Delhi

New Delhi

CC/1132/2013

Parveen Kumar & Anr. - Complainant(s)

Versus

M/S. Shree Vardhman Developers Pvt.Ltd. - Opp.Party(s)

06 Mar 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-1132/2013      

IN THE MATTER OF:

1. Parveen Kumar
2. Mrs. Rekha

W/o Sh. Parveen Kumar

Both the resident of :

72-D, Railway Colony,

Tuglakabad, New Delhi – 110044.

...Complainant

VERSUS

 

Shree Vardhman Developers Pvt. Ltd.

Having its registered Office at

301-311, 3^rd Floor, Indraprakash Building,

Through Shri Pintu Giri,

Senior Manager (Commercial)

...Respondent

Quorum:

Ms. Poonam Chaudhry, President

Shri Shekhar Chandra, Member

Date of Institution : 26.12.2013

                                                                                       Date of Order        : 06.03.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as CP Act) alleging deficiency of service by Opposite Party (in short OP).
2. Briefly stated the facts of the case are that the complainants purchased the Flat constructed by the Opposite Party at Sector-10, Sonepat (Haryana) in the name and Style of “Shree Vardhaman Gardenia”. The said Flat was for the personal use of the complainants and as such the complainants are ‘consumer’ within the meaning of the Act.
3. It is also alleged that the Opposite Party is a builder and is engaged in the construction of the residential complexes and is providing service within the meaning of section 2(1)(o) of the Act. The Opposite Party published an advertisement in Times of India, New Delhi Edition on 31.05.2008 to sell a flat at ‘At unmatched Price’ of Rs.14 Lacs only. Complainant allured by the advertisement of the Opposite Party at an attractive price of Rs.14 Lacs contacted the Opposite Party for booking a Flat in above project ‘Vardhman Gardenia’.
4. It is further alleged that on the persuasion of OP, the complainants entered into a flat Buyers Agreement on 17.07.2008, and paid the booking amount of Rs.1,00,000/- (Rupees One Lakh) vide receipt no. 1094 dated 07.07.2008, wherein Opposite Party agreed to sell and complainant agreed to purchase the constructed residential flat bearing no. 303 on 3^rd Floor in Tower No. E4 having an area of 930 sq. ft. 
5. The complainants opted for Plan D i.e. Down Payment plan (with Rs.2,00,000/- rebate) under the agreement, complainant has made all the payments as per the above plan.
6. It is further stated the complainant paid more than 95% of the price of the flat as per Plan D which is evident from the statement of account furnished by the Opposite Party which shows that the total amount paid by the complainant was Rs.16,84,250/- (including all charges). The account statement dated 02.12.2008 was furnished by the Opposite Party to the complainant which is filed.
7. It is also stated it was represented by the Opposite Party that the flat will be delivered to complainant within 3 years from the date of agreement. But OP failed to deliver possession of the flat within the time frame. The deadline to deliver the possession of the flat expired on 16.07.2011 and if the grace period of 6 months is included, the same expired on 15.01.2012.
8. That because there was delay in delivery of possession complainant write a letter to opposite party dated 02.05.2012 to pay Rs.5 per sq. ft. of the super area as penalty for delay in delivery of possession as per clause 10 (c) of the agreement.
9. The Opposite Party sent a reply dated 09.05.2012 to the aforesaid letter agreeing to pay the penalty in case of delay in delivery of possession. However, it was stated that delay is to be counted from the date of start of foundation as per clause in the agreement. That to the surprise of the complainant a letter dated 25.07.2013 was received by the complainant calling upon complainant take the possession of the flat subject to payment of the outstanding amount, maintenance, security charges, stamp duty as per Annexure-9, appendix A,B and C.
10. The complainant contacted opposite Party and represented his grievance that exorbitant amount was being charged by the opposite Party whereas as per the statement dated 02.12.2008 the complainant was only required to deposit Rs.82,325/- (Rupees Eighty Two Thousand Three Hundred Twenty Five).
11. The complainant was informed that he had to pay the charges mentioned in the letter dated 25.07.2013 or else he will have to pay interest at the rate of 24% per annum or else the booking of flat will be cancelled and the earnest money will be forfeited.
12. The complainant sent a legal notice to the opposite party stating their action was unfair and illegal as in the name of (other charges). Opposite party had demanded price which was 60% over and above the value claimed by them in the advertisement dated 31.05.2008.
13. It is alleged the opposite part has adopted an unfair trade practice. The statement of account of opposite party shows the total amount of the flat to be Rs.21.76 lacs compared to Rs.14 lacs claimed by opposite party in the initial advertisement. In the name of 'other charges', opposite party are claiming 60% over and above the total purchase value of the flat.
14. It is prayed that OP be directed to deliver possession of the flat at the earliest on payment of balance sum Rs.82,325/- (Rs.16,84,250/- minus 16,01,925/-) not to charge exorbitant amount.
15. Opposite party be also directed to pay penalty as per agreement clause 10(c) @ 53.80 per sq. mt. or Rs. 5/- Sq. ft of the super area of Flat per month and to refund the amount of open car parking which has been paid by the complainant.
