Delhi

StateCommission

CC/294/2019

SMT. SARIKA GUPTA - Complainant(s)

Versus

M/S TDI INFRASTRUCTURE LTD. - Opp.Party(s)

V.K. SHARMA

20 Sep 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:20.09.2019

 

                                                                   Date of decision:26.09.2019

 

Complaint No.294/2019

Complaint No.295/2019

 

 

IN THE MATTER OF

 

1. C-294/2019

Smt. Sarika Gupta,

W/o Late Sh. Rajeev Gupta,

R/o E-383, Second floor,

Greater Kailash Part-II,

New Delhi….Complainant

 

VERSUS

 

M/s TDI Infrastructure Pvt. Ltd.,

(Formerly Intime Promoters (P) Ltd.,

Through its P.O./C.M.D.,

Having its registered office at:-

9, Kasturba Gandhi Marg,

New Delhi-1                                                                .…Opposite Parties

 

IN THE MATTER OF

 

2. C-295/2019

Sh. Vikas Gupta

S/o Late Sh. Chhote Lal,

Hauz Quazi, Delhi-110006,

 

Presently at:-

181, Ground Floor, Dayanand Vihar,

•  

 

VERSUS

 

M/s TDI Infrastructure Pvt. Ltd.,

(Formerly Intime Promoters (P) Ltd.,

Through its P.O./C.M.D.,

Having its registered office at:-

9, Kasturba Gandhi Marg,

New Delhi-1                                                           .…Opposite Parties

 

 

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. V.K. Sharma, Counsel for the complainants

                                                   None for the OPs even in the second call on 20.09.2019

                                                   No one appeared on their behalf even on 23.09.2019

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             These two complaints, bearing numbers C-294/2019 and C-295/2019 filed by Smt. Sarika Gupta and Sh. Vikas Gupta, respectively, both resident of New Delhi, before this Commission, for short complainants, under the provisions of the Consumer Protection Act 1986, the Act, against M/s TDI Infrastructure Pvt. Ltd., hereinafter referred to as OPs, since involving same facts and the same law points are being taken up for disposal together by a common order taking C-294/2019 as the lead case. Both these complaints were originally filed before the District Forum, New Delhi but subsequently by virtue of the orders dated 15.11.2018 passed by the District Forum, returning the complaint, since they were handicapped hearing these complaints on the ground of pecuniary jurisdiction, relying on the orders/judgments passed by a three Member Bench of the Hon’ble National Consumer Disputes Redressal Commission on 07.10.2016 in the matter of Ambrish Kumar Shukla and ors vs. Ferrous Infrastructure Pvt. Ltd., these complaints have been filed before this Commission for adjudication. This Commission has taken up these complaints from the stage it was returned by the District Forum.
2.             Facts of the case necessary for the adjudication of the complaints are these.
3.             The complainant depositing the booking amount of Rs. 3,00,000/- had applied for a residential flat of the size of 1000-1100 sq. ft. in the upcoming project of the OPs, known as “Kingsbury” Luxury apartment at TDI City Kundli Sonepat. This was followed by Bhumi Pujan. According to the complainant nothing was heard from the OPs despite requesting them to let her know the progress made in the matter. In these circumstances, the complainant frustrated with the indifferent attitude of the OP addressed a communication to the OPs on 30.08.2019 requesting them to let them know the progress made in the project. The letter so sent is reproduced hereinafter:-

 

With reference to a receipt No. 30181, customer I.D. KFL-11407 in the name of Mrs. Sarika Gupta resident of E-383, Greater Kailash-II, New Delhi-110048, the undersigned had deposited a sum of Rs. 3,00,000/- by cheque bearing its no. 285054 drawn on oriental bank of commerce, Chawri Bazar, Delhi-110006, in favour of your company as an advance and registration fee against present and future project for 1000-1100 sq. ft. approx. residential flat.

