IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION

   Date of Institution :     19.12.2017

Date of Reserving the order :   17.05.2022

   Date of Decision     :      02.06.2022

                                C No. 2039/2017

IN THE MATTER OF

Dr  Sri Venkata Madhu

149, Bhagirathi Apartments

Sector – 9, Rohini

Delhi- 110085

     (Through: Mr. K.P. Sundar Rao,  Advocate)                                                                                                                                                                                                                                ..…Complainant

VERSUS

1. M/s. Parsvnath Developers Limited

6^th Floor, Arunachal Building,

19, Barakhama Road,

New Delhi-110001

                   (Through: Mr. Rakesh Bhardwaj,  Advocate) 

2. Punjab National Bank
3.  

Dilshad Garden,

                                                                                 .....Opposite Party                                                                                      

HON’BLE MS. PINKI, MEMBER (JUDICIAL)

HON’BLE MS. BIMLA KUMARI, MEMBER (FEMALE)

1. Whether reporters of local newspapers be allowed to see the judgment?                                                                                              Yes
2. To be referred to the reporters or not?                                           Yes

Present:      Mr. K.P. Sundar Rao, advocate learned counsel                           for the complainant.

Mr. Rakesh Bhardwaj, advocate learned counsel for the opposite party

BIMLA KUMARI, MEMBER (FEMALE)

ORDER

1.                     Brief facts of the case are that the Opposite Party No 1 gave huge publicity through newspaper and brochures in respect of their project namely “Parsvanath Privilege”. Being instigated by the advertisement of the Opposite Party No 1, one Mr. Sanjay Wahi R/o C2D,67 C Janak Puri booked a residential three bedroom Flat No T3-1701 of approximate area of 1855 sq.ft @ Rs2,850/- per sq.ft in Parsvnath Privilege Greater Noida. The basic sale price of the flat was Rs. 52,86,750/- and he paid an advance of Rs10,00,000/- and the Opposite Party No 1 issued the receiptfor an amount of Rs10,00,000/ (Brochure and receipt is Annexure C-1 Colly).
2.                                        It is the case of the complainant that the flat buyer agreement was executed on17.08.2007 between Mr. Sanjay Wahi and Opposite Party No 1 with its standard specifications terms and conditions and payment plan (Agreement isAnnexure-C-2). The original allottee Mr Sanjay Wahi transferred the said flat to him on the same day i.e. 17.08.2017 and about the change of right to purchase the flat, in question, was also  communicated by the original allottee to the Opposite Party No 1, vide letter dated 17.08.2007 (Letter is Annexure C-3).

