Delhi

New Delhi

CC/608/2012

Khushwant Kumar Chugh - Complainant(s)

Versus

M/S. Taneja Developers & Infrastructure Ltd. - Opp.Party(s)

12 May 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

CC/608/2012

IN THE MATTER OF:

MR. KHUSHWANT KUMAR CHUGH

S/o SHRI SAWAN MAL CHUGH,

R/o A-25, JAIN PARK,

UTTAM NAGAR, NEW DELHI                                                        COMPLAINANT

VERSUS

1. M/S TDI INFRASTRUCTURE PVT. LTD.

(FORMERLY KNOWN AS INTIME PROMOTERS PVT. LTD.)

THROUGH ITS DIRECTORS/ AUTHORISED SIGNATORY

REGD, OFFICE AT:

9, KASTURBA GANDHI MARG,

NEW DELHI 110001,

ALSO AT:

TDI, G-7, GROUND FLOOR,

CONNAUGHT CIRCUS

OPP, MADRAS HOTEL BLOCK,

NEW DELHI

2. M/S SURENDRA PROPERTIES,

THROUGH SHRI, SURENDRA MAKHIJA,

SIKANDERPUR (OFF SHRIRAM HOSPITAL)

MEHRAULI GURGAON ROAD,

GURGAON

ALSO AT:

4, PURVI MARG,

DLF, PHASE-II, GURGAON,

HARYANA                                                                               OPPOSITY PARTY

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :21.06.2012

                                                                             Date of Order         :12.05.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act 1986 hereinafter referred to as the CP Act. Briefly stated the facts of the case are that Opposite Party (in short OP) is carrying the business of real estate, and had advertised the scheme of its upcoming project on Kundli, Sonepat with the name of ‘TDI city Kundli’ and gave rosy picture of their said project. The Opposite Parties induced the Complainant to invest in the said project. At the time of initial enquiry about the project and scheme, the Opposite Parties and their concerned officials gave false assurances and also provided wrong details to the Complainant and assured to execute the project in time.
2.  It is also alleged that believing assurances, allurement, inducement of the Opposite Parties, the Complainant agreed to invest in above said upcoming residential project for a flat, admeasuring 1110 Sq. feet. and paid a sum of Rs.3,00,000/- (Rupees Three Lacs only) to the OP on 26.02.2006 vide cheque No.330400 along-with an application as initial booking amount.
3. It is further alleged that Complainant time and again visited the office of the Opposite Parties no.1 and 2 and enquired about the project. The Opposite Parties gave false information that permission from various authorities, sanction were being obtained and work at site will commence very soon.
4. It is also alleged that later on the Complainant came to know about the illegal and unlawful conducts of the Opposite Party no.1 that it had no sanction or required approvals for construction of flats in S-Block. The Opposite Party No.1 in collusion and connivance with Opposite Party No. 2, had agreed to allot the Complainant Apartment No.0302 of 2 BHK, measuring 103.119 Sq. Meters in Tower 'H' on 3rd floor in Building No.H4, in Township "TDI CITY" at Kundli, Sonepat, Haryana vide Allotment letter dated 20.03.2007 and extracted a further sum of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand only) in cash, on the said date. The Opposite Parties falsely assured the Complainant that the project plan was approved by several banks and loan was available from all banks. But on checking with banks it was revealed that the S-Block site plan was not approved and no bank was willing to give bank loan till 2009.
5. It is further stated that as per the agreement Opposite Party No.1 was under obligation to handover the possession of apartment to the Complainant within two years but by manipulating, altering, fabricating the agreement, the Opposite party made changes in the agreement form the words 2 years to 3 years. The Opposite parties failed to hand over the possession of the subject property to the Complainant and causing financial losses to the Complainant to the tune of Rs.10,000/- p.m. towards rental as the Complainant intended to purchased the apartment for his parents.
6. It is also alleged that OP-1 asked for a sum of Rs.1,32,395/- (Rupees One Lac Thirty Two Thousand Three Hundred Ninety Five only) towards the interest towards late payment without any fault of the Complainant. It is also stated the Complainant is ready to pay the balance amount, to the Opposite Parties as per terms and conditions of the agreement.
7. It is also alleged that the Complainant is the consumer, the opposite parties have failed to discharge their part of duties, which amounts to deficiency in services on their part, and is against the principle of fair trade practice.
8. It is also stated that the Complainant was constrained to issue a legal notice dated 12.04.2012 by regd. post A.D. courier to OP, which was duly served upon the Opposite Parties but despite service of the said notice the Opposite Parties neither complied the same nor replied to the same, which clearly shows the malafide intention of the Opposite Parties.
9. It is alleged that the illegal acts of the Opposite parties amounts to deficiency in services as defined in Section 2 of the Consumer Protection Act, 1986 and the Complainant has no other efficacious remedy. It is also stated the Complainant is within the period of limitation.
10.  It is alleged that the Complainant works for gain and the Opposite Parties also working for gain, within the jurisdiction of this Forum as such this forum has got jurisdiction to decide this matter. It is prayed the Opposite Parties be directed to handover the possession of Apartment No.0302 of 2 BHK, measuring 103.119 Sq. Meters in Tower 'H' on 3rd floor in Building No.H4, in Township "TDI CITY" at Kundli, Sonepat, Haryana, to Complainant.

