delay in offering possession is to the extent of Rs.5/- per sq. feet, of built-up are of the unit, as per clause 41 (g) of the allotment letter/agreement, which shall be adjustable at the time of execution of conveyance deeds;

x. that the parties are bound by terms and conditions of the allotment letter/agreement and the Courts have no power to amend the same;

xi. that these complaints are barred by limitation;

xii. that in the face of existence of arbitration clause in the allotment letter/agreement, this Commission is having no jurisdiction to decide these complaints and only an arbitrator can adjudicate the same;

xiii. that these complaints are bad for mis-joinder of opposite parties no.2 to 4 as parties to these complaints.

3. While denying the rest of the averments made in the complaints, the opposite parties prayed for dismissal of these complaints with costs

4. In the rejoinder filed, the complainants reiterated all the averments contained in their respective complaints and controverted those contained in written replies of the opposite parties.

5. The parties led evidence, in support of their cases and also filed written arguments.

6. We have heard the Counsel for the parties and have gone through the evidence and record of these cases, including the written arguments, very carefully.

7. First, we will deal with the objection taken by the opposite parties to the effect that the complainants, in both the cases, did not fall

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within the definition of 'consumer', it may be stated here that the opposite parties have failed to place on record any cogent and convincing documentary evidence in this regard, whereas, the onus was upon them to establish that the respective units have been purchased by the complainants to indulge in 'purchase and sale of units' i.e. for earning profits, as was also held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, especially, when still the complainants are seeking possession of their respective units, hence we hold that the complainants are consumers as defined under the Act, 2019. As such, objection taken in this regard stands rejected.

8. As far as objection taken with regard to Arbitration is concerned, it may be stated here that this Commission has reiterated so many times that this issue has already been set at rest by the larger Bench of the Hon'ble National Commission in Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon'ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.

9. Now we will like to deal with the objection taken by the opposite parties with regard to territorial jurisdiction. It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) provides as under:-

"…..47. (4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or

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(c) the cause of action, wholly or in part, arises; or

(d) the complainant resides or personally works for gain…."

Bare perusal of the above said provisions of sub-sections (a) and (b) of Section 47 (4) of the CPA 2019 abundantly make it very clear that a complaint may be filed at a place, where the opposite party(s) actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Sub-section (c) of Section 47 (4) of the said Act, further clarifies that the State Commission within whose jurisdiction a part of cause of action, wholly or in part arises, shall have the territorial jurisdiction to entertain and decide the consumer complaint. Furthermore, it is settled law that even an infinitesimal fraction of a cause of action will be a part of the cause of action and confer jurisdiction on the Court/ Tribunal/Fora within the territorial limits of which that occurs. Cause of action, wholly or in part, may be accrued at the following places:-.

(i) the place where the contract was made;

(ii) the place where the contract was to be performed or performance thereof completed;

(iii) the place wherein performance of the contract any money to which the suit relates was expressly or implied payable.

(iv) the cause of action, wholly or in part, arises; It is significant to mention here that though it has been contended by the opposite parties that they have no office in Chandigarh, yet, they have failed to clarify, as to how they have issued the payments receipts dated 15.05.2017 and 30.06.2017 Annexure C-2 colly. ( in CC No.9 of 2023) and 15.05.2017 and 30.06.2017 Annexure C-2 colly. ( in CC No.10 of 2023) from their Zonal Office at SCO no.139-140, Sector 8-C, Chandgiarh- 160008. On these payment receipts, even the round stamp of Chandigarh Office of the opposite parties has been affixed. Not only as above, even by way of Clause 62 of the respective allotment letter/agreement, Annexure C- 1 also, the parties have also consented for vesting jurisdiction of the one of the Courts at Chandigarh in case of any dispute, as such, now at this stage, the opposite parties cannot wriggle out of the same. It is therefore held that this Commission at Chandigarh has territorial jurisdiction to entertain these complaints because a part of cause of action accrued in favour of the complainants at Chandigarh, as explained above.

