CONSUMER COMPLAINT BEFORE THE DISTRICT CONSUMER

DISPUTE REDRESSAL COMMISSION VII (SOUTH DISTRICT),

GOVT. OF NCT OF DELHI.

CONSUMER COMPLAINT NO. - - - - OF 2021

IN THE MATTER OF:

Ms. Priyamvada Cbaudbary,

Rio 354, Rama Apartment,
Plot No. 2, Sector- I I,
Dwarka, 110075 ... COMPLAINANT

V.

Mis OMAXE Ltd.

OPPOSITE PARTY I HOUSE, 7, LSC, KALKAJI,

New Delhi-1 I0019 (INDIA) ...OPPOSITE PARTY 1

Mr. Robtas Goel

Chairman and Managing Director

OPPOSITE PARTY 1 House, 7, LSC, Kalkaji,

New Delhi - 110019 (India) .... OPPOSITE PARTY 2

CONSUMER COMPLAINT ON THE BEHALF OF THE

COMPLAINANT UNDER SECTION 34 AND 36 OF THE CONSUMER
PROTECTION ACT, 2019.
TO,
THE HON'BLE PRESIDENT AND ms COMPANION MEMBERS OF THE
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT
SOUTH DISTRICT, NEW DELID.

THE HUMBLE PETITION ON BEHALF OF THE COMPLAINANT ABOVE

NAMED

MOST RESPECTFULLY SHOWETH: -

1. That the complainant 1s a citizen of India and resides at the above-

mentioned address.

2. That the complainant is a "consumer" under Section- 2(d)(ii) on account of

the services availed by her from OMAXE Ltd (Hereinafter referred to as

Opposite Party 1). after payment of the consideration.

3. That the Complainant is a housewife who has used her personal savings to

purchase a commercial space admeasuring 532.52 square feet (Unit) being

part of anchor Store/ Hyper Mart (Larger Area) bearing No. 82 on the first

floor in the Commercial Complex named as "Omaxe Connaught Place"

situated at Beta-IT, Greater Noida, District Gautam Budh Nagar (U.P) from

OPPOSITE PARTY 1.

4. That the Complainant approached the Opposite Party 1. after believing in

OPPOSITE PARTY l 's representations made via advertisements in

newspapers that units in their project were available for sale on an assured

return basis
 that they would lease out the unit to
5. That OPPOSITE PARTY 1 also assured
is, Super 99, INOX, etc.
different entities like Reliance Digital, Lev
already agreed to open their
According to Opposite Party 1 such entities had
in Omaxe Connaught Place.
respective stores, retail shops, showrooms etc.
plainant that the rental amount
6. That OPPOSITE PARTY 1 assured the Com
ld not be less than the amount
of the unit purchased by the Complainant wou
rn. The assured return period
of the last monthly payment of assured retu
the form of monthly rental of
was from 2011-2022. An Assured Return in
PARTY 1 in the agreement
Rs.41,537/- was promised by OPPOSITE

throughout the aforesaid return period.

representations, promises and/or
7. That the Complainant based upon the rosy
a space admeasuring 532.52
assurances made by Opposite Party I, booked
e/Hyper Mart (Larger Area)
square feet (Unit) being part of anchor Stor
mercial Complex named as
bearing No. 82 on the first floor in the Com
-TI, Greater Noida, District
"Omaxe Connaught Place" situated at Beta

Gautam Budh Nagar (U.P).

nt letter from OPPOSITE PARTY
8. That the Complainant received an allotme
.,/

cos t of Rs. 18,84,104/- and 60

I on 05.02.2011 for the Unit having a total
usand One Hundred Four &
paise (Rupees Eighteen Lac Eighty-Four Tho

Paise Sixty Only).

 A Copy of allotment letter dated 05 .02.2011 issued by the OPPOSITE

PARTY 1 in favor of the Complainant is filed herewith and marked as

ANNEXURE 1.

9. That the Complainant has followed all the terms and conditions mentioned

in the Allotment Letter dated 05.02.2011 and paid the entire amount as per

the terms of the allotment letter.

A Copy of payment done by the Complainant is annexed herewith and

marked as ANNEXURE 2.

