Countrywide Promoters Private Limited 28, ECE House, 1st Floor, Kasturba Gandhi Marg,
New Delhi-110001 ....Opposite Parties
Quorum:
Ms. Poonam Chaudhry, President
Shri Bariq Ahmad, Member
Shri Shekhar Chandra, Member
Date of Institution:-17.09.2021
Order Reserved on:28.07.2023
Date of Order :- 10.08.2023
ORDER
POONAM CHAUDHRY, PRESIDENT
- The present complaint has been filed by complainant under Section 34 of the Consumer Protection Act, 2019 (in short CP Act) against Opposite Parties (in short OP) alleging deficiency of services.
- Briefly stated the facts of the case are that the complainant being allured by the offer of OP booked a unit in the project of OP namely “Omega Project” and was allotted unit no. CLS-12-GF. It is further stated that a floor buyer agreement was executed between the parties dated 16.11.2010. The payments were to be made according to the construction linked plan. It is further stated according to the floor buyer agreement payment was to be given within 24 months from the date of execution of agreement. OP however failed to do so. It is further alleged that complainant paid Rs.41,46,966.80/- (Rupees Forty One Lakh Forty Six Thousand Nine Hundred Sixty Six and Eighty Paisa) out of the total consideration of Rs.46,86,645/- (Rupees Forty Six Lakh Eighty Six Thousand Six Hundred Forty Five).
- It is prayed that OP be directed to refund a sum of Rs.41,46,966.80/- (Rupees Forty One Lakh Forty Six Thousand Nine Hundred Sixty Six and Eighty Paisa) with interest @ 18% per annum as well of Rs.10,00,000/- (Rupees Ten Lakh) toward compensation for mental agony and harassment and Rs.5,00,000/- (Rupees Five Lakh) towards cost of litigation.
- Notice of the complaint was issued to OP, pursuant to which OP entered appearance and filed written statement contesting the complaint on various grounds inter alia that complaint was not maintainable for misjoinder of parties.
- It was further stated that complainants were not consumers as they had invested in the project for earning profit by resale of the unit. It was also stated that the floor buyer agreement contained an Arbitration Clause as such the dispute between the parties, if any was to be referred to Arbitration. It was further stated that complaint is barred by limitation and as complicated question of facts arise, the same cannot be decided/adjudicated in the summary trial.
- It was also alleged that timely payment was the essence of the agreement. It was also stated that there was no deficiency on part of OP. It was also stated that the delay in handover possession was due to force majeure circumstance as contained in the Floor buyer agreement.
- It was further stated that construction of project in question was delayed as approval had to be taken from the DTCP Haryana the statutory body for approval of real estate projects. The building plan were withheld by DTCP, Haryana. It was also stated that possession was offered to complainant but they did not clear the dues and accept the possession. It is prayed that the complaint be dismissed.
- Despite several opportunities being granted, complainant did not file its evidence, in view thereof the opportunity to file CE was closed vide order dated 06.06.2023.
- Heard.
- Complainant has file the present complaint alleging deficiency in service but no evidence was led by complainant to the onus of proof that there was deficiency in service was on the complainant, after complainant was able to discharge its initial onus the burden would shift on OP.
- It has been held by Hon’ble Supreme Court in Civil appeal no. 5759/2009 SGS India Ltd. Vs. Dolphin international decided on 06.10.2021 that the initial burden of proof of deficiency in service was on complainant. The burden would not shift on OP. The relevant extract of judgement is as under:
It is also to be noted that Hon’ble Supreme Court also held in Indigo Airlines Vs. Kalpana Rani Debbarma and others (2020) 9 SCC 424 that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the compliant. Further held:-
“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondent. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produced any evidence. in law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
- For the foregoing reasons we are of the view that complainant failed to prove that there was deficiency of service on part of OP. the complaint stands dismissed. No order as to costs.
A copy of this order be sent/provided to all the parties free of cost.
The order be uploaded on the website of this Commission.
File be consigned to record room along with a copy of the order.
Poonam Chaudhry
(President)
Bariq Ahmad Shekhar Chandra
(Member) (Member)