It is regretted to note here that till date your good office has not apprised about the construction progress and other process of the project namely “TDI City” at Kondli, Sonepat, Haryana, alongwith any correspondence till date. So that the undersigned would be able to see herself the progress report of going on construction and thereafter as per your agreed plan would further be able to deposit the required amount accordingly.

In view of the above, your good self is requested to depute a responsible officer for apprising as on date construction position to the undersigned so that the needful amount will be deposited accordingly.

 

4.             The OPs on the other hand had however cancelled the allotment on the ground that further payment as was advised and required to be paid was not paid. The letter sent by the company is as under:-

This is in furtherance to our cancellation letter dated 24.05.2008 whereby we had informed you of the cancellation of the registration of your Residential Flat in TDI City Kundli. This was done by us on account of your default in the payment of the outstanding dues despite various reminders.

By way of the cancellation letter we had further informed you that our company has prepared a fund cheque for sum of Rs. 1,50,000.00/- being an amount equivalent to 50% of the amount paid as per the company policy. A copy of the refund cheque receive enclosed along with the cancellation letter and you were requested to come to our office and receive the same after surrendering the original allotment letter along with all original receipts issued to you without any delay.

However, despite the receipt of the cancellation letter till date, you have neither collected the cheque for the refund amount nor have surrendered the original receipts.

 

5.             Since the progress of the project was not brought home to the complainant and since the complainant on visiting the site found nothing there, she sought for the refund of the amount with 24% interest in terms of her letter dated 01.12.2012, the relevant extracts of which is as under:-

 

Inspite of my several requests and reminders, neither you have replied nor informed me for allotment of the same. Resulting mala fide intensions and illegal trade practices held at your end with your customers.

Now, I request you to refund my deposit amount of Rs. 3,00,000.00 along with the interest till date @ 24% p.a. immediately without making any further delay, otherwise I shall have none other option but to pursue the matter in court.

 

6.             The refund of the amount not having been done, this complaint was filed for the redressal of her grievances. OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground and on merit, stating inter alia that the complainant is only an investor and thus not a consumer and if that be the case she (the complainant) cannot raise a consumer dispute. Secondly the complainant has only deposited the booking amount and nothing more. Mere depositing the booking amount does not make the complainant as consumer. Infact the issue is recovery of amount for which civil suit is the only remedy. Finally the OPs have stated that the case is hit on the ground of limitation, this having been filed beyond the period as prescribed under the provisions of Section 24A of the Consumer Protection Act. On merit the OPs have denied the averments contained in the complaint and vehemently argued that the relief claimed in the facts and circumstances of the case is not admissible to the complainant.
7.             The complainant has filed rejoinder rebutting the contentions raised in the reply and reiterating the averments made in the complaint. Evidence by way of affidavit has also been filed. I have gone through the records of the case and given a careful consideration to the subject matter.
8.             Short question for adjudication in this complaint is whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986 and, if so, whether he is entitled for the refund as prayed for. It is admitted fact that the complainant had deposited the booking amount but as per record no formal allotment letter was ever issued. The legal question that arises in this complaint therefore is whether in the absence of any formal allotment issued to the complainant the complainant can be treated as consumer of the OP as then alone this commission would be able to deliberate on the prayer for the refund of the deposited amount.
9.             In Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, dealing with a person, who had applied for allotment, but to whom no allotment had been made, the Hon’ble Supreme Court, inter-alia held as under:

“Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company).  But certainly not before allotment.  At that stage, he is only a prospective investor (sic in) future goods.  The issue was yet to open on 27.04.1993.  There is not purchase of goods for a consideration, nor again could he be called the hirer of the services of the company for a consideration.  In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act.  The definition contemplates the pre-existence of a completed transaction of a sale and purchase.  If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act”.

