Delhi

New Delhi

CC/147/2021

Rajiv Kapoor - Complainant(s)

Versus

M/S. TDI Infracorp (India) LTd. - Opp.Party(s)

03 Feb 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/147/2021

IN THE MATTER OF:

 

Mr. Rajiv Kapoor

16, Sweet Home Apartments,

Sector-14, Rohini,

New Delhi – 110085.                                                                                         ….Complainant

VERSUS

 

 

1. M/s TDI Infracorp (INDIA) Limited

(Formerly known as TDI Infracorp Ltd.)

(earlier known as Taneja Developers &

Infrastructure (Panipat) Ltd.)

UGF, Vandana Building,

11, K. G. Marg, New Delhi – 110001.

 

2. Mr. D. N. Taneja

Whole Time Director

TDI Infracorp (India) Ltd.

10, Shaheed Bhagat Singh Marg,

Gole Market, New Delhi – 110001.

 

3. Mr. Kamal Taneja

Managing Director

 

4. Mr. Yashpal

Director

 

5. Ms. Sunita

Director

 

6. Mr. Neeraj Kulshreshtha

G.M. Marketing                                                           ....Opposite Parties

 

 

 

 

 

Quorum:

 

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmad, Member

Mr. Shekhar Chandra, Member

                                                                                                           Date of Institution:- 13.08.2021                                                                                                                                                                         Date of Orde  :-          03.02.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under section 35 of the Consumer Protection Act, 2019 (in short CP Act) alleging deficiency of services by OP.  Briefly stated the facts of the case are that the Opposite Party No. 1 is a Company incorporated under the Indian Companies Act and operates from its Registered and Corporate Office at UGF, Vandana Building, 11, K. G. Marg, New Delhi-110 001.
2. The Opposite Parties No. 2 to 6 are the Whole Time Director, Managing Director, Director and General Manager, Marketing of the Opposite Party No. 1 and are all responsible for the day-to-day affairs and business of the Company.
3. It is alleged that in the year 2010, the Opposite Party No. 1 launched a Residential Scheme under the name and style of Water Side Floors, at Lake Grove, Sector-63, Kundli, Sonepat, Haryana. The Complainant was approached by one of the Launch Partners of the OP No. 1 and was assured of a timely possession within 30 months of the execution of the agreement as mentioned in Clause 28 of the Buyers Agreement.
4. It is alleged the Complainant made the Advance Payment of Rs.5,00,000/-(Rupees Five Lakh) vide cheque no. 90276 dated 11.04.2013 drawn on HDFC Bank to which the OP No. 1 issued Receipt No. 0002159 dated 10.05.2013. The booking was made based on the oral assurances of OP.
5. It is also alleged that without getting any Apartment Buyers Agreement signed, the OP raised yet another demand 26.06.2013 for an amount of Rs. 5,51,531/- (Rupees Five Lakh Fifty-One Thousand Five Hundred Thirty-One only) payable by 15.07.2013. The said amount was paid by the Complainant by way of cheque no. 90294 dated 15.07.2013 drawn on HDFC Bank and the receipt for same issued by the OP No. 1.
6. That thereafter, the OP raised another demand at the time of Allotment of an amount of Rs. 5,87,600/- (Rupees Five Lakh Eighty- Seven Thousand Six Hundred only) which again was paid in time and the OP issued a receipt.
7. It is further stated the Buyers Agreement was executed on 15.10.2013, by them OP has taken an amount of Rs. 16,39,131/- (Rupees Sixteen Lakh Thirty-Nine Thousand One Hundred Thirty-One only) approximately of 35% of the Total Sale Consideration.
8. It is further stated that a demand for the External Development Charges (EDC) of Rs. 1,99,640/- (Rupees One Lakh Ninety Nine Thousand Six Hundred Forty) was raised, OPs called upon the Complainant to sign the Buyers Agreement. The Complainant had no choice but to sign the said agreement, since by then he had already paid a huge amount of Rs.16,39,131/- (Rupees Sixteen Lakh Thirty-Nine Thousand One Hundred Thirty One only). The terms of agreement were one sided.
9. It is further alleged that the OPs raised further demands of Rs. 5,46,377/- (Rupees Five Lakh Forty-Six Thousand Three Hundred Seventy- Seven only) vide letter dated 20.01.2014. and Rs. 5,46,377/- (Rupees Five Lakh Forty-Six Thousand Three Hundred Seventy-Seven only) by way of letter dated 01.04.2014 and demand of Rs. 2,99,122/47 (Rupees Two Lakh Ninety-Nine Thousand One Hundred Twenty-Two and Paise Forty-Seven only) by way letter dated 23.04.2014. Another demand of Rs. 1,99,640/- (Rupees One Lakh Ninety Nine Thousand Six Hundred Forty) was raised by the OP vide letter dated 27.10.2014. Thereafter, the OPs raised yet another demand of Rs. 2,65,000/- (Rupees Two Lakh Sixty Five Thousand only) by way of Letter dated 22.12.2014, that the Complainant had made a total payment to the tune of Rs. 53,37,470/- (Rupees Fifty-Three Lakh Thirty-Seven Thousand Four Hundred Seventy only) till date and is entitled to get a refund of Rs 19,34,580/- (Rupees Nineteen Lakh Thirty-Four Thousand Five Hundred Eighty only), which is based upon the calculations as envisaged under the alleged Buyers Agreement.
10. It is further alleged that OP sent a letter of possession and raised demand of Rs.11,68,351.62 (Rupees Eleven Lakh Sixty Eight Thousand Three Hundred Fifty One and Paise Sixty Two only). It is alleged that project in question is covered under RERA and that the payments were to be made into the Escrow Account under the name of "TDI Infracorp Escrow". It is alleged that it has settled law that the interest which is being charged would be the interest payable by the Company too and the Companies cannot discriminate in charging the interests at exorbitant rates and pay the interest at very low rates. Accordingly, a Legal Notice dated 17.06.2021 was sent, which has not been responded to by the OPs.
11. It is also alleged that OP offered possession vide letter dated 01.06.2021, and mentioned that the Super Area of the Flat is now 1520 Sq. Ft. instead of the original booked area of 1400 Sq. Ft. The letter was completely silent regarding reason for such an increase. However OPs offered the possession vide letter dated 01.06.2021 without obtaining any Occupation Certificate from the Town & Country Planning Department, which is a precondition before putting any building into possession and use.
12. It is also stated that charging of huge amounts to the tune of Rs.11,68,351.62 (Rupees Eleven Lakh Sixty Eight  Thousand Three Hundred Fifty One and Paise Sixty Two only) by the OPs while offering possession, was contrary to the one sided terms of the Agreement which amount to deficiency of services.
13. It is further submitted that the alleged increase in area is nothing but a farce being created by OPs to grab unjust money from the buyers. There is no proof of any increase in area of the flat. It is also alleged that the demand of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) on account of Parking charges are illegal demand.
14. It was also alleged the terms of the Buyers Agreement, though one sided, do not provide for any charges towards any Car Parking Clause 12(d) provide as under:

