DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.62/2020

Sh. Karamvir Rathi

S/o Sh. Inder Singh Rathi

R/o 56 Rajpur Khurd, P.O. Maidan Garhi

New Delhi-110068

….Complainant

Versus

M/s Raheja Developers Ltd.

W4D-204/5 Keshav Kunj

Western Avenew, Sainik Farm

New Delhi-110062

(Through its Managing Director)

       ….Opposite Party

 Date of Institution    :  28.02.2020   

 Date of Order            :  16.10.2024     

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

ORDER

Member: Ms. Kiran Kaushal

1.       Facts of the case as pleaded by the complainant are that complainant purchased a flat from M/s Raheja Developers Ltd. hereinafter referred to as OP.

2.       It is stated that the complainant entered into an agreement with OP on 18.01.2016 for purchase of a flat at the Krishna Housing Project of OP. It is stated that the complainant was allotted flat No.1005 in Tower E-3, on First Floor measuring 452.33 Sq. Ft. carpet area and 57.74 Sq. Ft. Balcony area.  It is stated that the complainant was to pay Rs.16,57,257/- as the sale price @ Rs.3,600/- per Sq. Ft. for the carpet area and Rs.500 per Sq. Ft. for balcony to be paid as per pattern plan.

3.       It is stated that the complainant has made the payment of Rs.14,96,493/- as per the payment plan and the balance payment of Rs.2,07,157/- plus ST and registration, stamp duty and other charges were to be paid at the time of handing over of the flat. In the Agreement OP has claimed to have obtained all sanction/approval from the concerned competent authority.

4.       As per the agreement dated 18.01.2016 time is an essence not only in making payment/sale consideration but also for handing over possession of the allotted flat.  As per Annexure-A of the agreement the possession was to be given after 48 months of the allotment of the flat i.e. by 06.07.2019 but till date the flat has not been handed over by OP. It is stated that due to negligence of OP complainant has been put to extreme hardship, mental stress, strain and financial loss.

5.       Alleging deficiency of service complainant approached this Commission with prayers for direction to OP to hand over the allotted flat and also to compensate for mental agony, harassment and financial loss @ 24% per annum OR refund/return the payment received by OP towards the cost of the flat with interest @ 24% per annum; to pay the cost of proceeding and to produce the status report of the development of the allotted flat.

6.       OP resisted the complaint stating interalia that the complaint is barred by limitation as the cause of action allegedly arose on 18.01.2016 when the agreement was executed.  Since no grievance was raised by the complainant till 17.01.2018 the complaint now is time barred.  It is settled that neither correspondence after the arisen cause of action nor legal notice extend the period of limitation.

7.       It is next stated the complainant has not been able to prove as to which action of OP-1 was not in accordance with the agreed terms and conditions which amounted to deficiency in service or unfair trade practice. It is further stated that dispute arising in respect of an agreement to sale a flat does not relate to rendering any service within the meaning of section 2(1) (o) of the Act. OP to prove the same has relied upon Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 by Hon’ble Supreme Court, OP has also placed reliance on Magus Constructions Pvt. Ltd. Vs. UOI (2008) 15 VST 17. (Guwahati) among other judgments. 

8.       It is next stated that compensation under section 14(1)(d) can only be given if loss due to negligence is established. In the absence of any specific allegation with particulars and proof that loss is caused on account of negligence no order can be made for compensation or direction for making any payment. It is further stated that the allegations made by the complainant are of contractual nature and cannot be considered under the Consumer Protection Act. Since the allegation in the present complaint only relates to deciding the issue of refund of amount same can only be adjudicated by the civil court after calling for detailed evidence hence the same cannot be decided under summary proceedings.

9.       It is further stated that Real Estate Regulation Act oust the jurisdiction of Consumer Protection Act 2019. OP has raised another objection that complainant is not a consumer as the supporting affidavit to the complaint shows that the complainant already had residential accommodation in Delhi. The fact that the complainant had not disclosed that he does not have any other residential accommodation other than the booked plot itself suggests that the booking in OP’s project is for commercial purpose.

10.     OP has denied that in the agreement OP had claimed that they have already received sanctions/approval from the concerned authority. Reference in this regard is made to Recital 1 of the Agreement which states as under:-

“ AND WHEREAS the Allottee has applied for allotment of flat/Unit after satisfying himself/ herself about the right, title, location, tentative layout plan, building plan, various approvals in favour of the company to develop, market and convey interest agreed.”

11.     It is next stated that the time period for handing over possession as per clause 5.2 of Agreement is tentative in nature. It is stated that clause 5.2 is to be read along with clause 5.4 and 5.5 of the Agreement. The handing over the possession cannot be read to mean simplicitor 48 months from the date of allotment.

