Delhi

North East

CC/52/2020

Ms. Manju Gupta - Complainant(s)

Versus

M/s Vardhman Estates And Developers Pvd. Ltd. - Opp.Party(s)

02 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.52/20

 

In the matter of:

 

	Mrs. Manju Gupta Dr. Rakesh Gupta R/o B-8/F-2, B-Block Dilshad Garden, Delhi-110095	Complainant
	Versus
	Vardhman Estates and Developers Pvt. Ltd. At: 2211, 2nd floor, plot No. 58, Block C, Shahpuri Tirath Singh Tower, DDA Community Centre, Janakpuri, New Delhi-1100058 Through its Director	Opposite Party

 

 

DATE OF INSTITUTION: JUDGMENT RESERVED ON: DATE OF ORDER:

22.10.2020 11.10.2022 02.01.2023

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

 

                                                                    ORDER

     Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 35 of the Consumer protection Act, 2019.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Opposite Party circulated an advertisement in newspaper that they are going to develop a township in the name of Vardhman’s Divine Valley at Plot no. 26/1, Knowledge Park-III, Greater Noida, Uttar Pradesh. The Complainant stated that she had visited the office of Opposite Party and showed interest in purchasing a flat after enquiries the Opposite Party informed that the cost of that the Complainant intended to buy is Rs. 23,65,000/- and size of the said flat in 550 sq ft. The Opposite Party assured the Complainant that she will get the possession of flat within three years from the singing of the builder buyer agreement and she will get a monthly return of Rs. 24,750/- from the signing of the agreement. The Complainant submitted that on believing the false assurances given by Opposite Party she booked a flat in the tower namely “vedic suits”. The Complainant signed the application for booking of the flat on 21.11.12 and immediately made a payment of Rs. 27,810/- as booking amount vide cheque bearing no. 400932 dated 23.11.12 drawn at Bank of Baroda, Nawada Branch, Delhi. The Opposite Party starts ignoring the request of Complainant to sign builder buyer agreement and requested her to made the remaining payment. On the request of Opposite Party,the Complainant made a payment of Rs. 9,00,000/- vide RTGS dated 18.01.13 and again made payment of Rs. 3,50,015/- vide cheque bearing no. 000001 dated 15.05.13drawn at Bank of Baroda, Nawada Branch, Delhi. The builder buyer agreement is signed on 05.06.13 between the parties and Complainant was allotted flat no. 817 at 8^th floor in vedic suits. The Complainant stated that she had made a payment of Rs. 14,16,250/- for agreement and the remaining of Rs. 9,48,750/- is to be paid in cash and no receipt will be acknowledged to the Complainant. The officials of Opposite Party told the Complainant that she will get the assured monthly return of Rs. 24,750/- and the same was handed over to her over monthly post-dated cheques from month of June 2013 to May 2016 of Rs. 22,275/- after deducting TDS. The Complainant stated that two cheques of Rs. 22,275/- bearing no. 45599 and 45600 were dishonoured due to reason “funds insufficient” and also other cheques were dishonoured and then the Opposite Party issued 3 cheques bearing no. 385977, 385978, 385979 for an amount of Rs. 66,825/- and those cheques were also dishonoured. The Complainant paid the agreed amount of Rs. 9,78,750/- and the remaining outstanding amount of Rs.1,38,425/- in cash and no receipt was issued to the Complainant for the same. The Complainant stated that the development at the project was very slow and they informed the Opposite Party about the same and Opposite Party gave lame excuses about the slow pace of development. The Complainant stated that after booking the said flat, the construction on the site was completely stopped and after the date of delivery i.e. May 16 the Opposite Party stopped picking the phone of Complainant. The Complainant had made a payment of Rs. 23,65,000/- but still she did not get the possession of the flat. The Complainant send a legal notice to Opposite Party on 03.12.19. The Complainant stated that she had made the entire payment and she did not get the possession of the flat even after expiry of the said date given by Opposite Party. Hence, this shows deficiency on the part of Opposite Party. Complainant has prayed for Rs. 23,65,000/- for purchasing of the above alleged flat along with an interest of 18% p.a. from the date on which the delivery of the above alleged flati.e. May 2016 till the pendency of the present complaint and Rs. 3,46,500/- as the same was promised by the Opposite Party to the Complainant towards the assured monthly returns. She has also prayed for Rs. 10,00,000/- on account of mental harassment and litigation expenses.