"The Buyer shall be entitled, without any ownership rights, to use the open covered parking space for parking his/her vehicle on the ground floor portion of the said Building This parking space shall be a common area and the Buyer shall use the same harmoniously with other Buyers/Occupants, without causing any inconvenience or hindrance to them"

15. It is alleged that it was held in case titled Nahalchand Laloochand Pvt. Ltd. Versus Panchali Co-operative Housing Society Ltd. by Hon'ble Supreme Court of India in Appeal Number: Civil Appeal No. 2544 of 2010 vide its Judgment dated 31/08/2010, that the parking is not saleable and has to be an integral part of the flat itself and nothing extra can be charged for the same.
16. The charges as claimed and demanded of Rs.88,500/- (Rupees Eighty Eight Thousand Five Hundred only) towards the Club Membership are also not payable at all.

 

17. It is stated the Complainant wants to cancel the booking and is entitled to claim refund of the full amount of Rs. 53,37,470/- (Rupees Fifty Three Lakh Thirty Seven Thousand Four Hundred Seventy only) as paid upto date along with interest @ 21%, being the contractual rate of interest.
18. It is submitted that the actions of OPs,  not only amount to deficiency in service but also unfair trade practices as well as Criminal Breach of Trust, Criminal Intimidation, Cheating and Fraud and thus, the OPs are liable to be prosecuted under the, Consumer Laws.
19. It is alleged that the Complainant has not filed any other such complaint before any other Court of Law or Forum.
20. This Forum has the pecuniary and territorial jurisdiction to adjudicate the present complaint as defined under Section 34 of the Act.
21.  “It is prayed that OP be directed to maintain the status quo till the time the present Complaint as provided under Section 38(8) of the CP Act, 2019, be directed the OP's to produce the relevant directions/ approvals or material towards increase in area and not to ask for any such charges,