 

10.             A similar question came up for consideration of the Hon’ble NCDRC in Revision Petition No.3649 of 2014 in the matter of Delhi Development Authority vs. Praveen Kumar which matter was decided by their Lordships on 29.1.2015.  In that case, the complainant had applied to Delhi Development Authority for allotment of the residential flat but no allotment was made to them.  Rather, they received a letter from the DDA, alleging violation of the terms and conditions of the Scheme by them and forfeiting a sum of Rs.1,50,000/- on account of the said breach.  Being aggrieved from the forfeiture, they approached the concerned District Forum by way of a complaint, impleading Delhi Development Authority as well as the bank to which the applications were submitted by them.  The District Forum having ruled in their favour, DDA approached the concerned State Commission by way of an appeal.  The said appeal also having been dismissed, the DDA approached the Hon’ble NCDRC by way of a revision petition.  Placing reliance upon the above referred decisions and allowing the revision petition, the Hon’ble NCDRC, inter-alia observed and held as under:

11.    The legal proposition which emerges from the above rendered decisions of the Hon’ble Supreme Court is that a person, who is allotted a flat or a plot to be developed by a statutory authority such as Delhi Development Authority or Avas Vikas Parishad as well as a person, who is registered with such an Authority for the purpose of allotment of such a flat/plot and is awaiting allotment would be a ‘consumer’ within the meaning of Section2 (1) (d) of the Consumer Protection Act, 1986.  If however, the flat/plot is sold by such a statutory authority by way of a public auction on ‘as is where is’ basis and such sale is not accompanied by an obligation to carry out any further development such as providing/augmenting infrastructural facilities viz. roads, sewerage, electricity, water facilities etc., the purchaser shall not be a ‘consumer’ within the meaning of Section 2(1)(d) of the said Act.

  13.    As far as a person who applies for allotment of a plot/flat is concerned, he will not be a ‘consumer’ within the meaning of Section 2(1) (d) of the Act, if neither any allotment is made to him nor he is registered for and awaiting such an allotment.  Such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing.  Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a ‘consumer’ as defined under Section 2(1) (d) of the said Act.

11.             The Hon’ble NCDRC in the matter of Delhi Development Authority vs. Krishan Lal, in First Appeal No. 486/2006 decided on 27.09.2011, is pleased to hold as under:-

 

The complainant/respondent had applied for allotment of a plot under Rohini Residential Scheme of DDA but no allotment was made to him for more than fifteen years. This Commission took the view that mere registration by a person in any scheme for allotment of plots or flats would not make such person a consumer within the meaning of Consumer Protection Act.

 

12.             The Hon’ble NCDRC in the matter of Yashwant Rai Puri vs. Bhatinda Development Authority and ors in RP/3193/2015 decided on 01.08.2016 held as under:-

 

 For the reasons stated hereinabove, I hold that since no allotment was made to the complainant, he did not hire or avail the services of the Bathinda Development Authority for housing construction, which is a service as defined in the Consumer Protection Act.  Consequently, he cannot be said to be a consumer of the said Authority.  Hence, no ground for interfering with the orders passed by the fora below is made out.  The revision petition is therefore, dismissed.  It is however, made clear that dismissal of the revision and the complaint shall not come in the way of the petitioner / complainant approaching a Forum other than a Consumer Forum for the redressal of his grievance.

 

13.             Having regard to the discussion done and the legal position explained I am of the considered view that the allotment letter not having been issued to the complainant, she did not avail the services of the OPs which means and to put it differently she cannot be said to be a consumer of the OPs. If that be the case she cannot raise the dispute before the consumer forum. In these circumstances the complaint cannot be allowed. Since the complaint is disposed of on the ground that the complainant is not a consumer, no other point raised in the complaint by either parties is deliberated upon.
14.             It is however made clear that disposal of the complaint by this Commission shall not come in the way of the complainant approaching a forum other than a consumer forum for the redressal of her grievances.
15.             Ordered accordingly. The complaint number C/295/2019 having identical facts is also disposed of on these lines, leaving the parties to bear the cost.
16.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
17.             Registrar of this Commission is requested to place on record of C-295/2019 certified copy of this order for records. Both the files be consigned to record.

 

(Anil Srivastava)​

Member