Delhi

North

CC/4/2021

SANGITA KUMARI - Complainant(s)

Versus

M/S. JAYDEV INFRATEC PVT. LTD. - Opp.Party(s)

RAVI KUMAR

16 Jan 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No. 04/2021

In the matter of

Smt.Sangita Kumari

W/o Shri Rajeev Ranjan Kumar

R/o 25/418, Laxmi Vihar

Near Bhuteshwar Dham Mandir

Burari, Delhi-110084                                                                                        ...Complainant

                                                                        v/s

M/s. Jaydev Infratec Pvt.Ltd.

Through its managing Director/Principal Officer

Having  its registered office at:

UGF-10, Ist floor, Omaxe Arcade , Sector Omega, Near Pari Chowk

Greater Noida, U.P.-201308                                                                         ... Opposite party-1

                                                                                   

Mr. Ashok Kumar (Managing Director)

Head office  at :

UGF-10, Ist floor, Omaxe Arcade , Sector Omega, Near Pari Chowk

Greater Noida, U.P.-201308                                                                       ... Opposite  party-2

 

ORDER

          16/01/2024

Ms.Harpreet Kaur Charya, Member

1. The present complaint has been filed by Smt Sangita Kumari, the Complainant against M/s Jaydev Infratec Pvt. Ltd. as OP-1 and Mr. Ashok Kumar as Managing Director as OP-2 with the allegations of deficiency in services. 
2. Briefly stated facts of the present complaint are that, the complainant, a small entrepreneur wanted to invest in property to enhance her financial status and earnings was contacted by OP-2 with lucrative offers of return through property investment.  Being convinced the complainant invested in the project floated by the OP and was allotted flat/retail space bearing no.D-107 (A) in Tower-D @ Rs.4,379.31 per sq.ft.  measuring 290 sq.ft.
3. The total sale consideration of Rs.12,70,000/- apart from EEC+FFC Rs.29,000/-, EDC +IDC Rs.29,000/-, power backup Rs.25,000/-, lease rent Rs.7250/-, club membership Rs.50,000/- , Car parking Rs.2,00,000/-. Thus, total of Rs.16,10,250/- besides taxes were to be paid by the complainant.
4. It has been stated by the complainant that she was also assured return of 12% p.a. on her investment alongwith the possession of the flat during 2017 itself.  The complainant made a payment as follows:-

S.No.	Amount paid	Date of payment
	Rs. 4,00,000/-	22/03/2015
	Rs.2,00,000/-	25/03/2015
	Rs.3,05,000/-	05/05/2015