16. Notice of the complaint was issued to OP, OP entered appearance and file reply stating that the complaint is not maintainable.  OP has not been guilty of providing deficient services and/or indulging into any unfair trade practice and/or selling defective goods rather it is case where the complainant who breached his contractual obligation. The answering OP has acted strictly in accordance with the agreed terms and conditions and it is not guilty of unfair trade practice.
17. It was submitted that complainants are not “consumer” as defined under section 2(d) of the Consumer Protection Act, 1986. The complainant in the present are of investors and booked the Flat for investment in the real estate for commercial purpose.  On this ground alone the complaint filed by the complainant is not maintainable and liable to be dismissed.
18. It was alleged the relief in the present complaint for specific performance of a contract/possession of immovable property which cannot be granted being beyond the ambit and scope of the CP Act and on this ground alone the complaint deserve to be dismissed.
19. It was also stated that the complainants cannot be allowed discard the terms and conditions of a written contract duly entered into between the complainants and the Opposite Party, the complainants had read and understood the terms mentioned herein and in token of acceptance thereof signed the said application form and the agreement out of their free will and accord and without any undue influence and duress.
20. The complainants filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegation made in the written statement. Both parties thereafter filed their evidence by way of affidavit and also written submissions.
21. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
22. The fact that complainants booked a flat in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement dated 17.07.2008  and receipt of payment of Rs.16,01,925/- (Rupees Sixteen Lakh One Thousand Nine Hundred Twenty Five). The receipts of the above amount have not been controverted by OP.
23. It was contended on the behalf of the complainant that OP was deficient in providing services. It was also submitted that complainant paid 95% of the cost of the flat i.e. Rs.16,01,925/- (Rupees Sixteen Lakh One Thousand Nine Hundred Twenty Five) to the OP but OP failed to deliver the possession of flat within 3 years from the date of agreement dated 17.07.2008. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to constructs the property within 3 years from the date of agreement, but it failed to do so. It was also argued that the builder/OP had given advertisement in the daily Times of India claiming to sell the flat at unmatched price which Ex CW1. Complainant relied upon price list according to which the price of flat was Rs.14,00,000/- (Rupees Fourteen Lakh) under the payment plan CW-2. The flat buyer agreement dated 17.07.2008 CW-3, Receipts of payments CW-4, statement of account CW-5, letter sent by complainant to opposite party CW-6 dated 02.05.2012 to pay penalty of Rs.5 per feet for delay in delivery of possession. It was argued that opposite party had to pay penalty as per clause 10(c) of the agreement for delay in delivery of possession. 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. It was also argued that the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, 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 that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
27. It is to be noted Section 2 (r) of the Consumer Protection Act, 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 justified in 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 complainant is not a consumer, as defined in the Consumer Protection Act, it is to be noted that a mere allegation has been made in the WS by OP, in this regard no evidence was brought on record to prove the said contention. We are thus of the view that the same is without merits.
31. As regards the contention of OP that complaint is not maintainable, the complainant ought to have filed a civil suit as he is seeking specific performance of the contract. 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.
32. As regards the objection taken by OP that complainant is 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 property 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.
33. We thus, hold that OP/Shree Vardhman Developers Pvt. Ltd. guilty of deficiency in services. We also find that Complainant was not at fault for the delay which occurred in the completion of project. We further hold that there are no reasons to justify the delay in completion of the project. We accordingly direct OP/Shree Vardhman Developers Pvt. Ltd. to deliver possession of the flat on payment of balance amount of Rs.82,325/- (Rs.16,84,250/- minus 16,01,925/-) as agreed between the parties. OP is also directed to pay penalty as per clause 10(c) of the agreement @5 per square feet of super area of the flat per month with interest @ 9% p.a,   within 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 18% p.a. till realization. We also award Rs.1,00,000/- (Rupees One Lakh) as compensation for mental agony and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of the litigation.

File be consigned to record room along with a copy of the order

A copy of this order be sent/provided to all parties free of cost. The order be uploaded on the website of this Commission.

 

 

Poonam Chaudhry

(President)

 

 

 

                                                   Shekhar Chandra

                                                                                                         (Member)