10. That OPPOSITE PARTY 1 issued an addendum to the Allotment letter

dated 05.02.2011 wherein some additional terms and conditions were

mentioned. It is pertinent to note that in para 1 (b) of the letter dated

16.02.2011 clearly stated that: -

"(b) In consideration of the Allottee(s) granting the lease of the

Unit in favour of the Company in terms of the Lease Agreement,
the Company shall pay lease rent to the A/lottee(s) which shall not
be less titan the Commitment Charges, in the manner and for the
tenure as provided in terms of the Lease Agreement (hereinafter
referred to as the "Monthly Rental''). "

[Emphasis supplied]

A Copy of addendum letter dated 16.02.2011 issued by OPPOSITE PARTY

I is filed herewith and marked as ANNEXURE 3.

11. That it is pertinent to mention that the addition of the abovementioned

clause was in nature of mandatory conditions for acquiring the allotment

 letter and therefore forms the part of the original contract for buying the said

unit.

12. That the Complainant was not given an option to take possession of the said

unit for herself and was forced to execute a lease agreement as a

precondition for acquiring the ownership of said unit

13. That despite the reluctance of the Complainant a lease agreement was

executed between the Complainant and OPPOSITE PARTY 1 on

16.02.2011 wherein based on assurances given by OPPOSITE PARTY 1,

the Complainant agreed to lease out the aforesaid unit to OPPOSITE

PARTY 1 for the period of 11 years from the effective date i.e. 16.02.2011.

It was further agreed that the period commencing from 16.02.2011 until

11.02.2018 shall be referred to as the Assured Rental Period.

A Copy of Agreement dated 16.02.2011 executed between the parties is

annexed herewith and marked as ANNEXURE 4.

14. That the OPPOSITE PARTY 1 paid assured returns/monthly rental only till

February 2018. Thereafter OPPOSITE PARTY 1 started defaulting in

payment, thereby violating the clause of 1(b) of the Lease Agreement dated

16.02.2011. After a hectic persuasion by the Complainant, OPPOSITE

PARTY 1 made some part payments that the Complainant has received

without prejudice to the agreed rent.

15. That the OPPOSITE PARTY I paid the assured amount till the period of

assured return i.e. 11 .02.2018 and thereafter has not paid any amount
 towards monthly rent despite having possession of the said unit. Therefore,

it is evident from the conduct of OPPOSITE PARTY 1 that from the very

beginning they had an intention to cheat and defraud the Complainant.

A Copy of the Account Statement of Bank of the last payment done by the

OPPOSITE PARTY 1 to Complainant is annexed herewith and marked as

ANNEXURES.

16. That the Complainant was lured by OPPOSITE PARTY 1 to purchase the

unit by making false and fraudulent representations that OPPOSITE

PARTY 1 shall pay a monthly rental of not less than monthly assured return

amount for the entire period of lease agreement i.e. from 2011 to 2022.

17. That upon numerous reminders, persuasion and phone calls made by the

Complainant, OPPOSITE PARTY 1 made some part payments in the

following manner: -

I. Rs. 54,688/- paid on 09.10.2018.

II. Rs. 7189/- paid on15.11.2018.

III.Rs. 7189 /- paid on 10.12.2018.

IV. Rs. 7,189/- paid on 10.01.2019.

= Rs. 76,255/- (Seventy Six Thousand Two Hundred Fifty-Five

Only) Total amount.

18. That OPPOSITE PARTY 1 & 2 are liable to pay Rs. 13,77,540/- (Rupees

Thirteen Lakhs Seventy Seven Thousand Five Hundred Forty) from

 OSITE PARTY 1
February 2018 to January 2021 , during which the OPP
nty-Six Thousand
has paid a meagre amount of Rs. 76,255/- (Rupees Seve
ified before.
Two Hundred, Fifty-Five Only) in bits and pieces as spec
TY I has defaulted in
19. That as per the Lease Agreement OPPOSITE PAR
liable to pay the rent
making the payment in lieu of monthly rent and are
s Seventy Seven
amount of Rs. 13,77,540/- (Rupees Thirteen Lakh
6,255) from February
Thousand Five Hundred Forty) (Rs. 14,53,795 - Rs.7

2018 till now.

legal notices to Opposite
20. That the Complainant has previously served two
has not received any
Party 1 and 2 dated 20.07.2019 and 11.02.2020 but

response whatsoever.
osite Party 1 and 2
A copy of Legal Notice dated 20.07.2019 sent to the Opp

is annexed herewith and marked as ANNEXURE 6.

osite Party I and 2
A copy of Legal Notice dated 21.10.2019 sent to the Opp

is annexed herewith and marked as ANNEXURE 7.

plainant as a mandatory
21. That the Lease Agreement was imposed on the Com
ing a part of the
condition by the OPPOSITE PARTY 1 thereby fonn
and by violating the
original contract to avail unit from OPPOSITE PARTY
TY 1 has violated
lease agreement dated 16.02.2012, the OPPOSITE PAR

the original contract of sale of the said unit.

