Delhi

New Delhi

CC/349/2022

MR. R. RAMESH - Complainant(s)

Versus

M/S. M3M INDIA PRIVATE LIMITD. - Opp.Party(s)

05 Jun 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002

Case No.349/2022

IN THE MATTER OF:

                                               

1. Mr. R. Ramesh

Son of Mr. K. Rangaswamy

C/o Indra Place, Connaught Place

New Delhi 110001.

2. Mrs. S. Sneha Latha

W/o Mr. V. Siva Kumar

Resident of House No. 33/1, Emilia A1 Vatika City

Sector-49, Sohna Road, Gurgaon-122011.

3. Mr. V. Siva Kumar

S/o T.K. Venkitaswamy,

Resident of House No. 33/, Emilia A1 Vatika City

       Gurgaon-122011

                                                                                                                                                                                   …......Complainants

Versus

M/s M3M India Private Limited

(Erstwhile M/s M3M India Limited

and most erstwhile M3M India Developers Limited)

 

Corporate Office:

Paras Twin Towers,

6^th  Floor, Tower-B, Sector-54,

Golf Course Road, Gurgaon-122002, Haryana.

Through its Chairman cum Managing Director                        

....Opposite Party

Quorum:

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

 

                                               

                                                                   Date of Institution: 23.12.2022

Date of Order       : 05.06.2023

 

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

 

1. The present complainant has been filed under Section 34 of Consumer Protection Act, 2019 (in short CP Act) against the Opposite Party (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case that the Complainant are a "Consumer" as defined in the CP Act. The Complainants seek redressal of the grievances for deficiency in services, unfair trade practices and failure of services against the OP.
3. It is further alleged that Complainants jointly booked a residential apartment in M3M Woodshire, Sector-107, Dwarka Expressway, Gurgaon for their residential purpose i.e. two bedroom plus study Apartment no. 903, Floor 9, Tower B-09 super area 1534 sq. feet for a total consideration of Rs.98,51,554/- (Rs. Ninety Eight Lakhs Fifty One Thousand Five Hundred Fifty Four only) which included basic sale price of Rs.82,06,000/- plus DC, Club Membership, IFMS, Car Parking and PLC charges paid a sum of Rs.16,92,099/- towards the cost of the residential apartment vide application dated 03.12.2012.
4. It is further alleged that the provisional allotment letter was issued to Complainants jointly under the signatures of authorized signatory and 20% of the basic price was paid  by Complainants to the OP from August, 2012 to February. However, no Apartment Buyers' Agreement was executed between the parties and the only documents which were executed by the Complainants were application form for allotment for provisional booking vide which complainants were entitled to claim refund from the company without any deduction on account.
5. It is also alleged the OP cancelled the said booking vide cancellation letter of July, 2014 without returning the aforesaid amount of Rs.16,92,099/-. It is stated that since no money was paid with the cancellation notice hence, cancellation is not tenable under the law. It is also stated the time again said money was demand however, no money was returned to complainants jointly nor any interest thereon was paid to complainants.
6. It is also stated the apartment allotted to complainants jointly has been resold by the OP. The Hon’ble Apex Court has held in such cases that OP has to return the sale price or consideration amount paid by the complainant. It is also alleged that no Flat Buyer agreement was executed between the parties that the application form does not contain any covenant regarding cancellation.
7. Thus  as such the OP is liable to refund the money of Rs.16,92,099/- with interest @ 18 % p.a. It is also alleged the cause of action to file the present complaint first arose when the payments qua the residential property at Dwarka was given and pursuant to which payment of Rs.16,92,099/- was paid by the complainants to the OP. The cause of action further arose when the defendant Company did not enter into any agreement qua the said booking and unilaterally cancelled  the same and the cause of action is still subsisting and continuing one as the forfeited amount is still not refunded.
8. It is further alleged that the complaint is within limitation inasmuch as no refund till date has been processed by the OP and even no interest has been paid on the said booking. Even if it is presumed that booking stands cancelled even then the OP is liable to refund the amount deducting towards earnest money which has not been done, the complainant is entitled for refund. Hence the complainant of the still is within limitation. It is also stated that the valuation for the purpose of court fee is Rs.16,92,099/- on which a requisite court fee is affixed.
9. It is also alleged the present complaint is filed by the complainants who are consumers  as per the CP Act. This Commission has the jurisdiction in as much as payment made to OP is less than Rs.50 Lacs hence the Commission has having the jurisdiction to try and entertain the present complaint.
10. It is prayed that OP be directed to refund the amount of Rs.16,92,099/-  (Rupees Sixteen Lakh Ninety Two Thousand Ninety Nine) paid by complainants on various dates together with 18% p.a. interest. OP be also directed to pay Compensation of Rs.1,00,000/- for causing mental agony and harassment to the complainants and cost of litigation.
11. Notice of the complaint was issued to OP, upon which OP entered appearance and filed written statement taking preliminary objections that the complainant is not filed by a ‘consumer’ and as such it cannot be entertained. It is also submitted that the complainants are unrelated parties who had purchased the apartment for commercial gain for investment.
12. It was also stated that the complainants suppressed a material fact that the complainants had file a civil suit in Saket district court before the Ld. Court of Ms. Neelofer Abida Perveen numbered as CS No. 11630/16 titled as V. Siva Kumar Vs. M/s M3M India Private Limited,  praying for refund of the amount deposited by them. The OP preferred an application under Order 7 Rule 11. The application of the OP was allowed and the plaint was returned vide order dated 24.11.2018 and the complainant was directed to present the plaint before court of appropriate jurisdiction.
13. It was also alleged that this Commission does not have the jurisdiction as the complainants, under the garb of the complainant is seeking the modification of the terms of the Agreement. It is also alleged that there is no cause of action.
14. On merits it was stated that complaint is barred by the law of limitation, cause of action arose, if any, on 15.07.2014 i.e. when the complainants were issued cancellation letter by the OP. Section 69 of the CP Act, 2019 is pari materia to Section 24A of the CP Act, 1986. Both provide a time period of 2 years for the aggrieved consumer to approach the relevant consumer forum. The period of two years expired on 15.07.2016. It was also alleged that there was no deficiency in service of unfair trade practice on part of the OP.
15. It was denied that the complainants booked a residential apartment in M3M Woodshire for their residential purposes. It was submitted that the complainants had applied for allotment of an apartment by filing and depositing an Application Form for the booking of an apartment in M3M Woodshire.  Apartment bearing MW TW-B09/0903 (herein after referred to as ‘Apartment’) admeasuring 1534 sq. ft. in M3M Woodshire a Group Housing Colony for a total sale consideration of Rs.98,51,554/- plus taxes and other charges was provisionally allotted to the complainants vide allotment letter dated 23.02.2013.
16. It was denied that since no money was paid with the cancellation notice, hence the cancellation is not tenable in law. It was alleged that the complainants are chronic defaulters and have defaulted in making timely payments on various occasions. It was submitted that on account willful  breach of terms of the allotment, the OP was constrained to cancel the allotment of the complainants vide cancellation letter dated 15.07.2014. It was also submitted that the cancellation and the forfeiture of the earnest money was done in accordance with the agreed terms and conditions between the parties. It was denied that the time and again money was demand however no money was paid by complainants rather kept silence on the same. It was submitted that the complainants were informed vide termination letter dated 15.07.2014 that the OP did not owe any dues to the complainants. It was stated in view of Clause 18, OP  was within its right to terminate the allotment due to non-payment by deducting the the earnest money.
17. Complainant file rejoinder reiterating therein the averments made in the complainant. Both parties filed their evidence by affidavit.
18. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
19. An application has been filed for dismissal of complainant which will also be decided vide this order/judgment. The averments made in the said application  are that complaint is barred by limitation.
20. As regard the said objection, it is to be noted that Section 69 of the Consumer Protection Act, 2019 which relates to period of limitation provides as under:

