Delhi

New Delhi

CC/233/2021

Shiv Prasad Aggarwal - Complainant(s)

Versus

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

06 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.233/2021        

 

IN THE MATTER OF:

Sh. Shiv Prasad Aggarwal

S/o Sh. Ramji Lal

R/o A-24, Preet Vihar,

New Delhi-110092                                                                   ...Complainant

    

VERSUS

 

TDI Infrastructure Limited

(Formerly known as Intimate Promoters Private Limited)

Regd. Office-Upper Ground Floor,

Vandana Building 11, Tolstoy Marg,

Connaught Place, New Delhi-110001                                 ...Opposite Party

 

 

Quorum:

Ms.Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Shri Shekhar Chandra, Member

                                                 

 Date of Institution          : 12.11.2021        

      Date of Order            :          06.02.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under Section 34 of the Consumer Protection Act, 2019 (in short CP Act) against opposite party (in short OP) alleging deficiency of service. Briefly stated the facts of the case are that  Opposite Party TDI Infrastructure Limited is a company engaged in the business of construction and development of residential as well as non-residential properties.
2. That in and around the year 2006, the complainant was looking for some commercial properties. The complainant came to know that the Opposite Party was developing a project namely Part Street Commercial Plaza (Near Tau Devi Lal Park) on main G.T. Road, Sonipat, (Haryana). The complainant decided to buy a shop in the said project to carry out business for earning his livelihood by means of self-employment.
3. The complainant visited the site and on enquiry was assured by the Opposite Party that it had all the rights over land and were possessing all the necessary permissions from Government/Authorities to construct the Complex.
4. The Complainant believing the representations of OP, applied for allotment of a shop vide application dated 29.07.2006 in the said project. Vide letter of allotment dated 21.02.2007, the complainant was allotted a unit bearing no. GF-09, on ground floor having an area of 594.21 square feet in the project “Park Street Commercial Plaza’, situated in Sector -19, Main National Highway No.1, Sonipat, Haryana (ID No. KMC-10181) for a total consideration of Rs. 28,22,497.50 (Rupees Twenty Eight Lakhs Twenty Two Thousands Four Hundred Ninety Seven and Fifty Paisa).

 

