Delhi

StateCommission

CC/346/2015

SMT. ASSHISHA JINDAL - Complainant(s)

Versus

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

31 Oct 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :31.10.2018

Date of Decision : 12.11.2018

COMPLAINT NO.346/2015

In the matter of:

 

Smt. Aashisha Jindal,

W/o. ShriDeepak Jindal,

R/o. WZ 230, Mukherjee Nagar,

New Delhi-110018.                                                                                     …..Complainant

 

                                                Versus.                                  

 

1. M/s. TDI Infrastructure Ltd.,

(Formerly Intime Promoters Pvt. Ltd.)

TDI House, G-7, Ground Floor,

Connaught Place, Opp. Madras Hotel Block,

New Delhi-110001.

 

2. Shri Kamal Taneja,

Managing Director

M/s. TDI Infrastructure Ltd.,

9 Kasturba Gandhi Marg,

New Delhi-110001.

 

3. Shri D.N. Taneja,

Chairman,

M/s. TDI Infrastructure Ltd.,

9 Kasturba Gandhi Marg,

New Delhi-110001.                                             .…..Opposite Parties

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble 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

O.P. Gupta, Member (Judicial)

 

 

JUDGEMENT

 

1. The case presented by the complainant is that she booked one residential apartment  measuring 180 sq. yds. bearing no. Tower B-58/7, Ground Floor, T-Phase, Kundli My Floors. The OP assured to offer the allotment within six months  of application money. She deposited Rs.2,50,000/- by cheque dated 24.07.09. Thereafter she made various payments as mentioned in para-5 in the complaint totaling Rs.17,90,814/-. Value of the apartment was Rs.18,80,488.60 but OP increased the same to Rs.19,80,238.60. The OP assured that flat would be completed within 24 months and it would deliver possession within the said period. Complainant did not receive any communication from OP  regarding progress of construction. The OP failed to deliver the flat even after six years. Complainant visited the site, no construction was found appearing. She requested the OP to complete the apartment and deliver the possession or to refund her amount with interest @24% per annum which they are charging from the consumers. The OP made false promise to refund the amount with interest @18% per annum. Hence this complaint for directing the OP to refund the amount with interest @18% per annum from date of deposit till refund, compensation of Rs.10 lakhs, another sum of Rs.15,000/- per month from  July, 2011 onwards, Rs.11,000/- towards litigation expenses.
2. The OP filed WS raising preliminary objections that complaint is barred by limitation, last payment was made by the complainant on 08.01.13 and even if cause of action is calculated from the said date, complaint filed in May, 2015 is beyond two years. In preliminary submissions it pleaded that  complainant registered for allotment of residential built up floor at basic cost of Rs.2245.14 per sq. ft. and filed advance registration form  dated 24.07.09. She paid Rs.2,50,000/-. Sale consideration includes not only basic sale price of the flat but also other charges in the shape of EDC, IDC, PLC and other  misc. Charges. The payment plan chosen by the complainant was construction linked plan. The complainant was not a consumer but speculator who invested money with intent to make profit by selling the same. She made investment at the time when real estate  was booming. Due to sudden and sharp decline in the real estate prices due to global economic meltdown, complainant was unable to book the expected gains and therefore chose not to proceed  with the performance  of the agreed terms. On merit it did not deny booking of  Unit No.B-58/7 Kundli My Floors. It denied increase in the price. On 31.03.10- as soon as 3^rd instalment fell done, it issued demand letter requesting complainant to clear outstanding dues. On 30.09.11 at the time of start of construction of first floor, demand letter was issued requesting the complainant to clear fifth instalment. On 20.10.11 at the stage of start of construction of second floor, OP demanded complainant to make sixth instalment. Likewise on completion of brick work OP  vide demand letter dated 15.02.12, sent remainder  requesting the complainant demanding seventh instalment. It denied that it made assurances to refund the amount with the interest @18% per annum, it denied liability to pay compensation. It prayed for dismissal for the complaint.
3. Complainant filed rejoinder and evidence by affidavit.
4. The OP filed affidavit of Shri Paras Aora, AR. Both the parties filed written arguments.
5. We have gone through the material on record and heard the arguments. The counsel for the complainant submitted that complainant has made payment of about 95% of the sale consideration, booking was made in 2009, OP was to deliver possession by 2011, it failed to deliver possession till 2015 when the complaint was filed. Hence the OP is liable to refund the amount along with interest.
6. On the other hand the counsel for OP pressed the plea of limitation. We find that National Commission has repeatedly held that in case of failure of delivery of possession, cause of action is continuing and there is no limitation.
7. The counsel for OP submitted that flats were ready, above 300 families were residing, complainant is defaulter. However she failed to point out when the flat was completed. It did not plead even in written submission filed in 2016 that the flats were ready. Now after 9 years, complainant can not be compelled to take the flat.
8. It is no dispute by the OP that complainant make the payment till 2013. That is subsequent to all demand letters pleaded by OP, last letter being dated 15.02.12. Thus it can not be said that complainant is defaulter in making payment. Otherwise also she had paid about 95% of the sale consideration.
9. In view of the above position it is not necessary to go into the controversy whether the OP increased the sale price or not from Rs.18,80,488.60 to Rs.19,80,238.60.
10. To sum up we hold that the OP was deficient in fulfilling its terms. The complainant is entitled to refund of the amount. However the interest claimed by her @18% per annum is excessive. In the present scenario it would be reasonable to award interest @9% per annum. Accordingly the OP is directed to refund Rs.17,90,814/- alongwith interest @9% per annum from the respective dates of payment till the date of refund.
11. Copy of the order be sent to both the parties free of cost.
12. File be consigned to record room.

 

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                    

MEMBER                                               MEMBER (JUDICIAL)

 

 

 

 

 

 

 

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