Case of the Opposite Party

2. The Opposite Party contested the case and filed written statement.  It is stated by the Opposite Party that the present complaint has been filed by the Complainant under section 12 of the Consumer Protection Act. 1986. It is pertinent to note by this Hon’ble Commission that the complaint shall be filed under section 34 of the Consumer Protection Act, 2020 (as amended up to date) as per the new passed act. Once the new act is notified on 20^thJuly 2020 by the central government post accent of Hon’ble President of India, the using of old provision can’t pass on merit on pedestal of justice. The sole intention of passing of this amended act will be defeated. Hence, this complaint is not maintainable.
3. Furthermore, the booked unit is a commercial investment in the project of Opposite Party plethora of judgments by Hon’ble State Commission as far as the “Assured Return” is considered, are not maintainable before the Consumer forum. It is further submitted that the booked unit is “Vedic Suites”, a commercial space in Opposite Party’s upcoming project Vardhman Divine i-Valley, which clarifies that the unit is not booked for personal use rather for generating source of fixed income as future investment. The loss in investment is not a “breach of services” as per Consumer Protection Act duly held by Hon’ble State Commission in an identical matter filed against the Opposite Party herein, titled as “Ram  IkbalRai Vs. M/s Vardhman Estate  Developers Pvt. Ltd. & Anr”.Complaint No. 04/22/2019, decided on 31.01.17. The true copy of the judgement is annexed. Hence, this complaint is not maintainable on the ground of parity.
4. That further, it is an admitted case of the Complainant that he had purchased a commercial space by the Opposite Party. Further, it is the case of the Complainant himself that he had receiving an assured return against the said property.In view of this the present complaint needs to be dismissed.
5. That the Complainant herein is not a “Consumer” as defined under the Consumer Protection Act and it is further submitted that there are no consumer disputes pending between the parties. It is submitted that there is not alleged deficiency in service committed by the Opposite Party. It is submitted that admittedly the Complainant invested the amount and earned considerable amount of money from the Opposite Party from the date of booking onwards in the nature of assured returns.
6. That the complainant has falsely alleged that there has been no construction activity at the site. Since the price of the booked unit has not appreciated with the expected rate of the Complainant on account of the severe recession in the real estate market, the Complainant with a view to seek the refund of the amount and further with a view to avoid further investment for the said booking concocted allegations. It is submitted that there has been no intentional deficiency of service from the part of Opposite Party. This is the reason of force majeure which has been duly accepted by the Complainant while signing the document. It is furthersubmitted that the Complainant herein has simply invested the amount and is an investor and on account of severe downtrend in the real estate market, the Complainant is trying to wriggle out from their contractual obligations and further trying to pull out his investment from the project anticipating longer recession and downtrend in the market. In the entire complaint and in the earlier notice, the Complainant has not stated that he has booked the units for personal use furthermore she has not even provided an affidavit before this Hon’ble court about the no. of bookings he has made in different projects and amount of money invested by her to show with their bank accounts statement that she is not an investor. The Complainant herein is misusing the provisions of the Consumer Protection Act to his advantage by filing the present complaint case by intentionally twisting and distorting the real facts.
7. That the complaint of the Complainant is not maintainable and is barred by law of limitation. It is also brought to the notice before this Hon’ble Commission that the unit was booked in June, 2013 and it is the own case of the Complainant that it was to be ready for possession by May, 2016.
8. That the complaint has rightfully annexed and asserted in the Builder Buyer Agreement Annexure D of the complaint that she has only paid Rs. 12,37,500/- in totality, whereas she is claiming to pay the Opposite Party to the tune of Rs. 23,65,000/- with assured return which is arbitrary and exhortatory demand in itself. Without payment towards her investment in project she has been filing complaints against the Opposite Party towards the project and assured return is abysmal kind of argument and litigation. It is humbly submitted that the complaint should be dismissed with cost

Rejoinder to the written statement of Opposite Party

9. The Complainant filed rejoinder to the written statements of Opposite Party wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint.

Evidence of the Complainant

10. The Complainant in support of her complaint filed her affidavit wherein she has supported the averments made in the complaint.

 

 