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10. Now we will deal with the objection taken by the opposite parties with regard to pecuniary jurisdiction. It may be stated here that in exercise of powers conferred by provisos to sub-section (1) of Section 34, sub-clause (i) of clause (a) of sub-section (1) of section 47 and sub-clause (i) of clause (a) of sub-section (1) of section 58 read with sub-clauses (o), (x) and (zc) of sub-section (2) of section 101 of the Consumer Protection Act, 2019, the Central Government has notified the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, to the effect that the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services paid as consideration exceeds fifty lacs but does not exceed rupees two crore. In the present cases, it is clearly coming out from the record and has also not been disputed by the opposite parties that the complainants have paid Rs. 8529141.00 for the period from 15.05.2017 to 01.07.2017 in CC No. 09 of 2023 and Rs.8529141.00 for the period from 16.05.2017 to 13.08.2017 in CC No. 10 of 2023 towards their respective units which fell above Rs.50 lacs and below Rs.2 crore, respectively. In this view of the matter, this Commission has got pecuniary Jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.

11. It is not in dispute that an amount of Rs. 8529141.00 for the period from 15.05.2017 to 01.07.2017 in CC No. 09 of 2023 and Rs.8529141.00 for the period from 16.05.2017 to 13.08.2017 in CC No. 10 of 2023 stood paid by the complainants to the opposite parties towards purchase of the respective unit in question, possession whereof was to be delivered within total period of 42 months from the date of execution of allotment letters i.e. by 09.01.2021 in each case, (42 months i.e. 36 months plus 6 months grace period from the date of execution of allotment letter/agreement, as per clause 41 (a) thereof i.e. dates of execution of allotment letters being 10.07.2017). It is also an undisputed fact that possession of the units in question has been not offered by 09.01.2021 or even thereafter and till date the complainants are empty handed. To wriggle out of the situation, the opposite parties have taken shelter under the force majeure circumstances as under:-

i. that due to COVID-19 lockdown was announced on 15.03.2020 in the country;

ii. that the Government of India issued various advisories, giving relief to the builders by extending the dates for completion of the ongoing projects; and

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iii. that the competent authorities have extended the period for completion of the project in question.

12. Under above circumstances, the moot question which falls for consideration is, as to whether, the opposite parties can claim any immunity for delay in offering possession of the units in question, on the grounds mentioned above. It may be stated here that admittedly lockdown in the country was announced on 25.03.2020, which was lifted in April 2020. At the same time, we also cannot ignore the fact that the Government of India, Ministry of Housing and Urban Affairs, Housing Section, vide office memorandum dated 13.05.2020 (Annexure OP/4) had extended the registration and completion date or revised complete date or extended completion dates by 6 months due to outbreak of COVID-19, which was extendable upto further 3 months i.e. total 9 months. Thus, in our considered opinion, the opposite parties are entitled to get immunity of these 9 months from the actual date of offering possession of the respective units to the complainants i.e. possession should have been delivered to the complainants latest by 09.10.2021 (09 months from 09.01.2021). However, it is coming out from the record that even by the said date (09.10.2021) also, possession of the respective units has not been offered to the complainants and there has been delay in the matter, which is continuing, because even the date when arguments were heard in these cases, it was not offered. Thus, in our considered opinion, by not offering and delivering possession of the units in question by the promised date or even with the extended period of 9 months due to COVID-19, referred to above, the opposite parties are deficient in providing service and guilty of adoption of unfair trade practice.

13. It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon'ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present cases, not an iota of evidence has been placed on record, as to at what stage, the development and construction stage has reached. In case, the development/construction activities at the project is about to complete, even by this year-2023, 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

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best persons, to testify, as to whether, all these development/construction activities, are being undertaken but they failed to do so. Under these circumstances, the opposite parties have attracted an adverse inference in the matter to hold that they are not serious in completing the project and on the other hand are utilizing the amount paid by the complainants and other similar located allottees, without providing them anything. Thus, in our considered view, the complainants are entitled to get possession of their respective units, alongwith delayed compensation for the period of delay in delivery of possession.