1986 defines 'deficiency
22. That Section- 2(g) of the Consumer Disputes Act,

in service' as:
 "deficiency" means any fault, imperfection, shortcoming or inadequacy in

the quality, nature and manner of performance which is required to be

maintained by or under any law for the time being in force or has been

undertaken to be performed by a person in pursuance of a contract or

otherwise in relation to any service;

23. That under the abovementioned definition the failure of OPPOSITE PARTY

I to fulfil their end of contractual obligations of paying monthly rent

amounts to deficiency of service.

24. That even after repeated requests and legal notices the OPPOSITE PARTY

I refused to provide the following information: -

I. Name and address of the present tenant.

II. A copy of the Agreement with the present tenant.

III.Information of the present tenant with regards to his tenancy

agreement with other Owners.

IV. List of other unit owners in the project OCN Greater NOIDA along

with their full contact details.

25. That the Complainant has not merely faced financial loss but also great

mental harassment and agony. Therefore, the Complainant has been left

with no choice but to seek justice from this Hon 'ble Commission.

26. That the OPPOSITE PARTY I is liable to provide compensation to the

complainant not only for the expenses incurred on account of sale of

 damaged and used product but also for the gross injustice and harassment

that she underwent for no fault of her.

27. In R.D. Hattangadi v. Pest Control (India) Private Limited and Ors. 2

[(1995) (1) SCC 551) speaking about the heads of compensation, the

Hon'ble Supreme Court has held that while fixing an amount of

compensation payable to a victim, the damages have to be assessed

separately as pecuniary damages and special damages. Pecuniary damages

are those which the victim has actually incurred and which is capable of

being calculated in terms of money; whereas non-pecuniary damages are

those which are incapable of being assessed by arithmetical calculate ions

like inconvenience, hardship, discomfort, disappointment, frustration and

mental stress in life.

28. That the Hon'ble Supreme Court in the case of Ghaziabad Development

Authority v. Balbir Singh, (2004) 5 sec 65 has held that:

"The word 'compensation' is again of very wide connotation. It has

not been defined in the Act. According to dictionary it means,

'compensating or being compensated; thing given as recompense.

In legal sense it may constitute actual loss or expected loss and

may extend to physical, mental or even emotional suffering, insult

or injury or loss. Therefore, when the Commission has been vested

with the jurisdiction to award value of goods or service and

compensation it has to be construed widely enabling the

 Commission to determine compensation for any loss or damage

suffered by a consumer which in law is otherwise included in wide

meaning of compensation. The provision in our opinion enables a

consumer to claim and empowers the Commission to redress any

injustice done to him. The Commission or the Forum in the Act is

thus entitled to award not only value of the goods or services but

also compensate a consumer for injustice suffered by him."

29. That the Complainant is well within the territorial and pecuniary jurisdiction

of the Hon 'ble District Consumer Dispute Redressal Commission (South

District), Govt. OfNCT of Delhi.

30. From the above, it is evident that this Hon'ble Consumer Commission is

well within its jurisdiction to award compensation not only for the monetary

loss or injury suffered by the complainant but also for injustice suffered by

the consumer. In the case in hand, going by the entirety of the facts and

circumstances, it is well within the jurisdiction of this court to compensate

the complainant not only the amount for services but also for the gross

injustice that he had to face at the hands of a Opposite Parties who mentally

harassed an innocent customer so as to ensure that this treatment is never

repeated by the company and puts a deterrent effect on this vicious practice

followed against innocent customer, having significant bearing on the

consumer's rights.
 31.The Hon'ble Supreme Court in its recent decision in National Insurance

Co. Ltd. v. Hindustan Safety Glass Works Ltd. (2017) 5 SCC 776,

wherein, it has been observed as follows:

" ..... . in a dispute concerning a consumer, it is necessary for the Courts

to take a pragmatic view of the rights of the consumer principally since it

is the consumer who is placed at a disadvantage vis-a-vis the supplier of

services or goods. It is to overcome this disadvantage that a beneficent

legislation in the form of the Consumer Protection Act, 1986 was enacted

by Parliament."

