Delhi

New Delhi

CC/151/2018

Shir Chaman Lal Jindal - Complainant(s)

Versus

M/S. TDI Infrastructure LTD. - Opp.Party(s)

22 Dec 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.151/2018                                   

IN THE MATTER OF:

 

1. Sh. CHAMAN LAL JINDAL

S/O  SHRI GOPI RAM

 

2. SMT. NEERJA JINDAL

W/O SHRI CHAMAN LAL JINDAL

 

BOTH RESIDENT OF C-31, NEHRU ENCLAVE,

BEHIND JAIN HARDWARE,

NARELA ROAD, ALIPUR, DELHI-36                                     ...COMPLAINANTS

 

VERSUS

M/S TDI INFRASTRUCTURE LTD.,

THROUGH ITS DIRECTORS

CORPORATE OFFICE AT:

10, SHAHEED BHAGAT SINGH MARG,

GOLE MARKET, NEW DELHI-110001.                        ....OPPOSITE PARTY

 

 

Quorum:

 

Ms.Poonam Chaudhry, President

Shri Bariq Ahmad, Member

 

                                                                                                                                               Dated of Institution :-  19.04.2018                                                                                                                                                                        Date of Order : -  22.12.2022

 

ORDER

BARIQ AHMAD, MEMBER

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CP Act) by complainants against Opposite Party (in short `OP`) alleging deficiency of services. Briefly stated the facts of the case are that the complainants booked a Commercial Unit/shop in the Project "TDI City" at Kundli, Sonepat, Haryana, measuring 400 sq. feet with Opposite Party and paid a sum of Rs.11,35,400/- through cheques and the said amount was duly acknowledged by the Opposite Party, vide Customer ID: KCC-10606.

 

2. The said commercial space was booked by the complainants, for their own personal use and occupation, as the complainants wanted to start new business for their son and for the purpose of earning their livelihood. At the time of initial booking, the Opposite Party assured that the offer of allotment shall be made within 12 months from the date of initial booking i.e.24.12.2006, however, nothing said has been done till date and the complainants have been duped of the aforesaid amount.

 

3. That the above said amount was paid by the complainants over period of time, as and when demand was raised by the Opposite Party. Opposite Party however did not start any construction nor informed the complainants about any progress at the Site. The Opposite Party however kept on demanding amount from the complainants on flimsy grounds. It is also stated that till date even after passing of 12 (Twelve) years from the date of booking no construction activity has been carried out at the site and the complainants have not been informed about the fate of the Project. The complainants were time and again assured that the construction at the site shall be completed shortly, but to no avail. At the time of receipt of the aforesaid amount, the complainants were informed that the construction shall be completed within a period of 36 months from the date of initial payment.

 

4. That initially the Shop was booked with M/s Taneja Developers and Infrastructures Ltd. and surprisingly, in the meantime, the Opposite Party took cheques from the complainants in the name of M/s Intime Promoters Pvt. Ltd. in the year 2006-2007 and thereafter, the Opposite Party received cheques in the name of TDI Infrastructure Ltd. All the said companies are the sister concerns of the OP and the entire payments have duly been acknowledged by the Opposite Party from time to time and they issued receipts thereof.

 

5. It is also alleged that the Opposite Party kept on threatening to cancel the allotment and allocate the Shop and forfeit the entire amount. It is also alleged that OP have neither allotted any Shop nor refunded the invested amount with interest and are in the process of grabbing the entire amount. Opposite Party have refused to provide to complainants any documents i.e. License Obtained, Sanction Plans, Copy of title ownership and various other applicable approvals as per Government requirements.

 

6. The Opposite Party had also taken signatures of the complainants, on various blank papers and stamp papers, for the purpose of refunding the amount of another space in name of their sons Shri Chakshu Jindal and Shri Rajiv Jindal, however the complainants were never allowed to read the said papers and the even the contents to the said documents were never disclosed. However, the Opposite Party refunded the amount of Rs.3,75,000/- to them, without any interest under false pretext that the interest shall be paid separately, but no interest has been paid till date.

 

7. That constrained by the illegal acts of the Opposite Party, the complainants sent a legal notice through his counsel dated 08.02.2018 through Speed Post and asked the Opposite Party to refund the amount of Rs.11,35,400/- (Eleven Lacs Thirty Five Thousand Four Hundred Only) paid by the complainants towards the purchases of Shop/commercial space along with interest @ 24% per annum from the date of  payment till realization. The OP did not comply with the said notice.

 

8. It is stated that the complainants is a consumer and there is deficiency of service on the part of the Opposite Party. That the complainants is consumer as per the definition of consumers give under Section 2(d) of the Consumer Protection Act, 1986. There is deficiency of service (Section 2(g) of the CP. Act (1986) on the part of the Opposite Party.

 

9. It is therefore prayed that the Opposite party be directed to refund the amount of Rs.11,35,400/- (Rupees Eleven Lacs Thirty Five Thousand Four Hundred Only) paid by the complainants towards the purchase of Shop/ commercial space along with interest @ 24 % per annum from the date of payment till realization to the complainants and to pay compensation to the tune of Rs.1,00,000/- to the complainants for mental pain and agony and litigation charges of Rs.25,000/- (Rupees Twenty Five Thousand).

 

10. Pass any other or further order(s) or relief(s) which this Hon'ble Forum may deem fit and proper in the facts and circumstances of the complaint in favour of the complainants and against the Opposite Party, in the interest of justice.