Arguments & Conclusion

11. We have heard the Complainant. We have also perused the file and the written arguments filed by the Complainant. With regard to Opposite Party’s argument that the present complaint has been filed by the Complainant under section 12 of the Consumer Protection Act. 1986, and the using of old provision can’t pass on merit on pedestal of justice. The sole intention of passing of this amended act will be defeated. Hence, this complaint is not maintainable, as per the record of the case present complaint was filed under Section 35 of the Consumer Protection Act 2019 on 22.10.20 and admitted of Section 36(2) of the Consumer Protection Act, 2019 on 09.11.2020.
12.  The case of the Complainant is that she has booked a flat in the project of Opposite Party namely Divine Valley at Plot no. 26/1, Knowledge Park-III, Greater Noida, Uttar Pradesh. The Complainant signed the application for booking of flat on 21.11.12 and immediately made a payment of Rs. 27,810/- as booking amount. On the request of Opposite Party, Complainant made a payment of Rs. 9,00,000/- on 18.01.13 and again made payment of Rs. 3,50,015/- on 15.05.13. The Builder Buyer agreement is signed on 05.06.13 between the parties and Complainant was allotted flat no. 817 at 5^th floor in the Vedic Suits. The Complainant stated that she had made payment of Rs. 14,16,250/- for agreement and remaining of Rs. 9,48,750/- was paid in cash and no receipt was issued by Opposite Party for the same.
13. It is further stated by the Complainant that Opposite Party told the Complainant that she will get the assured monthly return of Rs. 24,750/- and same was handed over to her over monthly postdated cheque for the month of June 13 and May 16 of Rs. 22,275/- after deducting TDS. The Complainant stated that two cheques of Rs. 22,275/- were dishonoured due to the reason “fund insufficient” and other cheques were also dishonoured. The Complainant stated that the development at the project was very slow and construction on the site completely stopped and after the promise date of delivery i.e. May 16 the Opposite Party stopped picking the phone of the Complainant. The Complainant had made payment of Rs. 23,65,000/- but still she did not get the possession of the flat. The Complainant stated that she had made the entire payment and she did not get the possession of the flat even after the expiry of the date given by the Opposite Party, hence this shows deficiency on the part of Opposite Party.
14. The case of the Opposite Party is that Complainant booked Unit is a commercial investment in the project of Opposite Party, and there arevarious judgments of the Hon’ble State Commission as far as assured return is concerned, are not maintainable before the consumer forum.
15. It is further submitted by the Opposite Party that unit booked in the Opposite Party project was commercial space and not for personal use rather for generating source of  fixed income as future investment. The loss in investment is not a “breach of services”as per Consumer Protection Act duly held by Hon’ble State Commission in an identical matter filed against the Opposite Party, title as “Ram Ikbal Rai Vs. M/s Vardhman Estate & Developers Pvt. Ltd. & Anr. So, Complainant herein is not a consumer as defined under Consumer Protection Act and there is no consumer dispute is pending between the parties and there is no alleged deficiency in service committed by the Opposite Party.
16. It is further submitted by the Opposite Party that the Builder Buyer Agreement signed by the Complainant and Complainant has paid only Rs. 12,37,500/- in totality and not Rs. 23,65,000/- as alleged by the Complainant.
17. As per Builder Buyer Agreement signed between the parties, Complainant booked a unit measuring 550 sq. ft in the said project for a basic sale price of Rs. 2,250/- per sq. ft. of super area. The total Basic Sale Price (BSP) is arrived by multiplying the super area and the BSP of the opted unit is comes to Rs. 12,37,500/- plus tax. The intending buyer agrees to pay the total BSP along with the other charges, total consideration is comes to Rs. 14,16,250/-. As per Para 1.6 of the Builder Buyer Agreement the Complainant has paid a sum of Rs. 12,77,825/- including tax in discharge part of the total consideration. As per Para 1.7 of the Builder Buyer Agreement, Complainant has agreed to pay the applies of the total consideration i.e. Rs. 1,78,750/- on the offer of possession. It is further mentioned in the Para 1.6 of the Builder Buyer Agreement, the developer agrees to pay sum of Rs. 24,750/- per month till the date of possession or May 2016 whichever is later and issued PDC towards the same. However, in the case of possession unit is handed over prior to May 2016 then Complainant shall have no right over the monthly payment after the date of possession and Complainant agrees to return unpresented PDC’s back to the developer. As per Para 1.9 of the Builder Buyer Agreement, it is agrees by the developer that he shall complete the construction of the unit on or before May 2016 in all respects and shall render the unit for occupation and possession, unless the construction is stopped for delayed on account of factors beyond the control of developer, as stipulated in the later part of this agreement.
18. Hon’ble State Commission in the matter of Ram Ikbal Rai Vs. Sheela Rai dated 31.01.17 held that complaint is dismissed in limini.
19. The facts of this case are not identical to the case decided by the Hon’ble State Commission in the matter of “Ram Ikbal Rai Vs. Sheela Rai”. As in the case of “Ram Ikbal Rai Vs. Sheela Rai” Opposite Party agree to pay guaranteed lease for 12 years. In this case, as per Builder Buyer Agreement developer agree to pay guaranteed amount per month till the date of possession and there were no mentioning of any further guaranteed lease of the said unit. Opposite Party failed to produce any document regarding completion of the project and handing over the said unit to the Complainant by May 2016 as agreed in the Builder Buyer Agreement.
20. Complainant has not produce any document in the complaint or during evidence about payment of Rs. 23,65,000/-. As per the document submitted by the Complainant she had made payment of only Rs. 12,77,825/- which is also admitted by the Opposite Party and Rs. 3,46,500/- was due to Complainant  on account of assured monthly return as per Para 1.6 of Builder Buyer Agreement.
21.  In view of the above discussion, there is deficiency in service on the part of Opposite Party. Complaint is allowed. Opposite Party is directed to pay a sum of Rs. 16,24,325/-( Rs. 12,77,825/- + Rs. 3,46,500/-)to the Complainant along with interest @ 6 % p.a. from the date of filing the complaint till recovery. Opposite Party is also directed to pay Rs. 50,000/- to the Complainant on account of metal harassment and litigation charges along with interest @ 6 % p.a. from the date of this order till recovery.
22. Order announced on 02.01.2023.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Surinder Kumar Sharma) President