32. That the aforesaid amounts to deficiency in services and unfair trade

practice and the Complainant is entitled to rent owed amounting to

Rs.13,77,540/- (Rupees Thirteen Lakhs Seventy-Seven Thousand Five

Hundred Forty) from February 2018 to January 2021, at an interest rate of

18%. The Complainant is also entitled to cost of litigation. The Complainant

is also entitled to a compensation of Rs. 5,00,000/- against the aforesaid

deficiency of services by the Opposite parties as the Complainant has been

made to suffer due to the above said acts of the opposite party.

33.lt is respectfuIIy submitted that as a result, the Complainant is suffering

monetarily as weII as non-pecuniary losses in tenns of inconvenience by no

response of communication and legal notice, mental agony, trauma,

humiliation and harassment over and above litigation costs due to deliberate

acts of the opposite party.

34. That the present complaint is being filed within the period
of limitation.

This Hon' ble District Consumer Dispute Redressal Comm

ission (South

District), Govt. Of NCT of Delhi has got the pecuniary jurisd

iction as well
as territorial jurisdiction as envisaged in the Consumer Protection
Act, 2019
to entertain the complaint hear and decide the same.

35.Th e Complainant has not filed any other Complaint again

st the Opposite
Parties in any other Commission/court of law for the same relief
s as have
been prayed hereunder.

36.That finding no other alternative for remedy against the neglig

ence, unfair
trade practice and deficiency in service rendered by the Oppo
site Parties,
the Complainant is constrained to file the present Complaint with
respect to
which as of now, they are legitimately entitled for a direct
ion to the
Opposite Parties to pay the consideration amount as per agree
ment along
with compensation by way of interest @ 18% per annum
from the
respective dates of payments.

37.Th at the Complainant in the interest of justice further crave

s liberty to

amend the present Complaint, if the circumstances so arise and

in case the
relief for which the Complainant is entitled is found to be more.

PRAYER
In the premises, it is most respectfully prayed that this Hon'ble Commission

may graciously be pleased to: -

(i) Allow the present Complaint; and

(ii) Pass an order directing the Opposite Parties to give possession of the

space admeasuring 532.52 square feet (Unit) being part of anchor

Store/HyperMart (Larger Area) bearing No. 82 on the first floor in

the Complex named as "Omaxe Connaught Place" situated at Beta-II,

Greater Noida, District Gautam Budh Nagar (U.P).

(iii) Pass an order directing the Opposite Parties to provide following

details to the Complainant: -

a. Name and address of the present tenant.

b. A copy of the Agreement with the present tenant.

c. Information of the present tenant with regards to his tenancy

agreement with other Owners.

d. List of other unit owners in the project OCN Greater NOIDA along

with their full contact details.

e. Pass an order directing the Opposite Parties to give the rental amount

of Rs. 13,77,540/- (Rupees Thirteen Lakhs Seventy-Seven Thousand

Five Hundred Forty) (Rs. 14,53,795 - Rs.76,255) from February

2018 till January 2021 along with interest 18% p.a. on the paid

amount from the respective date of payment until realization; and

f. Pass an order directing the OPPOSITE PARTY 1 to pay a sum of Rs.

5,00,000/- (Rupees Five Lakhs Only) to Complainant towards

damages for the physical and mental torture and undue hardship

caused to the Complainant as a result of such unfair trade practice

and deficiencies in service committed by the OPPOSITE PARTY 1

under Section 34 of the Consumer Protection Act, 2019 along with

interest @ 18 % per annum from the date of filing of the Complaint

till the date of realization; and

g. Pass an order directing the Opposite Party to pay to the complainants

a sum of Rs. 5,00,000/- (Rupees Five Lakhs only) as compensation

for loss of opportunity and time; and

h. Pass an order directing the Opposite Party to pay to the complainants

a sum of Rs. 1,00,000/- (Rupees One Lakh only) as litigation

expenses; and

1. Pass such other and further order or orders as this Hon'ble

Commission may deem fit and proper in the facts and circumstances

of the case.

COMPLAINANT

Through