12.     Complainant has filed rejoinder to the written statement filed by OP wherein it is stated that not providing the possession is a continuous wrong therefore the complaint is not barred by limitation. In this regard reliance is placed on Godrej Property Ltd Vs Shri Onkar Nath by SCDRC, Ahemdabad, Gujarat. Complainant has further relied on Pioneer Urban Land and Infrastructure Vs Govindan Raghvan decided on 02.04.20219 by Hon’ble Supreme Court wherein it is held that the builder failed to comply with the contractual obligation by not offering possession of the flat within the stipulated time therefore this would constitute deficiency of service.

13.     Evidence and written arguments have been filed on behalf of both the parties. Submission made on behalf of parties are heard. Material placed on record is perused.

14.     Admittedly, complainant  paid consideration of Rs.14,96,493/- to OP towards  a flat at Krishna Housing Sector 14, Sohna, District Gurgaon. As per the payment plan complainant was to make the balance payment of Rs.2,07,157/- plus ST and registration, stamp duty and other charges at the time of handing over of the flat.

15.     On perusal of the material placed before us, it is noted that OP has raised numerous objections to the complaint.

16.     First objection raised by OP is that the complaint is time barred as the complaint was not filed within two years of execution of the agreement between the parties.  Hon’ble National Commission in Mehnga Singh Khera and Anr Vs M/s Unitech Limited I (2020) CPJ 93  held as under-

“It is settled proposition of law that failure to give possession of a flat is  continuous wrong and constitutes a recurrent cause of action as long as the possession is not delivered to the buyer.”

Since OP has not handed over the possession of the flat to the complainant the cause of action subsists. This objection of OP is rejected.

17.     The second objection raised by OP is that this Commission does not have the jurisdiction to entertain the instant complaint, the complainant should have approached RERA for redressal of his grievance. As per section 100 of Consumer Protection Act, 1986,  2019 the remedies available with the complainant are in addition to and not in derogation  of any other law. For ready reference Section 100 of Consumer Protection Act, 2019, is reproduced as under-

“Act not in derogation of any other law- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

18.     Third objection raised by OP is that since the parties are bound by a contract, this Commission does not have jurisdiction, complainant should have approached the Civil Court for redressal of his grievance. 

Hon’ble Supreme Court in B.B Patel Vs DLF Universal Ltd held that when possession of the allotted plot/flat/house is not delivered within the specified time……. The allottee is entitled to refund of the amount paid, with reasonable interest thereon from the date of payment till the date of refund.

Since the complainant has alleged deficiency of service as OP had failed to fulfill the contractual obligation,  instant complaint is very much maintainable in this Commission. This contention of OP is also rejected.

19.     Fourth objection raised by OP is that the said flat has been purchased for personal gain therefore transaction between the parties is commercial in nature hence the  complaint is not maintainable in this Commission. OP has not filed any cogent evidence to prove that the said flat was being purchased by the complainant for investment purposes.  Merely by stating that complainant already had residential accommodation in Delhi is not sufficient to prove the fact that the said flat is purchased for commercial purpose.

Hon’ble National Commission in Saurabh Kasturia and Anrs Vs M/s Ramprasth Promoters held  that the onus shifts to OPs to establish that complainant has purchased the same to indulge in purchase and sale of flats as was held by this Commission in Kavita Ahuja Vs Shipra.

OP has failed to discharge the onus to prove that the flat in question was purchased for commercial purpose. Hence this objection of OP is also rejected.

20.     Another objection raised by OP is that no service is being rendered by OP. The allegation in the complaint relates to agreement to sell the apartment. The said objection of OP is misconceived and frivolous  as complainant has approached this Commission alleging that OP has not provided the possession of the flat within the stipulated period.

Section 2 (42) CPA, 2019 states as under-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply, of electrical or other energy, telecom, boarding or lodging or both, housing, construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charges or under a contract of personal service;”

Hence this objection of OP stands rejected too.

21.     It is noticed that the allotment letter towards the flat was issued to the complainant on 18.01.2016 and even after paying substantial amount to OP towards sale consideration by 15.01.2018 complainant has not received the possession of flat till date. Hence, OP is found to be grossly deficient in service as OP  has failed to comply with the contractual obligations.

22.     In light of the aforesaid discussion, OP is directed to refund Rs.14,96,493/- with interest @9% p.a from the dates of the payment/installments made within 03 months from the date of order, failing which OP shall pay the above stated amount with interest @12% p.a till realization.

Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.