1. direct the OPs to refund the amount of Rs. 19,34,580/- (Rupees Nineteen Lakh Thirty Four Thousand Five Hundred Eighty only) along with interest till the date the payment is made.
2. pass order directing the OPs to hand over the physical possession of the Unit/ Floor forthwith without raising any charges,
3. in the alternative, pass an order directing the OPs to cancel the Allotment and refund the amount of Rs. 53,37,470/- (Rupees Fifty Three Lakh Thirty Seven Thousand Four Hundred Seventy only) along with the contractual rate of interest @ 21% p.a. from the dates of payments till realization
4. Impose heavy penalty on the OPs for all the deficiencies in services rendered as well as appropriate compensation towards opportunity cost as defined under Section 39(m) of the Act.
5. pass order awarding the cost and expenses in favour of the Complainant as defined under Section 39 (m) of the Act.
6. award compensation to the Complainant to the tune of Rs. 20,00,000/- (Rupees Twenty Lakhs only) for having suffered heavily at the hands of the OPs and its arbitrary approach as defined under Section 39 (b) & (d) of the Act.
7. pass such other or further order(s) as may be deemed fit and proper in the facts and circumstances of the present case,”

22. Notice of the complaint was issued to OPs, OP No.-1 to 6 entered appearance and filed written statement taking preliminary objections that due to Covid-19 Pandemic and lockdown was imposed, the labour had left to native place due to which it was very difficult to resume the construction activity but despite that opposite party had resumed the construction activity at full scale. It was also stated project is funded by Swamih Funds (SBI Cap) under the package given by Government of India to revive the Real Estate Sector in Lockdown and is also monitoring the progress of the project actively.  The construction of Floor in the Project in question is  complete and is ready for possession and the Opposite Party had offered the flat/unit namely WF-152/First Floor having super area of 1520 sq. feet to the complainant on 01.06.2021. 
23. It was also alleged there is a specific clause 28 in the Buyer’s Agreement  that in case the possession cannot be offered on time, OP are committed to pay compensation at the rate of Rs.5/- per sq. ft. per month to the complainant for the period of delay.  But in the present case OP have offered the possession of the said Unit on 01.06.2021 vide Offer of Possession Letter dated 01.06.2021, therefore the OP was not liable to compensate the complainant. It was also alleged that complainant had not made full payment as per the agreed terms and conditions and Rs.11,68,351.62 (Rupees Eleven Lakh Sixty Eight Thousand Three Hundred Fifty One and Paise Sixty Two only) was outstanding as on 20.06.2021. 
24. It was also alleged that the Complainant is prospective investor. The complainant had purchased two other units/property in the project of sister company of the Opposite Party. The said units are (Units No.T-2/402 and T-2/403) in the project TDI Tuscan Heights. Thus it is evident that the Complainant is not a consumer, he is a speculative buyer who had invested in the Unit to get favourable returns.
25. It was further submitted that the Complainant has raised multiple and complicated issues which cannot be tried before by this forum in summary procedure, the same can only one adjudicated by civil court. It was also alleged the Complainant has failed to establish any case of action in his favour and against the opposite party. 
26. It was also alleged that there has been no deficiency of service or negligence on the part of the Opposite Party.  No act of omission or commission can be attributed to the Opposite Party due to which complainant suffered any loss, mental pain, agony or harassment.
27. On merits it was denied that the Complainant has made a total payment to the tune of Rs. 53,37,470/-  (Rupees Fifty Three Lakh Thirty Seven Thousand Four Hundred Seventy) till date and was not liable to make any further payment or was entitled to get a refund of Rs.19,34,580/- (Rupees Nineteen Lakh Thirty-Four Thousand Five Hundred Eighty only).
28. It was submitted that the complainant has paid Rs. 51,73,593.05 (Rupees Fifty One Lakh Seventy Three Thousand Five Hundred Ninety Three and Five Paisa) till date. The basic price of the Unit as per agreement was Rs.49,22,382.00 (Rupees Forty Nine Lakh Twenty Two Thousand Three Hundred Eighty Two) (1520 sq. ft.), but the total consideration has increased to Rs.63,33,867.00 (Rupees Sixty Three Lakh Thirty Three Thousand Eight Hundred Sixty Seven). This amount includes Parking Charges amounting to Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) , EDC charges amounting to Rs. 3,99,280/- (Rupees Three Lakh Ninety Nine Two Hundred Eighty), additional EDC charges as (allotted area was increased from 1400 to 1520 Sq. Ft, thus an increase of 120 Sq. Ft.) amounting to Rs. 34,224/- (Rupees Thirty Four Thousand Two Hundred Twenty Four) and additional Unit cost due to area alteration Rs. 4,56,000/- (including GST of Rs. 48,858/-).
29. It was denied that any legal notice or any mail was sent to opposite party. It was alleged that OPs offered the possession by way of its letter dated 01.06.2021. In the said possession offering letter it was clearly stated that Occupation Certificate has been applied by the OP and to save the precious time and OP was offering possession of the unit for to enable the complainant to carry out interior work of the Unit.
30. The complainant 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.
31. We have heard the Ld. Counsel for Parties and perused the evidence and material on record as well as their written arguments.
32. The fact that complainant booked a unit in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied Plot buyer agreement and receipts of payment. The receipts are not controverted by OP.
33. It was contended on the behalf of the complainant that OPs were deficient in providing its services. It was also submitted that complainant had paid approximately 35% of the price of the unit but OP failed to obtain occupancy certificate and offered possession without obtaining the same. It was also argued that the Builder-Buyer Agreement dated 18.11.2013 was totally one sided in favour of OP. It was alleged that as per clause 28 of the Buyers agreement, project was to be completed within 30 months from the date of agreement however  the prolonged delay in construction and handing over possession without obtaining occupancy certificate amounts to        deficiency in service. It was also argued that the opposite party was under contractual obligation to constructs the property within 30 months from the date of agreement i.e. 26.11.2013, but it failed to do so. It was also argued that the builder/OP thus failed to comply with  the terms of agreement. It was alleged that OP promised to give possession within 30 months of the agreement in terms of Clause 28 of the agreement. 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. It was further contended that the excuse Covid-19 is to mislead the Commission.
34. 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. A 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.
35. On the other hand it was submitted on behalf of the OP that delay in the project was due the pandemic of Covid 19 as the labour had left for its native place. It was alleged that as per the terms of the agreement OP had committed to compensate the complainant at @ Rs. 5/- per sq. feet per month for the period of delay but as possession was offered on 01.06.2021, the OP was not liable to pay compensation. It was also argued that the complainant has not been able to establish any deficiency of service or consumer which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
36. 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.
37. 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 occupancy certificate was obtained before offering possession. The complaint is within the period of limitation.
38. 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.