1. “The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
2. Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
3. Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

 

21.  We are of the view in the present case as the amount paid by complaint has not been refunded, the cause of action is a continuing one and complaint is within the period of limitation.
22. The fact that complainants booked a  apartment in the project of OP is an admitted case as evident from the evidence of the parties. The complainants had relied upon receipt of payment Rs.16,92,099/-  (Rupees Sixteen Lakh Ninety Two Thousand Ninety Nine).
23. It was contended on the behalf of the complainants that OP was deficient in providing its services. It was also contended that complainant had paid Rs.16,92,099/-  (Rupees Sixteen Lakh Ninety Two Thousand Ninety Nine)  to the OP but OP failed to hand over the possession of the property despite the allotment letter dated 03.12.2012, neither any agreement was executed. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was alleged that OP cancelled the booking vide cancellation letter without returning the amount paid by complainants. It was also argued complainants are entitled to refund of the booking amount without any deduction.  As regard deficiency in services, Hon’ble Supreme Court has held in Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
24. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
25. On the other hand it was submitted on behalf of the OP that the complainants were informed vide letter 15.07.2014 of the cancellation of allotted unit for want of payment of outstanding amount. On the other hand counsel for complainants alleged that the cancellation of unit was arbitrary and illegal, it was also denied that complainant failed to adhere to the payment schedule.  It was also argued on behalf of OP that the complainants have not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, 2019 which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
26. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view the cancellation of unit was arbitrary and illegal to sell it to someone else at higher rates or for other extraneous reasons, the reply of OP doesnot indicate the present status of the flat/unit.
27. It is to be noted Section 2 (47) of the Consumer Protection Act, 2019, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
28. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainant was justifiedin claiming refund of the amount deposited by him with compensation.

29. We are further of the view that the cause of action being the continuing one as the amount advanced by complainants was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
30. As regards the contention of OP that complaint is not maintainable, the complainant ought to have filed a civil suit. In this regard to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 M/s Imperia Structures Limited Vs. Anil Patni and Anr.

31. As regards the objection taken by OP that complainants are not a  consumer within the meaning of Consumer Protection Act. we are of the view that no evidence was brought on record by OP to show that Complainant booked the plot for business in real estate. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject for the purpose of making profit.” Thus as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
32. We thus, hold that OP/M/s M3M India Private Limited guilty of deficiency in services and unfair trade practices. The OP has acted in an arbitrary manner with  a bonafide willing purchasers with ready money. We accordingly direct OP/M/s M3M India Private Limited to refund the amount Rs.16,92,099/-  (Rupees Sixteen Lakh Ninety Two Thousand Ninety Nine)   to the complainants with interest @ 9% p.a. from the date of each deposit till realization within a period of 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 12% p.a. till realization. We also award Rs.1,00,000/- (Rupees One Lakh) as compensation to complainants for mental agony and harassment and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation.  The application of OP stands dismissed.

A copy of this order be sent/provided to all 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

                                                                                                     (Member)