The OP be directed to make the payment of amount of Rs.2,00,000/- (Rupees Two Lacs only) towards interest on the amount of Rs.3,00,000/- which the opposite parties extracted on 26th February, 2006 and adjusted in the agreement dated 20.12.2008.

The Opposite parties be also directed to pay compensation of Rs. 2,00,000/- for the harassment, mental agony and tension suffered by the Complainant due to the above said illegal acts and deficiency in services on the part of the Opposite parties and also pay cost of the proceedings.

11. OP-1 contested the case, written statement was filed stating the complainant had approached OP-2 an independent broker for investment in the project of OP-1 and the assurances if any were given by OP-2 to complainant and not OP No. 1. it was further stated that complainant had registered for allotment of flat 11,00 square feet vide registration from dated 26.02.2006 and gave registration amount of 3,00,000/-. It was also stated that an agreement dated 10.12.2008 was executed between the parties. Complainant failed to make payment on the due dates provided in the agreement. The agreement provided that construction will be completed within 3 years, however, the complainant did not lodge any protest. It was further stated that respondent vide letter dated 15.06.2012 offered possession to complainant. The complainant however did not come forward to take possession. Thereafter, another letter was sent to complainant dated 05.07.2012 to pay the balance amount, Complainant however did not take any step.
12. It was also stated that complaint was not maintainable, as complainant had no cause of action. It was also further stated that there were no deficiency in service on part of OP. It was denied that OP was liable to pay interest. It was alleged that on the other hand, complainant was liable to pay interest for delay in payment. It was denied that OP was guilty of any breach of conditions of the agreement. It was denied that any legal notice was served on OP No. 1. It was also denied that respondent failed to provide services. It was alleged that complaint be dismissed.
13. OP No. 2 did not file reply/ Written Statement.
14. Complainant filed rejoinder to the Written Statement of OP No. 1 reiterating therein the averments made in the complaint and controverting all the allegations made in the Written Statement of OP No. 1. Complainant and OP No.1 thereafter filed their evidence by affidavits.
15. We have heard the Ld. Counsel for the parties and perused the material on record carefully.
16. The fact that Complainant booked a flat in the project of OP No. 1 is an admitted fact as evident from the evidence of the Complainant and OP No. 1. The Complainant and OP No. 1 have relied upon the Apartment buyers agreement dated 10.12.2008. OP No. 1 admitted that Complainant booked a flat in the project of OP No. 1 and paid registration amount of Rs. 3,00,000/-.It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also argued that complainant had paid Rs. 3,00,000/- (Rupees Three Lacs Only) to the OP but OP failed to deliver the property on time. As regard deficiency in services, Hon’ble Supreme Court has heldin 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.
17. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’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.
18. On the other hand it was submitted on behalf of the OP that the complainant was vide letter dated 15.06.2012 offered possession but Complainant did not respond. The Complainant was also informed vide letter dated 05.07.2012 of the balance amount due however Complainant did not made payment. It was also argued that the complainant has not been able to establish any deficiency of service under the Consumer Protection Act, which could be attributable to the OP No. 1, therefore, the Complaint is liable to be dismissed. It is to be noted that no evidence was led by OP in support of the above said contention as there was no proof of service of the letter dated 15.06.2022 and 05.07.2012, the postal receipts of the said letters were not filed. The said contention is in our view without merit.
19. The allegation against OP No. 2, have gone unrebutted. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there was inordinate delay in handing over the possession of the flat in question as even till filing of complaint possession was not handed over, which amounts to deficiency in service.
20. 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.
21. 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 No. 1 and 2 were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.
22. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
23. We are also of the view that the contention of OP No. 1 that Complainant is not a consumer, but a speculative investor is without merit as a mere allegation has been made in this regard in the Written Statement,  no evidence has been led to show that Complainant booked the flat for investment purpose. In this regard Hon’ble Supreme Court has held in Sai Everest Developers v Harbans Singh Kohli 2015 SCC Online NCDRC 1895 that OP should establish by documentary evidence that  Complainant was dealing in real estate or in the purchase and sale of subject property for making profit.
24. As regards the contention of OP No. 1 that Complainant has no cause of action and complaint is not maintainable. It is 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.
25. We thus, hold that OP No. 1 and 2 were guilty of deficiency in services. We direct OP No.1 to refund the amount Rs. 3,00,000/- (Rupees Three Lacs only) to the complainant along with interest @ 9% p.a. from the date of deposit till realization of amount with OP No. 1 within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP is directed to pay interest @ 12% p.a. for the delayed period. We also award Rs. 10,000/- (Ten Thousand Only) as cost on litigation
26. A copy of this order be 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)                                                                           (ADARSH NAIN)           

                 Member                                                                                         Member