39. In our view, The contention of OP that complaint is not maintainable as the complainant ought to have filed a civil suit as the complainant raises complicated and disputed facts is without merits. 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.
40. We also find force in the contention of the complainant that the terms of agreement were one sided. It provided that for delayed payment complainant is liable to pay interest @ 21% whereas for delay in handing possession, whereas OP was liable to pay compensation at the rate of Rs. 5/- per sq. feet per month. It is also to be noted the demand of charging of parking charges was contrarily to the judgment of Hon’ble Supreme Court in case titled Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society C.A. No. 2544/2010 relied on by complainant. The demand of Rs. 11,68,351.62/- (Rupees Eleven Lakh Sixty Eight Thousand Three Hundred Fifty One and Sixty Two Paisa) at the time of offering possession was also illegal without occupancy certificate.
41. It is to be noted Hon’ble Apex Court has held in an identical case, in Civil Appeal No. 4000 of 2019 ‘ Samrudhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd,’ the Hon’ble Court as under:-
    1.  

 

42. We thus, hold that OP No.-1 to 6 guilty of deficiency in services. We allow prayer(e) of complaint for cancellation of the allotment and refund of Rs. 53,37,470/- (Rupees Fifty Three Lakh Thirty Seven Thousand Four Hundred Seventy) with interest. We accordingly direct OPNo.-1/TDI Infrastructure Ltd. to refund the amount Rs. 53,37,470/- (Rupees Fifty Three Lakh Thirty Seven Thousand Four Hundred Seventy) to the complainant along with interest @ 9% p.a. from the date of each deposit till realization  and also award compensation of Rs. 2,00,000/- (Rupees Two Lakh) for mental agony and litigation expenses of Rs. 25,000/- (Rupees Twenty Five Thousand)  to be paid within a period of 4 weeks from the date of receipt of order, failing which OP No-1 will be liable to pay interest @ 15% p.a. till realization.

A copy of this order be provided/sent 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]                                                                        [Shekhar Chandra]                                     Member                                                                                         Member