Case No.CC/552/2016

Date of Institution:-04.10.2016

Order Reserved on :-01.04.2024

           Date of Order :-08.10.2024

IN THE MATTER OF:

Ms. SurabhiChaturvedi

D/o Col (Retd.) P.K. Chaturedi,

161, DDA Flats, Sector-, Pocket-1,

Dwarka, New Delhi – 110075.

          …..Complainant

VERSUS

Director (Mr. B S Batra)

Imperia Structures Ltd.

A-125, Moha Co-operative Industrial Estate,

Mathura Road, New Delhi – 110044.

… Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The brief facts of the case are thatthe complainant has purchased a virtual office space measuring constructed area 500 sq. ft. in the project of OP namely ‘Imperia H2O’ at Knowledge Park V. Greater Noida. The MOU was signed on 28.01.2013 at the office of OP at Delhi. As per the agreement, the complainant has to pay Rs.1,25,000/- on the date of possession of virtual unit or physical unit whichever is earlier.  The OP has promised to pay fixed payment of Rs.23,750/- every month w.e.f. 18.01.2013 till March, 2014 and further the OP has confirmed to pay assured return of Rs.23,750/- from April, 2014 to April, 2016 irrespective of possession of unit is handed over to the complainant or not.  The OP has assured to handover virtually/legally without any physical allotment.  The complainant has opted for 4^th floor in his application.  The transfer deed/buyer agreement was to be signed either in favour of association to be formed by all purchasers including complainant or individually with complainant.  There was no parking or club membership to be paid by the complainant at the time of handing over the possession of office space.  The complainant has handed over a post datedcheques for each financial years (F.Y. 2012-13, 2013-14) but there was delay in release of monthly assured return during F.Y. 2014-15.   The complainant has stated that assured return w.e.f. 01.05.2016 are not released inspite of the fact that the complainant has paid Rs.2,65,500/- by ECS and Rs.75,000/- by cheque dated 20.06.2016, which are annexed as Annexure D &E. The complainant has paid total consideration of Rs.15,00,000/- to the OP and the OP has not paid the assured return since April, 2016. Moreover, the OP has changed the space from 4^th floor to 10^th floor without consent of the complainant.  The OP has assured the complainant to handover the possession by 2016 but the completion certificate was not obtained by the OP.  The complainant has prayed for grant of relief to the complainant alongwith assured return with interest @ 18% p.a. and unit to be handed over supporting agreement mentioning space on 4^th floor which was booked by the complainant alongwith Rs.5,00,000/-  as compensation for delayed construction and Rs.50,000/- towards punitive compensation for mental agony and costs of the complaint.
2. Notice was served upon OPand OP entered its appearance and filed written statement taking several preliminary objectionsincluding thatthe complaint pertains to commercial transaction and is not maintainable and is liable to be dismissed and the parties required to be directed to resolve their disputes by referring the same to arbitration tribunal in accordance with the terms and conditions agreed between the parties under the application form.  The OP has stated that the complainant has filed the present complaintfor recovery of assured return @ Rs.23,750/- per month and as per provisions of the Consumer Protection Act, 1986, the recovery proceedings are not maintainable before the Consumer Forum. Hence, the present complaint is liable to be dismissed. The OP has stated that the complainant has booked a commercial unit/office space which is only for earning profit  through leasing and re-selling the unit and is not an end user hence is not a  consumer and not entitled to approach the consumer court. The OP has stated that the matter pertains to binding contract with the answering OP and the complainant had specifically agreed and undertook to abide by the terms and conditions stating therein.  Hence, the Commission has no jurisdiction to hear the case and the case is liable to be dismissed.
3. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
5. On 01.04.2024, the case was listed for arguments. We have heard Ld. Counsel for both the parties and the case was reserved for order.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record.
7. It is the case of the complainant that he has purchased a virtual office space measuring constructed area 500 sq. ft. in the project of OP namely ‘Imperia H2O’ at Knowledge Park V. Greater Noida. The MOU was signed on 28.01.2013 at the office of OP at Delhi. As per the agreement, the complainant has to pay Rs.1,25,000/- on the date of possession of virtual unit or physical unit whichever is earlier.  The OP has promised to pay fixed payment of Rs.23,750/- every month w.e.f. 18.01.2013 till March, 2014 and further the OP has confirmed to pay assured return of Rs.23,750/- from April, 2014 to April, 2016 irrespective of possession of unit is handed over to the complainant or not.  The OP has assured to handover virtually/legally without any physical allotment.  The complainant has opted for 4^th floor in his application.  The transfer deed/buyer agreement was to be signed either in favour of association to be formed by all purchasers including complainant or individually withthe complainant.  There was no parking or club membership to be paid by the complainant at the time of handing over the possession of the space.  The complainant has handed over a post datedcheques for each financial years (F.Y. 2012-13, 2013-14) but there was delay in release of monthly assured return during F.Y. 2014-15.   The complainant has stated that assured return w.e.f. 01.05.2016 are not released inspite of the fact that the complainant has paid Rs.2,65,500/- by ECS and Rs.75,000/- by cheque dated 20.06.2016. The complainant has paid total consideration of Rs.15,00,000/- to the OP and the OP has not paid the assured return since April, 2016. Moreover, the OP has changed the space from 4^th floor to 10^th floor without consent of the complainant.  The OP has assured the complainant to handover the possession of space by 2016 but the completion certificate was not obtained by the OP.
8. The OP has neither handed over the possession of space nor refunded the assured return since April, 2016 andthe deposited money to the complainant, which amounts to deficiency in service and unfair trade practice on the part of the OP. Non-delivery of possession of space on receipt of booked amount within a reasonable time amounts to deficiency in service and unfair trade practice on the part of the OP.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

9. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 of the CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties.
10. It is clear from the records that the complainant has booked the space with the OP, made entire payment as demanded by the OP and despite receipt of the amount, the OP has neither handed over the possession of the spacenor paid the assured returnand the deposited money to the complainant.  We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
11. Accordingly, we allow the complaint and direct the OP to refund Rs.15,00,000/-(Rupees Fifteen Lakh) to the complainant alongwth an interest @ 6% p.a. from the date of deposited moneyandRs.6,00,000/- (Rupees Six Lakh) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of the order failing which OP shall be liable to pay entire amount alongwithinterest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announced in the open Court on 08.10.2024.