Delhi

StateCommission

CC/113/2017

ROOPESH JOSHI & ANR. - Complainant(s)

Versus

M/S SUPERTECH LTD. - Opp.Party(s)

HONEY TANEJA

09 Mar 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :  09.03.2017

Date of Decision : 17.03.2017

Complaint No. 113/2017

 

IN THE MATTER OF:

 

1. Roopesh Joshi.
2. Smt. Deepti Joshi.

 

Both residents of :

 

R/o NO 100, Swarnim Vihar,

Duplex, Sector-82,

Noida (Uttar Pradesh).                                                               ........Complainants

 

VERSUS

 

M/s. Supertech Ltd.,

Through its Director,

1114, 11^th Floor,

Hemkunth Chambers,

89, Nehru Place,

New Delhi-110019.

 

Also at:

 

M/s. Supertech Ltd.

Supertech House, B-28-29,

Sector-58, Noida-201307.                                                                         …….…Opp. Party

 

CORAM

 

SH. O. P. GUPTA, MEMBER (JUDICIAL)

SH. ANIL SRIVASTAVA, MEMBER

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

 

Present :  Complainant through Counsel

PER:  SHRI ANIL SRIVASTAVA, MEMBER

         

          Controversy in the complaint filed by Sh. Roopesh Joshi and Smt. Deepti Joshi, both resident of 100, Swarnim Vihar, Duplex, Sector-82, Noida, Uttar Pradesh, hereinafter referred to as Complainants, centers around the question whether one is a consumer after taking over possession of an edifice.

          Facts necessary for disposal of the case are there.

          M/s. Supretech, hereinafter referred to as opposite party, having their head office at New Delhi had launched a project namely, Czar Suites located at Sector Omicorn-I, Greater Noida, Uttar Pradesh.  The complainants had applied for a flat in that project  under the EMI Subvention Scheme and consequently a Memorandum of Understanding was executed by Opposite Party with complainant on 27.11.2007.  A flat No.502, Darius Tower 8, at 4^th Floor of the project was allotted to the complainants.  The cost of the flat was Rs.67,34,375/-.  As agreed to complainant made the payment towards booking amount of Rs.5,85,938/-  on 24.11.2007 and thereafter an amount of Rs.49,80,468/- on 10.01.2008 for which complainant had availed  credit facilities from ING Vysya Bank.

          The complainants on their visit to the site of the project in 2009 realized that construction of the Tower-Darius-08 had come to a standstill although construction on all other towers of the opposite party with smaller dwelling units was going on and construction in those towers namely Caesar/Royal/Aurther were completed in short span and possession was also handed over in 2012 while the complainants were still awaiting possession fo the flat which was agreed to be handed over to them in the year 2009.

          The complainants sought the reason for the work suspension/slow progress and demanded to hand over the possession of the flat at the earliest. There was however no communication from opposite party despite repeated requests.  The complainants later received a notification for possession on 22^nd February 2014 from opposite party alongwith final statement of dues payable by complainant amounting to Rs.18.70,400/-. The said amount according to the complainant included many unexplained charges (other charges, interest, additional charges) which wee never informed to complainants earlier.

          After a lot of persuasions and discussions with respect to alleged additional charges, the matter got sorted only in November 2014 and (opposite party issued a revised Payment Demand Letter for Rs.12,90,500/- which was paid by complainants in December 2014 to avoid any further interest and damages.

The complainants further submitted that their grievance did not end there as the opposite party extorted from clients a sum of Rs.1,06,000/- on account of alleged penalty on delayed payment which was reluctantly paid by the complainant under protest on 03.04.2015 by way of cheque to opposite party despite no delay on their part.          That was not the end of the matter. The opposite party further forced the complainants to pay an additional amount of Rs.83,000/- towards penalty for delay in registration to the (Greater Noida Authority which is otherwise attributable to opposite party only. However the complainants paid the aforesaid late penalty to opposite party under protest. Finally the sale deed was executed in the name of complainants and the possession of the flat was handed over on 21.06.2016. 

          The complainants soon thereafter protested and requested opposite party to refund the amount charged alongwith interest. All the exercise done by the complainants in persuading the respondents to refund the amount since not attributable to them proved an exercise in facility.  The complainants therefore alleged that the opposite party is liable to pay interest @ 18% per annum from the agreed date of possession i.e. November 2009 upto the date the possession of the said flat in June 2016.  The opposite party is also liable to compensate for the loss suffered by the complainants.

          Accordingly an amount of Rs.60,94,292/- for these reasons were demanded. Finding no response the complainants have filed a complaint before this Commission praying for relief as under:-

1. To direct respondent to pay delay penalty of Rs.56,05,292/- calculated on amount paid of Rs.55,77,406/- @18% per annum from agreed date of possession i.e. dated Nov. 2010 upto actual date of possession i.e. June 2016.
2. The respondent may please be directed to pay an amount of Rs.1,89,000/- towards refund of the wrongfully imposed penalty to the complainant alongwith interest @ 18% per annum from the date of payment till it is refunded.  Rs.83,000/- towards late payment charges alongwith interest.
3. The respondent may please be further directed to pay the amount of Rs.3,00,000/- as tax benefit loss suffered by the complainant alongwith interest thereupon from the date it was born out by the complainant till the date of actual payment.
4. The respondent may please be further directed to pay the amount of Rs.5,00,000/- as damages for causing tremendous mental harassment and sufferings to the complainants.
5. To grant punitive damages to the complainants as may be deem fit by the Hon’ble Commission in peculiar fact and circumstances of the case.
6. To grant the Rs.2,00,000/- on account of legal expenses in favour of the complainants.
7. Pass such other order as may be deemed fit in the facts and circumstances of the case.

          We have heard the arguments of the ld. Counsel for the complainants as also the records of the case on 09.03.2017.

          We notice from the records that the physical possession of the property was accepted by the complainants.  If that be the case, the complainants are no longer consumer within the meaning of Section 2 of the Consumer Protection Act, 1986.  Once a person is not within the ambit of Section 2  (supra) filing of a complaint under Section 17 of the Act is not maintainable.  For a relief under the provisions of the Act one has to be necessarily a consumer.

          The Hon’ble National Consumer Disputes Redressal Commission in the case of Smita Roy is Excel Construction as reported in II [2012] CPJ 204 NC has ruled that once the possession of the property has been handed over to  a person, such person is not a consumer. Similar view has been reiterated by the Hon’ble NC DRC in another matter of Harpal Arya is Housing Board Haryana as reported in II [2016] CPJ 36 NC.

          For all these reasons we dismiss the complaint, the complainants being no longer consumers, having taken over the possession of the edifice.

          Ordered accordingly.

          A copy of the order may be sent to the parties to the case free of cost as contemplated under the provisions of the Consumer Protection Rules 1986 read with Consumer Protection Regulations 2005.

          File be consigned to Record Room.

 

 

(ANIL SRIVASTAVA)                                            (O.P. GUPTA)                                  

  MEMBER                                                                   MEMBER (JUDICIAL)                                         

                               

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