5. The complainant has alleged that OP neither executed MoU despite receiving 50% of the consideration nor paid assured return of 12% on the amount deposited.  On 03/02/2016, MoU was prepared and complainant further paid Rs.2,00,000/- on 10/02/2016 through cheque and Rs.2,00,000/- on 11/02/2016.  An amount of Rs.99,550/- was adjusted on 11/02/2016 for the payment of assured return.  The complainant was again assured that the possession shall be delivered by the end of December 2017, however, at the time of signing of the MoU, the complainant was informed that as the MoU was being signed in 2017, and the possession will be given in December, 2018.
6. The complainant has further alleged that OP instead of delivering the possession, pressurised the complainant to pay Rs.4,00,000/- with the assurance that excess, if any, shall be refunded at the time of delivery of possession. On 07/05/2016, a sum of Rs.4,00,000/- was deposited by the complainant.
7. Despite several requests, the OP not only failed to deliver the possession but also did not complete the construction. The delay in handing over the possession has caused financial and health problem to the complainant.  The complainant has prayed for directions to OP-1 and OP-2 to jointly and severally refund Rs.18,04,550/- paid by  her alongwith interest @18% p.a.; compensation of Rs.15,00,000/-on account of mental agony, torture and harassment;  Rs.75,000/- being the actual cost incurred by the complainant for repeatedly visiting the office of OPs and obtaining legal opinion; pendent lite and future interest @18% p.a. from the date of promised delivery of possession till final realization and cost of proceedings in the favour of complainant and against OP-1 and OP-2.
8. The complainant has annexed copy of Voter I card; copy of memorandum of understanding; copy of 02 receipts  dated 22/03/2015 of Rs.2,00,000/- each; copy of 02 receipts of Rs.1,00,000/- each  dated 25/03/2015; copy of receipt dated 05/05/2015 Rs. Rs.3,05,000/-; copy of 02 receipts dated 11/02/2016, for Rs.2,00,000 each; copy of receipt dated 11/02/2016 for adjustment of assured return amounting to Rs.99,550/-; receipt dated 07/05/2016 for Rs.4,00,000/-.
9. Notice of the present complaint was served to OP-1 and OP-2. However, none appeared on behalf of OP-1 and OP-2 despite service nor any reply was filed.  Hence, they were proceeded ex-parte vide order 30/11/2021.
10. Ex-parte evidence was filed by the complainant where the contents of the complaint have been reaffirmed.  The complainant has relied upon the documents annexed with the complaint and has got them exhibited.  She has got exhibited copy of Voter I card as Ex.CW-1/1; copy of memorandum of understanding as Ex.CW-1/2; copy of 02 receipts  dated 22/03/2015 of Rs.2,00,000/- each as Ex.CW-1/3 and Ex.CW-1/4; copy of 02 receipts of Rs.1,00,000/- each  dated 25/03/2015 Ex.CW-1/5 and Ex.CW-1/6; copy of receipt dated 05/05/2015 Rs. Rs.3,05,000/- as Ex.CW-1/7; copy of 02 receipts dated 11/02/2016, for Rs.2,00,000 each Ex.CW-1/8 and Ex.CW-1/9; copy of receipt dated 11/02/2016 for adjustment of assured return amounting to Rs.99,550/- as Ex.CW-1/10; receipt dated 07/05/2016 for Rs.4,00,000/- as  Ex.CW-1/11.
11. We have heard the arguments on behalf of the Ld. Counsel for the complainant and have perused the material placed on record.
12. First and foremost deciding upon the issue that whether the complainant is a consumer.  In para 2 and 3 of the complaint it has been stated that the complainant had invested in the project of OP to enhance her financial status and earnings and for returns through property investment.  It has been held by Hon’ble NCDRC in the matter of “Kavit Ahuja vs Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors.” I (2016) CPJ 31 (NC) that :-

6. Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures, etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house(s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house(s).

7.  Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity.
8.  As observed by the Hon’ble Supreme Court in Laxmi Engineering Works (supra), what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case and it is not the value of the goods that matters but the purpose for which the goods brought are put to. The same would be equally applicable to for hiring or availing services.

 

13. Therefore, in the light of above judgement, the complainant is a consumer. As OP has been proceeded ex-parte, the contents of the complaint and affirmation made by the complainant have remained unrebutted. 
14. The complainant has placed on record the receipts of different dates ( Ex.CW-1/3 to Ex.CW-1/11) in support of her claim, that she has paid total amount of Rs.18,04,550/- including Rs.99,550/- adjusted towards the assured returns.  Thus, the complainant has successfully proved that she has performed her part of contract by paying the full sale consideration.
15. As per Clause 28 of the Memorandum of Understanding (Ex.CW-1/2) dated 13/02/2016, the possession of the proposed space was to be delivered till December 2018.  The date of institution of present complaint is 06/01/2021.  Thus, OP has failed to handover the possession to the complainant even after the lapse of 02 years. This delay in handing over the possession despite receiving the amount more than the total sale consideration definitely amounts to deficiency in service and unfair trade practice. This act/omission on the part of OPs has caused mental agony and deprived the complainant from the enjoyment of her money.
16. Therefore, in the facts and circumstance of the present complaint, we direct OP-1 to:-

1. Refund Rs.18,04,550/-, ( Rs. 17,05,000/- actually paid by the complainant + Rs.99,500/- adjusted by OP on account of assured return)being total amount paid by the complainant.
2. Pay interest @9% p.a. from the date of each deposit till realization.
3. Pay compensation of Rs.50,000/- on account of mental harassment and agony, inclusive of litigation expenses.

The order be complied within 30 days from the date of receipt of this order.  In case of non-compliance, OP-1 shall be liable to pay interest @12% per annum on (a+c)   from the date of order till realisation.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

(Harpreet Kaur Charya)                Member	(Divya Jyoti Jaipuriar)                                                       President