 

11. Notice of the complainants was issued to OP. OP entered appearance and file written statement alleging inter alia the Opposite Party along with its associate companies deals in development of real estate in the form of integrated township, comprising of residential and commercial plots of various dimensions, residential apartments, villas, multiplexes and malls etc., in various parts of North India. It is further submitted that the Opposite Party enjoys a great reputation in providing the services as undertaken with the great magnitude and in a time frame as committed. The integrated townships of TDI City at Panipat, TDI City at Moradabad are few instances of the committed and fully functioning services/projects undertaken by the Opposite Party. Another such project is TDI City at Kundli, Sonepat, Haryana.

 

12. It was also stated that it is submitted that sometime in 2006 the Complainants approached the Opposite Party, with the intention of investing in commercial Unit in the upcoming Project ‘RODEO DRIVE' Mall, Kundli, Sonepat, Haryana of the Opposite Party. Complainants booked a commercial unit/shop and paid Rs.3,20,000/- (Rupees Three Lakh Twenty Thousand) as booking amount and was allotted D-KCC 10606.

 

13. The Complainants opted for a 'Construction Linked Payment Plan' for making the payments towards the Commercial Shop in question. The Opposite Party vide their Allotment Letter offered the provisional allotment of Shop No. SP-125 on the Second Floor in the Opposite Party's Project to the Complainants. It is pertinent to mention that the Basic Price of the Shop in question was Rs.16,00,000/- excluding EDC, IDC, PLC, VAT and all other statutory charges.

 

14. Subsequently, the Opposite Party executed a Buyer's Agreement in favour of the Complainants on 26.12.2009.

 

15. Thereafter the Complainants stopped making payments towards the said Commercial Shop without any intimation or reasonable explanation. After granting considerable time to the Complainants and waiting for a considerable time, the Opposite Party was constrained to issue various Demand Letters calling upon the Complainants to make all payments and clear their outstanding dues. However, the Complainants failed to make payments.

 

16. The Opposite Party was thereafter constrained to send a Pre-cancellation Letter dated 19.07.2013 of Provisional Allotment due to the regular defaults of the Complainants in making outstanding payments, which was also not complied with by the Complainants.

 

17. It was further submitted that the Complainants are not 'consumer' as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. The Complainants have booked the Commercial Shop in question solely for commercial purposes and therefore, the Complainants do not fall under the definition of 'Consumer'. It is denied by the OP that till date no construction has been carried out. It is prayed that complaint be dismissed.

 

18. Both the parties filed their evidence by affidavit.

 

19. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.

 

20. 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 complainants had relied upon the flat buyer agreement and receipt of payment Rs.11,35,400/- (Rupees Eleven Lakh Thirty Five Thousand Four Hundred). The copies of receipt of the above amount issued by OP have been also filed by complainants. The receipts are not controverted by OP.

 

21. It was contended on the behalf of the complainants that OP was deficient in providing its services. It was also submitted that complainants had paid the cost of the flat i.e. Rs.11,35,400/- (Rs. Eleven Lacs Thirty Five Thousand Four Hundred Only)  to the OP but OP failed to deliver the property even after 10 years of the agreement.

 

22. It was also argued that according to article 4 clause 1 of the Builder-Buyer Agreement, the construction was to be completed within 24 months from the date of commencement of project but OP failed to hand over possession of the flat even till on the filing of the complaint. 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 24 months from the date of commencement of the project, but it failed to do so. It was also argued that the builder/OP thus failed to comply with the terms of article 4 clause 1 of the agreement.

 

23. The plea taken by  Learned Counsel for the OP/TDI that the Complainants is/are not a ‘Consumer’ as he had booked the shop for investment purpose or earning gain, is completely unsustainable in the light of the judgment of National Consumer Disputes Redressal Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge by filing any documentary evidence to establish their case. Therefore, we are of the considered view that the Complainants is/are  ‘Consumer’ as defined under Section 2 (1)(d) of the Act. 

 

24. With regard to the preliminary objection taken by the TDI that due to existence of Arbitration Clause in the Agreement, this Commission has no jurisdiction to entertain the Complaint, the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs Aftab Singh - I (2019) CPJ 5 (SC), has laid down the law that the Arbitration Clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. As such, the said ground does not hold any merits.

 

25. 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.

 

26. 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.

 

27. 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 shop in question which amounts to deficiency in service.

 

28. 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.

 

29. 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 complainants was justified in claiming refund of the amount deposited by him with compensation.

We are further of the view that the cause of action being the continuing one as the amount advanced by complainants were not refunded neither possession of the shop was handed over to him, the complaint is within the period of limitation.As regards the contention of OP that complainants is not a consumer, as defined in the Consumer Protection Act, 2019, 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.

 

30. As regards the contention of OP that complaint is not maintainable, the complainants ought to have filed a civil suit as he is seeking recovery of money. 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. We thus, hold that OP was guilty of deficiency in services. We also find that Complainants was/were 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.

 

32. We accordingly direct OP/TDI Infrastructure to refund the amount Rs.11,35,400/- (Rupees Eleven Lakh Thirty Five Thousand Four Hundred Only), to the complainants along with interest @ 12% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order. We also award compensation of Rs.1,00,000/- (Rupees One Lakh Only) for harassment and mental agony suffered by the complainants, due to deficiency in service of the causing harassment and mental agony to the complainants including the deficiency in service and unfair trade practice adopted by OP. In case of delay in the payment beyond 4 weeks OP is directed to pay interest @18% p.a. for the delayed period. We also award Rs.25,000/- (Rupees Twenty Five Thousand Only) as cost on litigation.

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)                                                   

                                                      Member