5. It is alleged that after booking of the unit and before the date of allotment, the opposite party without consent of the complainant sent a letter dated 11.01.2007 increasing the price of the unit under the guise of air-conditioning of mall stating that they would be charging an ‘additional charge of Rs. 250 per sq. feet’.
6. The Complainant has paid a total amount of Rs.22,98,698/- (Rupees Twenty Two Lakhs Ninety Eight Thousand Six Hundred Ninety Eight) which is more than 80% out of the total consideration amount.
7. It is also alleged that the Opposite Party had promised to complete the construction and hand over the possession of the unit alongwith all amenities within a period of 24 months. However, the project was getting delayed and delayed indefinitely and even after more than 15 years, the Opposite Party has neither completed the construction nor delivered the possession of the unit to the Complainant.
8. The Opposite Party had sent an Agreement on 30.08.2010 to the Complainant, the Complainant did not sign the agreement as the terms and conditions contained therein were highly biased and unilateral, completely favoring the Opposite Party.
9. In view of the illegal acts of the Opposite Party, complainant was no more interested in getting the unit, but wanted to get back his money with interest and hence sent a legal notice dated 29.04.2019 was sent to OP to refund the amount of Rs.22,98,698/- (Rupees Twenty Two Lakh Ninety Eight Thousand Six Hundred Ninety Eight) along with interest @ 24% per annum from the date of the receipt of the respective payments.
10. It is prayed that Opposite party be directed to pay a sum of Rs. 85,70,154/- (Rupees Eighty Five Lakh Seventy Thousand One Hundred Fifty Four) alongwith pendent lite and future interest @24% p.a.  Opposite party also be directed to pay a compensation of Rs. 5,00,000/- (Rupees Five Lakh) for mental agony and a sum of Rs. 2,00,000/- (Rupees Two Lakh) towards litigation costs.
11. Notice of the complaint was issued to OP, OP entered appearance and filed reply opposing the complaint on various grounds inter alia that complainant is not a ‘consumer’ under the Consumer Protection Act. It was alleged that complainant has purchased the unit for commercial purposes and to invest in real estate for gains and profits.  That being the intention, the Complainant does not come within the purview of the CPA, 2019. It was also alleged as he failed to make payments as per the payment schedule, the complainant was a willful defaulter.
12. It was alleged that the OP is not guilty for deficiency in services.  It was also alleged that OP issued allotment letter as per the Advance Registration Form (in short ARF) within 6 months of the ARF. It was also stated complainant has breached the contractual obligations. Parties were bound by the terms of Advance registration form. Complaint was under an obligation to make timely payment and as per Clause 8 of the letter of Allotment, the allotment of the commercial unit was to be cancelled if the amount payable towards the sale-price remained or unpaid within the stipulated time, time being the essence.
13. It was also alleged that time was the essence of the agreement and as per Article 2.3 of the Builder Buyer’s Agreement, the timely and due payment of dues is a pre-condition to the agreement and in the event of the delay on the part of the timely payment the agreement could be revoked by the OP Company. As per Article 4.3, the handing over the shop/unit was subject to fulfillment of all the conditions from and on the part of the Complainant.  It was also submitted that as per Article 13 the Builder buyer agreement, the agreement was subject to cancellation at the option of the OP Company in the event of befalling of the contingency as spelled out under Article 2.3 and 2.4 of the agreement.
14. It was also alleged that this Commission does not have pecuniary jurisdiction and complainant has arbitrarily claimed exorbitant amount.  It was denied that the Opposite Party was liable to refund Rs. 85,70,154/- (Rupees Eighty Five Lakh Seventy Thousand One Hundred Fifty Four) to the     Complainant with interest @24% p.a. and pay compensation and litigation expenses. It was also alleged that parties had agreed by terms of Advance Registration form that OP had the discretion to revise charges on account of EDC and fire safety. It was alleged that OP received Rs.22,66,718/- (Rupees Twenty Two Lakh Sixty Six Thousand Seven Hundred Eighteen) till date against the total sale consideration of Rs.54,592.63/- (Rupees Fifty Four Thousand Five Hundred Ninety Two and Sixty Three Paisa). It is prayed that the Complaint be dismissed with exemplary costs.
15. 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.
16. We have heard the Ld. Counsel for Parties and perused the evidence and material on record as well as their written arguments.
17. The fact that complainant booked a shop in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the allotment letter dated 21.02.2007, Registration form, builder buyer agreement dated 30.08.2010. Receipts of payment Rs. 22,98,698/- (Rupees Twenty Two Lakhs Ninety Eight Thousands Six Hundred Ninety Eight) the legal notice. The receipts were not controverted by OP.
18. 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. 22,98,698/- (Rupees Twenty Two Lakhs Ninety Eight Thousands Six Hundred Ninety Eight) to the OP but OP failed to deliver the unit. It was also argued that the Builder-Buyer Agreement dated 30.08.2010 was totally one sided in favour of OP. It was also alleged on behalf of complainant that OP had promised to complete the construction and hand over the unit within 24 months from the date of the letter of allotment dated 21.02.2007 however even after more than 15 years, OP has neither completed the construction nor handed over possession of the unit which amounts to deficiency in service. It was also alleged that OP had without the consent of complainant  vide letter dated 11.01.2007 increased the price of unit. It was also argued that the builder/OP thus failed to comply with  the terms of agreement. 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.
19. 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.
20. On the other hand it was contended on behalf of the OP that the complainant was a defaulter in making payments and had refund to sign the builder buyer agreements. It was alleged that as per the terms of the agreement OP could revoke the agreement in case timely payments were not made. It was further 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.
21. After giving our careful thought to the arguments advanced by Ld. Counsels for parties, we are of the view that admittedly, there has been inordinate delay in handing over the possession of the unit/shop in question from the date of allotment letter dated 21.02.2007, which amounts to deficiency in service.
22. 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.
23. 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.
24. 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 shop was handed over to her, the complaint is within the period of limitation.
25. 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 shop 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.
26. We also agree with contention of complainant that the agreement was one sided as even though OP was not developing the project it had reserved the right to cancel the allotment  if there was default in payment. We also find merits in the contention of complainant that OP arbitrarily increased the price of unit under the guise of air-conditioning of the mall. It was also arbitrary on behalf of OP to charge interest @21% p.a. on delayed payment without completion of the project. It was alleged that complainant was not interested in a unit/shop in another project.
27. For the foregoing reasons we hold OP/TDI Infrastructure Limited guilty of deficiency in services and unfair trade practices. We accordingly direct OP/TDI Infrastructure Limited to refund the amount Rs. 22,98,698/- (Rupees Twenty Two Lakhs Ninety Eight Thousands Six Hundred Ninety Eight) to the complainant with interest @ 9% p.a. from the date of each deposit. OP is also liable to pay compensation of Rs. 2,00,000/- (Rupees Two Lakh) for mental agony and harassment caused to the complainant and Rs. 50,000/- (Rupees Fifty Thousand) as cost of litigation, within  4 weeks of the receipt of the order, failing which OP will be liable to pay interest @18% p.a. till realization.

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                                                                                            SHEKHAR CHANDRA 

Mmeber                                                                                                   Member