14. Now, we will like to decide as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession of their respective units. On account of delay in actual delivery of possessions of the units to the complainants, they have been caused mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M.K Gupta . (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. Though, counsel for the opposite parties contended with vehemence that if at all eligible for delayed compensation, the complainants are entitled to get meager compensation @Rs.5/- per square feet of the builtup area of the respective units as mentioned in the allotment letters and the same being a binding contract between the complainants cannot be modified by this Commission. It may be stated here that this Commission is not bound to rely on a harsh, oppressive and unconscionable clause contained in the allotment letter/agreement because it is well settled law that a court can strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power. The consideration or object of an agreement is unlawful inter-alia if it is of such a nature that, if permitted, it would defeat the provisions of any law or if the court regards it as immoral or opposed to public policy. If the object of some terms and conditions of agreement is unlawful, the same are deemed to be void. Our this view is supported by the judgment passed by the Hon'ble Supreme court in the case of Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Ors. (1986) 3 SCC 156 wherein it has been clearly held that the courts can strike down the terms of a contract. The Hon'ble Court has held that

"......this principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable

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contract, or an unfair and unreasonable clause in a contract, entered into between the parties who are not equal in bargaining power...."

The draft legislation provided by the Law Commission of India in its 199th Report which addresses the issue of 'Unfair (Procedural & Substantive) Terms in Contract' has stated that "A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties."

The above view has been reiterated by the Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. vs. Gouvindan Raghavan Civil Appeal No.12238/2018 wherein in paragraph nos. 3.8, 6.3, 6.6 & 6.7, it has been clearly held that if the terms of contract are harsh, oppressive and unconscionable to one of the parties, such a contract cannot be relied upon and Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. In this view of the matter, contention raised by the opposite parties that the complainants, if at all eligible for delayed compensation, are entitled to get meager compensation @Rs.5/- per square feet of the builtup area of the respective units is rejected. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint

Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

"……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today. The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case. Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.….."

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. &

3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In

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the present cases, the complainants have purchased the respective units as far as back in 2017 and have made substantial payments of Rs. 8529141.00 for the period from 15.05.2017 to 01.07.2017 in CC No. 09 of 2023 and Rs.8529141.00 for the period from 16.05.2017 to 13.08.2017 in CC No. 10 of 2023 and are still empty handed and have to approach this Commission for redressal of their grievance by way of filing these complaints. Under above circumstances, in our considered opinion, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession of their respective units, as held above, till delivery of possession thereof, that will meet the ends of justice.

15. At the time of arguments, it was also argued by counsel for the opposite parties that, as per terms and conditions of the Allotment Letter/Agreement, when computing the period of delivery of possession of the unit, Sundays, Saturdays, Bank Holidays, etc. are to be ignored. It is significant to mention here that similar issue has been dealt with by this Commission in a case titled as Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.178 of 2016, decided on 16.08.2016 and many other cases, thereafter and it was specifically held that when there is no convicting explanation of getting extension of 6 months' period to deliver possession beyond the stipulated date or even after the extended period, referred to above, the benefit of exclusion of Saturdays, Sundays, Bank Holidays etc. cannot be given. However, even otherwise, in the present case, the opposite parties are being granted benefit of 6 months of grace period and also the immunity of 9 months, referred to above. In view of above, the plea of the opposite parties in this regard stands rejected.

16. It is necessary to add here that the opposite parties also cannot wriggle out of their liability, by saying that delay took place on account of the reason that the complainants defaulted in making remaining payment and that they are not entitled to any relief being defaulters; in view of principle of law laid down by the Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon'ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development

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work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. In the instant cases also, if the complainants after making payment of substantial amounts, referred to above, within a short span of about three months, as far as back in 2017 i.e. Rs. 8529141.00 for the period from 15.05.2017 to 01.07.2017 in CC No. 09 of 2023 and Rs.8529141.00 for the period from 16.05.2017 to 13.08.2017 in CC No. 10 of 2023 and did not make remaining payment when they came to know about huge delay in completing the project, as such, they were right in not making further payments/holding some amount(s). Objection taken in this regard by the opposite parties also stands rejected.