3.                                                 It is further case of the complainant that on the same day i.e 17.08.2007 he made further payment of Rs 3,21,688/- vide Cheque No 531913, drawn on Canara Bank New Delhi, to Opposite Party No 1, for which a receipt was also issued by the Opposite Party No 1 (Receipt is Annexure C-4). On 29.08.2007 he received a letter from Opposite Party No 1 whereby a demand of Rs 34,20,279/- (excluding 5% payable at offer of possession) was made (letter is Annexure C-5). The complainant decided to make the payment by taking house loan and approached Opposite Party No 2, Punjab National Bank, which after seeing the credibility of the complainant agreed to sanction the loan. The Opposite Party No 1 vide its letter dated 29.08.2007 confirmed the allotment of Flat no T3-1701, in “Parsavnath Privilege” to the complainant and further confirmed that they would obtain necessary permission, for sanction of the construction of the said flat and the project, from the relevant competent authorities and would not make any alterations in the said flat (letter issued by Opposite Party No 1 to Opposite Party No 2 is Annexure C-6). Thereafter, a tripartite agreement was executed between the complainant and the Opposite Party No 1 and Opposite Party No 2. The Opposite Party No 2 agreed to sanction a loan of Rs 36,00,000/- (The tripartite agreement is Annexure C-7). Thereafter, the Opposite Party No 2 sanctioned an amount of Rs 34,20,279/- via DD No 290327 in the name of Opposite Party No 1 and the same was duly acknowledged by the Opposite Party No 1. (Copy of the DD and receipt issued by Opposite Party No 1 is Annexure C-8 Colly).
4.                                                 It is further case of the complainant that he paid 95% of the total sale consideration as per the builder buyer agreement and inspite of paying the total amount by him (5% has to be paid at the offer of possession), the Opposite Party No 1 neither shown the readiness or possession of the Flat nor communicated any information regarding the expected date of delivery. Hence, he wrote a letter to Opposite Party No 1 on 27.05.2010 requesting the date of possession but there was no response from the Opposite Party No 1. Hence, he personally approached the Opposite Party No 1 to see the stage of construction but the representatives of Opposite Party No 1 did not allow him to enter the site and assured him that project would be handed over soon. The complainant again wrote a letter on 18.01.2014 to the Opposite Party No 1 and requested about the offer of possession but he did not receive any explanation from Opposite Party No 1.  Thereafter, he made several visits to office of Opposite Party No 1 till 2017. Then, all of a sudden he received a letter from Opposite Party no 1 stating that they had relocated his flat from T3-1701 to T8-403 without intimating the offer of possession. (The copy of letter dated 27.05.2010, 18.01.2014 and 28.06.2017 is Annexure C-9Colly).
5.                                       It is further case of the complaint that almost ten years have lapsed, since the date of Flat Buyer Agreement but he did not hear of the near date of offer of possession and he was fooled by the false assurances of delivery of the flat by Opposite Party No 1.
6.                                                 The complainant has further stated that there is deficiency in service and unfair trade practice on the part of Opposite Party No 1 and because of that he was put to extreme hardship despite the fact that he had paid the entire amount towards the said flat and without any fault on his parthe had been victimized by the Opposite Party No 1 in utterly unethical manner. He has prayed that Opposite Party No 1 be directed to refund an amount of Rs 47,41,967/- along with 18% interest from the date of payment till realization of the amount. He has also prayed that an amount of Rs 5,00,000/- be also directed to be paid by Opposite Party No 1 towards cost of litigation and the expenses and a further sum of Rs5,00,000/- towards compensation on account of mental agony and harassment caused to him.
7.                                                 The Opposite Party No 1 has filed the written statement wherein it has prayed for dismissal of the complaint by submitting that complainant has failed to make the payment as per payment plan and as per agreed terms of the Flat Buyer Agreement. The complainant vide letter dated 10.06.2010 was informed about the delay in the construction of the flat, due to global recession and re-scheduling the construction work (the letter is Annexure OP 2). The complainant is not a “consumer” as he is permanent resident of Delhi  and he booked the residential flat and made an investment in the real estate for commercial purposes. There was no deficiency in service on their part. The case involves complicated question of facts and law which need to be proved by leading detailed oral as well as documentary evidence. The proceedings before the consumer court are essentially summary in nature. The commission has no jurisdiction to entertain the present complaint. The complainant filed by the complainant is time barredaccording to section 24A of the Consumer Protection Act 1986, as the same has not been filed within two years from the date of cause of action.  On merits, the Opposite Party No 1 has denied the allegations of the complainant.
8.                                                 The complainant has filed rejoinder to the written statement of Opposite PartyNo 1, wherein he has denied the allegations of Opposite Party No 1 and re-affirmed and reiterated all the facts submitted by him in his complaint. He has submitted that he never received the letter dated 10.06.2010 from Opposite Party No 1. But, the contents of the said letter project that there was admission on part of Opposite Party No 1 that their project was delayed and they would pay compensation for the delay by way of penalty, as per Flat Buyer Agreement (10(C)).He purchased the property by taking loan from bank for his residential purpose and till date he is paying installments to the bank @ 18% interest on the loan amount. No complicated question of facts and law is involved in the present matter and the case can be heard in summary jurisdiction. He has specifically denied that on account of global recession the project of Opposite Party No 1 got hurt. The plea of Opposite Party No 1 is after thought to cheat the complainant and other flat buyers. The complaint has been filed within period of limitation.

The complainant did not claim any relief from Opposite Party No2 as it was a performa party and thus no notice of the complainant was issued to Opposite No 2 as is clear from order dated 17.01.2018.

9.                                                 The complainant and Opposite Party No 1 have filed their evidence by way of affidavits wherein they have narrated all the facts, which are mentioned in their pleadings and the same are not discussed here to avoid repetition.
10.                                                 We have gone through the written submission filed by the complainant as well as Opposite Party No 1.
11.                                                 First of all, we would like to deal with the objections taken by the Opposite Party No 1.
12.                                         Whether complainant purchased the flat for ‘commercial purposes’ and he is not a ‘consumer’.

The expression ‘commercial purpose’ used in section 2 (1)(d) of the Consumer Protection Act 1986 came up for consideration before National Consumer Disputes Redressal Commission in Kavita Ahuja Vs. Shipra Estates Ltd CC 137 of 2010 decided on 12.02.2015 wherein it was held as under:-

                                     “The expression “commercial purpose” has not been defined in the Act and therefore, as held herein below by the Hon’ble Supreme Court in Laxmi  Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have to  go by the dictionary meanings,

“In the absence of a definition, we have to go by its ordinary meaning ‘Commercial’ denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile, having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise on a large scale” (Concise Oxford Dictionary)”.

Going by the Dictionary meaning of the expression “Commerce” as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)d of the Act should be availed for the purpose of promoting, advancing or augmentingan activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and /or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house(s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house(s).Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.”

