IN THE STATE COMMISSION: DELHI

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

Date of Hearing:01.02.2021 

Date of Decision:12.02.2021

Complaint No.1242/2015

IN THE MATTER OF

HARCHARAN SINGH

S/o Thervinder Singh

R/o B-67, Ganesh Nagar,

Near Tilak Nagar,

New Delhi-110018

PRIYANKA

W/o R.P. Singh

R/o B-67, Ganesh Nagar,

Near Tilak Nagar,

New Delhi-110018….Complainants

VERSUS

          M/S TDI INFRASTRUCTURE LIMITED

          Upper Ground Floor,

Vandana Building,

          11, Tolstoy Marg, Connaught Place,

          New Delhi-110001

          Through its Managing Director                           ....Opposite Party

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER 

1.   Whether reporters of local newspaper be allowed to see the judgment?  Yes     

 2.   To be referred to the reporter or not?                                                         Yes

Present:       Sh. Pawan Kumar Ray, Counsel for the Complainant

                   Ms. Yashodhara Gupta, Counsel for the Opposite Party

          ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Non-delivery of the possession of the plot H-761A at TDI Infrastructure at Kundli, booked by Sh. Harcharan Singh and Ms. Priyanka, in the project of M/s TDI Infrastructure Limited at Kundli, despite abnormal time having been elapsed led to filing of this Complaint before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, praying for relief as under:-

It is, therefore most respectfully prayed that this Hon’ble Court may be pleased to:-

1. Allow the present complaint;
2. Direct the OP to immediately handover the possession of the plot bearing its number H-761/A in fully developed condition as promised in the brochure/buyer-builder agreement alongwith all amenities as promised alongwith all requisite documents such as deed, Mutation, Approval from concerned authorities etc.
3. Direct the Op to pay an interest @ 21% p.a. from the date of deposit till the actual handing over the possession of plot i.e. Rs. 40,00,000/- till January, 2016;
4. Direct and restrain the OP from raising further illegal demand till the offer of actual possession alongwith all the legal formalities;
5. Direct the OP to provide all the amenities as promised to the complainant and also handover the plot with the specification mentioned Builder-Buyer Agreement;
6. OP may be further directed to compensate the complainant to the tune of Rs. 10,00,000/- for mental harassment and unfair trade practices.
7. Direct the OP to clarify the status of the land area i.e. the approach road to and in front of the plot and the part area in front of the plot and plot land.
8. OP may also be directed to pay the cost of the complaint to the tune of Rs. 35,000/- as litigation expenses.
9. Pass such other or further order/orders as may be deemed fit and proper on the facts and in the circumstances of this case.

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The property in question was initially booked by Smt. Parneet Kaur but later with due approval of the TDI Infrastructure, the said property stood transferred in the name of Sh. Harcharan Singh and Ms. Priyanka who are now complainants before this Commission. TDI Infrastructure would hereinafter be referred to as OPs.
4.           The total consideration amount of the property is @ Rs. 5250+EDC @1662.50 + PLC Rs. 32,812.50 = Rs. 17,60,937.50. All the due payments/instalments, EDC and PLC have been made amounting to Rs. 16,29,687.00 i.e. the 90% of the instalment amount + EDC and PLC. The balance 10% instalment payable on possession has not yet been demanded by the OP. The complainants made all the instalments as demanded by the OP by way of Demand Letter on different dates between the years of 2007-2008. Complainant paid the EDC charge also as demanded by the OP. It is pertinent to mention here that OP had charged interest on the delayed payment of EDC.  The complainants even after several requests and umpteen visits to the office of the OP even after meeting with Senior Manager, Officials, who kept assuring the complainants that possession, would be handed over within 3-4 months, also turned out to be a false assurance only with the motive to delay the handing over of the possession. The grievances of the complainants was also placed before CREDAI where the Mr. Sourav Vij. AGM of the OP after confirmation from the company made the statement that company will hand over the possession of the plot within 2-3 weeks and accordingly an order was passed by Justice S.K. Dubey, (Retd.) Chairman, CREDAI on 05.08.2015 the statement of the AGM of the OP but despite that the OP failed to possession has not been handed over. The Complainant faced with this situation sent a legal notice dated 18.09.2015 requesting the OP to hand over the possession alongwith the compensation for delayed period but no response came from the OP. The complainants alleging deficiency have alleged that even after the lapse of more than 10 years from the date of booking/21.02.2005 the OP/developer has failed to hand over the property to them and thus had been deficient in rendering service as contemplated under Section 2(g) and (o) of the Act.
5.           In these circumstances the complaints have filed this complaint before this Commission for the redressal of their grievances. OPs were consequently noticed and in response thereto they have filed their written statement response resisting the complaint both on technical ground and on merit stating that the present complaint is not maintainable on account of lack of pecuniary jurisdiction as the complainant by way of the present complaint is seeking for possession of the property in question, the value of which is Rs. 17,60,937/- which amount being less than Rs. 20 Lakhs this Commission lacks the pecuniary jurisdiction to hear and to dispose of this case. Secondly, the present complaint being un-supported by the requisite affidavit cannot be relied upon and therefore is liable to be dismissed on this account itself.  Thirdly, the complainants are not a consumer within the meaning of the Consumer Protection Act 1986 the complainants having purchased the property in question from one Parneet Kaur, and thus they are not the consumers of the OPs. Further on merit they have denied the averments contained in the complaint and thus they are not entitled for the relief claimed.  
6.           The complainant has also filed rejoinder thereafter rebutting the contentions averments contained in the complaint. Both sides have filed their evidence by way of affidavit in support of their pleadings. Their written arguments are also on record.
7.           This matter was listed before this Commission for final hearing on 01.02.2021 when the counsel for both sides appeared and advanced their arguments, the complainants for the possession of the flat with interest for the delayed period and the OPs, maintaining no deficiency of service on their part, for the dismissal of the complaint. I have perused the records of the case and heard the arguments.
8.           Short question involved in this case is whether relying on the terms of agreement between the complainants and the OPs there has been delay in handing possession of the plot booked by the complainants. If so whether the delay done is attributable to the OPs or there were factors beyond their control accounting for the delay. If the delay was attributable to the OPs, whether the complainants are entitled to the compensation as prayed for in the complaint and if so, the extent to which the order can be passed.
9.           I may in the first instance deal with the objections of the OPs. The first objection of the OPs that the value of the property in question being less than Rs. 20 Lakhs, this Commission relying on the provisions of Section 17(1)(a)(i), lacks the pecuniary jurisdiction to hear and to dispose of the complaint is overruled keeping in view the authority of the Hon’ble NCDRC.
10. The Hon’ble NCDRC in the matter of Amrish Kumar Shukla versus Ferrous Infrastructure Pvt. Ltd. as reported in I [2007] CPJ 1 (NC) is pleased to hold as under:-