17. As far as objection taken by the opposite parties to the effect that the present complaints can only be decided under the Specific Relief Act/Indian Contract Act only, it may be stated here that this is a simple case of non delivery of possession of the units in question to the respective complainants by the committed date or even after the expiry of extended period, referred to above, and, as such, it can very well be said that there is a denial of service on the part of the opposite parties. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, 1994 AIR 787, 1994 SCC (1) 243, wherein the Hon'ble Supreme Court held that where the developer is at fault in not delivering possession of a property by the committed date, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. Furthermore, this objection of the opposite parties is also bereft of merit, in view of the judgment passed by the Hon'ble National Commission, titled as M/s. Karwa Developers & 3 Ors. Vs. Shree Vinayak Co-Operative Housing Society Ltd. & 3 Ors., First Appeal No. 980 of 2016, decided on 3^rdMarch, 2017, wherein, a similar plea of the builder was negated, while holding as under:-

"We also do not find any substance in the plea taken by the appellant that under clause 14(a) of the development agreement, the complainant was required to file a civil suit under the Specific Relief Act only, because they were asking for monetary relief. The State Commission rightly stated that the relief sought in the complaint were on account of deficiencies committed by the OP Developers, vis-à-vis, the society. Since there is a specific clause in the agreement for giving the possession of the flat within specific time frame and penalty has been provided if the developers failed to develop the same, the society was well within its rights to file consumer complaint against the OP builder."

18. As far as objection taken to the effect that opposite parties no.2 to 4 have been wrongly impleaded in their personal capacity, it may be

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stated here that the complainants have placed on record the List of Signatories/Directors, Annexure C-3 downloaded from the website of Registrar of Companies, which reveals that Sh.Bhupendra Singh, CEO, Kamal Kishore Gupta, Director and Shalini Barathi, Director are actively working in the company/OP No.1. In our considered opinion, the Officers like CEO and Directors are holding such important positions in the Company (a juristic person), where they are directly involved with the decision-making process and will be jointly and severally liable alongwith the Company, for all its acts done. Similar view was taken by the Hon'ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. As such, objection taken in this regard stands rejected. In this view of the matter, miscellaneous applications bearing no.203 and 204 of 2023, filed in both these complaints, for deletion of names of opposites no.2 to 4 are dismissed, having been rendered infructuous.

19. Now coming to the objection raised by the opposite parties to the effect that these complaints are beyond limitation, it may be stated here that since it is an admitted fact that possession of the respective units in question has not been actually delivered to the complainants, even by the date when arguments were heard in these complaints, as discussed above, as such, there is 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., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), 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 taken in this regard, as such, is rejected.

20. For the reasons recorded above, these complaints are partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-

Consumer complaint no.09 of 2023 (Ramesh Kumar Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another) :-

i. To deliver actual physical possession of the unit in question, as per the specifications mentioned in the allotment letter/agreement, to the complainant, complete in all respects, after obtaining occupation and completion

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certificates from the competent Authorities, within a period of 45 days from the date of receipt of a certified copy of this order, on receipt of the remaining amount due from him, without charging any delayed interest thereon.

ii. To pay to the complainant, compensation by way of interest @9% p.a. starting from 09.10.2021 till 31.05.2023, on the amount deposited by him, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.

iii. To pay to the complainant, compensation by way of interest @9% p.a. on the amounts deposited, w.e.f. 01.06.2023, onwards (per month), by the 10^thof the following month till actual delivery of physical possession of the unit, complete in all respects.

iv. To pay to the complainant, compensation to the tune of Rs.1,00,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

Consumer complaint no.10 of 2023 (Ravinder Avasthi Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and another):-

i. To deliver actual physical possession of the unit in question, as per the specifications mentioned in the allotment letter/agreement, to the complainant, complete in all respects, after obtaining occupation and completion certificates from the competent Authorities, within a period of 45 days from the date of receipt of a certified copy of this order, on receipt of the remaining amount due from him, without charging any delayed interest thereon.

ii. To pay to the complainant, compensation by way of interest @9% p.a. starting from 09.10.2021 till 31.05.2023, on the amount deposited by him, within a period of 30 days from the date of receipt of a certified

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copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.

iii. To pay to the complainant, compensation by way of interest @9% p.a. on the amounts deposited, w.e.f. 01.06.2023, onwards (per month), by the 10^thof the following month till actual delivery of physical possession of the unit, complete in all respects.

iv. To pay to the complainant, compensation to the tune of Rs.1,00,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

21. Certified copies of this order be sent to the parties, free of charge and copy thereof be placed in the connected case file.

22. The file be consigned to Record Room, after completion. Pronounced.

10.05.2023

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(RAJESH K. ARYA)

MEMBER

Rg.