13.                                       In Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) it was held as under:

‘A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that  house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose”.

14.                                                 Further in Narinder Kumar Bairwal and Ors. Vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors CC 1122/2018 decided on 01.11.2019 it was held by the Hon’ble National Commission as under:

‘The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in “purchase and sale of flats” as was held by this Commission in Kavita Ahuja Vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are “Consumers” as defined under Section 2(1)(d) of the Act.”

15.                                         Now, coming to the facts of the present case it is pertinent to mention that Opposite Party No 1 has not placed on record any material to show that the complainant was engaged in the business of purchasing and selling houses/the flats/houses on regular basis with a view to make profit by sale of such houses/flats and miserably failed to discharge the burden, which was on it. In our considered view, if the complainant has a house in Delhi and he made investment in the project of Opposite No 1 with a view to earn capital gains on account of appreciation in the market value of flat then it cannot be said that the complainant was not a ‘consumer’ and hepurchased the flat in question for ‘commercial purposes’. Hence, the contention of Opposite Party No 1 is answered in negative.

16.                           Whether the case involves complicated question of facts and law, which cannot be decided by this commission.

                             In J.J.Merchant Versus Shrinath Chaturvedi (2002) 6 SCC 635 it was inter alia held by Hon’ble Supreme Court as under:

‘Under the Act the National Commission is required to be headed by a retired Judge of this Court and the State Commission is required to be headed by a retired High Court Judge. They are competent to decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumers should be directed to approach the civil court.

“It was further held that merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be aground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards.”

17.                                                   In the present case we are of the considered view that there is no complicated question of fact and law is involved law as the case of the complainant comes under ‘housing category’. Moreover, in view of the settled law referred above, the complicated question of fact and law can always be decided by this commission. Hence, this contention of Opposite Party No 1 is also devoid of merits.

 18.                                 Whether this commission has no jurisdiction to entertain the present complaint

                                     In Rohit Srivastava Vs. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, It was held as under:

“Having heard Learned Counsel for the parties at some length, we are of the opinion that the order cannot be sustained. It is not in dispute that the Registered Office of Opposite Party No 1 Company is situated in Delhi, i.e. within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2) (a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint. In the light of the said provision, in our view, it was open to the Complainant to choose the Forum to file the Complaint, which on the second occasion he decided to file before the State Commission at Delhi.”

19.                                                   Now coming to the facts to the case it is clear from the memo of parties that Opposite Party No 1 is having its registered office at 6^th floor, Arunachal Building 19 Barakhamba Road New Delhi i.e. within the territorial jurisdiction of the State Commission. Since, the registered office of the Opposite Party No 1 is situated in Delhi we are of considered view that the commission has territorial jurisdiction to entertain the complaint. Hence, this contention of Opposite Party No 1 is also answered in negative.

20.                            Whether the complaint filed by the complainant is barred by limitation

                                In Satish Kumar Pandey and Others Vs M/s Unitech Limited CC No 427 of 2014 decided on 08.06.2015. It was observed by National Consumer Dispute Redressal Commission as under:-

‘It is by now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. However, in the present cases, the opposite party did not refuse possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants.’

Reliance in this regard may also be placed upon the decision of the Hon’ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, IV (2012) CPJ 12 where the Hon’ble Supreme Court held that insuch a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot.

21.                                                   In the present case the builder buyer agreement EX CW/1/2 was executed on 17.08.2007 between the original allottee Mr Sanjay Vahi and Opposite Party No 1later on,a tripartite agreement EX CW/1/7 was executed between complainant,opposite party No 1 and opposite party No 2on 29.08.2007 i.e. just after 12 days of the execution of builder Buyer Agreement whereby Opposite party No 1 assured opposite party No 2 that construction of flat would be completed as per schedule and as per sanctioned plan and on completion of construction the title of the flat would be conveyed in the name borrower. It is significant to note that the complainantpaid 95% of the total saleconsideration to Opposite Party No 1after taking loan of Rs 34,20,279/- from the bank but despite that Opposite Party No 1 did not offer the possession of flat to him nor communicated any information regarding the expected date of delivery. The complainant wrote several letters to Opposite Party No 1and requested them to offer the possession of flat to him but he did not receive any information from Opposite Party No 1 in this regard. He has deposed in his affidavit that all of sudden he received a letter exhibit CW/1/9 Colly dated 28.06.2017 from Opposite Party No 1  whereby he was informed that his flat i.e T3-1701 was re-located to T8-403 with a view to achieve the early completion of the project. In other words, till June 2017 the complainant was not offered possession of the flat and was simply re-located other flat without his consent. It is significant to note that Opposite Party No 1 did not refuse to give the possession of the flat to the complainant. It is also significant to know that opposite party No 1 wrote the letter exhibit CW1/9 to complainant on 28.06.2017and the complainant had filed the present complainant on 19.12.2017. Thus, in these circumstances it cannot be said that the complaint filed by the complainant is barred by the limitation and the same is without any cause of action. Hence,this contention of Opposite Party No 1 that complainant is barred by limitation is also answered in negative.