In a complaint instituted under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of aggregate of the value of the goods purchased or the services hired or availed by all the consumer on whose behalf or for whose benefit the complaint is instituted and the total compensation claimed in respect of such consumers.

11. In the given case the value of the property and the interest claimed is more than Rs. 20 Lakhs and thus the complaint is entertainable before this Commission.
12. Their next objection that the complaint since not supported by affidavit is to be dismissed cannot be accepted since on perusal of the records it is noticed that the complaint is duly supported by affidavit.
13. The next objection of the OPs that the complainant having purchased the property from Smt. Parneet Kaur is not a consumer of the OPs, cannot be accepted as the complainant has stepped into the shoes once the agreement between the two was executed and the OPs have consented to it.
14. Having regard to these facts the objections of the OPs since not maintainable are sequentially rejected and I may now proceed to examine the complaint on merit. The fact that the complainant had booked a plot with the OPs is indisputed. Payment to the extent has already been made, is also not in dispute. A lot of time since the booking of the plot has elapsed.
15. In that view of the matter the inevitable conclusion is that there was gross deficiency as defined in Section 2(1)(g) of the Act on the part of the OPs in its failure to deliver possession of the plot to the complainant in terms of the allotment letter. It is trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency of service, such deficiencies or omissions as per the law settled by their Lordships in the Apex Court in the matter of Lucknow Development Authority versus M.K. Gupta as reported in (1994) 1 SCC 243 tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act as well.
16. Having arrived at the said conclusion I am of the considered opinion that this complaint deserves to be accepted. The core question for consideration now is as to how the complainants are to be compensated for the suffering caused to the complainant at the hands of the OPs for indulging in the unfair trade practice. The provisions of the Act enable a consumer to claim and empower the commission to redress any injustice done to a consumer. The Commission is entitled to award compensation for the injustice suffered by him.
17. The Hon’ble NCDRC in the matter of Anil Raj and ors versus Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016 as reported in MANU/CF/0105/2016 is pleased to observe as under:

“The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical mental or even emotional suffering, insult or injury or loss. Therefore for the purpose of determining the amount of compensation, the commission/forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the OPs”.

18. In Ghaziabad Development Authority v. Balbir Singh-MANU/SC/0282/2004: (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of benefit of escalation of the price of the flat/plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.
19. The Hon’ble NCDRC in the matter of Santosh S. Mayekar and ors vs. Rupji Construction and another as reported in IV [2019] CPJ 178 (NC) is pleased to observe in para 10 as under:-

Since the respondent has failed to justify the delay in delivery of possession of the allotted flats to the complainants/appellants, it must pay adequate compensation to them for the said delay. Considering all the facts and circumstances of the case, the respondents are directed to pay all inclusive compensation, in the form of simple interest @ 8% p.a. to the complaints/appellants till the date on which the possession was actually delivered. The compensation shall be paid w.e.f. the committed date of delivery of possession, on the amount which had been paid by that date. On the balance amount paid by the complainants/appellants to the respondent, the compensation in the form of simple interest 8% p.a. shall be paid w.e.f. the date of each payment till the date on which the possession was delivered. The possession is stated to have been delivered in October 2017.

20. Keeping in view the facts and circumstances of the case and noting that the OPs had agreed to hand over the possession of the plot as also keeping the legal position as discussed above, particularly the point that awarding the interest or the compensation for the delayed period is left to the discretion of the court deliberating upon the issue, following directions are issued to the OPs, namely,

1. Hand over the possession of the plot booked by the complainant subject to their meeting the requirements and secondly,
2. Pay to the complainant compensation for the delayed period in the form of simple interest at the rate of 9% for the period from the date of possession of the flat was due to be delivered till the delivery of the possession.

21. The OPs are directed to comply with the directions contained in this order within two months from the date of receipt of this order failing which the complainants would be free to move this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
22.  Ordered accordingly.
23. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
24. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

29.01.2021

sl