22.                                                    Now, the last question that arises for consideration is whether there is any ‘deficiency in service’ on the part of opposite party No1.

                       In Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, it has been discussed as follows:

“23…….The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:

(g) “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.

24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression ‘service’ in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1) (e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation.

23.                                                   In the present case the Flat Buyer Agreement exhibits CW/1/2 was executed on 17.08.2017 and as per Clause 10(a) of the said agreement, the construction of the flat was to be completed within a period of 36 months from the date of commencement of the construction of the particularblock in which the flat was located on receipt of all requisite approvals including the sanction of building plan, environment clearance etc subject to force majeure and restraints/restrictionsfrom any court/authority, non-availability of building material and circumstances beyond the control of thedeveloper and subject to timely payment to the buyers.

24.                                                  It is note-worthy that the complainant has paid 95% of the total sale consideration of the flat within one month of the execution of Flat Buyer Agreement/ as the Demand Draft exhibit CW/1/8Colly for amount of Rs 34,20,279/- was issued by opposite party No 2 in favour of opposite party No 1 and opposite party No 1 also issued the receipt on 13.09.2007 to the complainant in respect of the said amount.In other words, the complainant made the timely payment as per the Builder Buyer Agreement and there was no delay on his part for making the payment in respect of the flat in question. On the other hand, the Opposite No 1 has not placed any material on record to show that the construction of the flat could not be completed due to force majeure and restriction/restraint from any court/authority and non-availability of building material or any circumstance beyond the control of the developer and not payment of the dues by the complainant. The opposite party No 1 has also not placed on record any material to show that real estate sector went to global recession after execution of the Flat Buyer Agreement and receiving 95% of the total sale consideration from the complainant.

25.                                                    It is note-worthy that construction of the flat in question is not completed till date as no offer has been made by opposite party No 1 to complainant for possession of flat. It is also significant to note that opposite party No 1 simply relocated another flat i.e.T8-403 to him. It clearly shows that the construction of the flat allotted to the complainant i.e T3-1701 was not complete till June 28^th 2017.In other words, the opposite party No 1 has failed to complete the construction of the flat as per the Builder Buyer Agreement.

          In these circumstances, we are of the considered view there was ‘deficiency in service’ on the part of the opposite party No 1 and complainant was not at all at fault for any delay in the completion of the construction of the project of the opposite party No 1.

26.                                                    Thus, keeping in view the totality of the facts and circumstance of the case we are of the considered view that is opposite party No 1 is liable to refund the entire amount paid by the complainant i.e. Rs 47,41,976/-

27.                                                    In the present case, the complainant has prayed for award of interest @ 18% from the date of payment till the realization of the amount in view of the judgment ofNCDRC in CCNo 1229/2015 titled as ‘Poonam Vasisht Vs Parsvnath Developer’ decided on 11.04.2020 and CC 200/2011 titled as Abishek Kumar Dwivedi Vs Parsvnath Developers Ltd decided on 05.05.2014.

In the present case, the complainant has taken the loan from the bank and made the payment of Rs 34,20,279/- to opposite party No 1 vide Demand Draft No 290327 and opposite party No 1 issued the receipt in this regard to complainant. It is significant to note that Tripartite agreement EX/CW/1/7 was also executed between the complainant, opposite party No 1 and opposite party No 2, and execution of that agreement is not denied by opposite party No 1. It is further significant to note that complainant has submitted in his rejoinder that he is paying interest @ 18% per annum to the bank on the loan amount. In these circumstances and in view of the above referred judgments of Hon’ble NCDRC in Poonam’s and Abishek’s case the interest @ 18% per annum is awarded on the amount paid by the complainant.

28.                                                    Accordingly, opposite party no 1 is directed to refund the entire amount paid by the complainant i.e. Rs.47,41,967/- along with interest @ 18% per annum from the date of each payment till realization of the amount.

29. The opposite party No 1 is further directed to pay a sum of Rs 2,00,000/- as compensation for mental agony and harassment to the complainant.

30. The opposite party No 1 is further directed to pay a sum of Rs50,000/-as litigation costs to the complainant.

31. A copy of this judgment be provided to all the parties free of cost asmandated by the Consumer ProtectionAct, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

32. File be consigned to record room along witha copy of the Judgment.

(PINKI)

Member (Judicial)

(BIMLA KUMARI)

Member (Female)

PRONOUNCED ON 02.06.2022