Delhi

New Delhi

CC/344/2018

Savita Aggarwal - Complainant(s)

Versus

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

10 May 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.344/2018

IN THE MATTER OF:

 

 MRS. SAVITA AGGRAWAL.

W/O RAM GOPAL

R/O 946/8, GOVIND PURI, KALKA JI,

NEW DELHI-110019                                         ....COMPLAINANT-1

 

MR. ANKUSH BHOSIE

S/O SH. RAMACHANDRA

R/O 914/8, GOVIND PURI, KALKA JI.

NEW DELHI-110019                                         ....COMPLAINANT-2

 

 

                                      VERSUS

 

TDI INFRASTRUCTURE PVT. LTD

(FORMELY INTIME PROMOTERS (P) LTD

THROUGH ITS DIRECTOR

REGD OFF AT : 9, KASTURBA GANDHI MARG

NEW DELHI-110001                     

 

ALSO AT:

G-7, GROUND FLOOR,

CONNAUGHT CIRCUS

(OPPO MARDAS HOTEL BLOCK)

NEW DELHI                                                              ....OPPOSITE PARTY

 

Quorum:

 

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

 

                                                                                                                                     Date of Institution:-05.09.2018                                                                                                                                                                            Date of Order   : -   10.05.2023.

                                   

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

 

1. The present complainant has been filed under Section 12 of Consumer Protection Act, (in short CP Act) 1986 against the Opposite Party (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case are that in the year 2006 the complainants intended to start business and they had purchased a unit/ shop no. SF-41 admeasuring 312 Sq. fts, in the project of OP namely "Rodeo Drive Mall" situated at TDI City, Kundli, Sonepat, Haryana. That the total cost of the said unit was Rs.12,48,000/- (Rupees Twelve Lakhs Forty Eight Thousand only). As per the Agreement "time was the essence" and the opposite party was required to hand over the possession of the said shop in a reasonable time. OP issued letter of Allotment dated 14.12.2006.
3. It is further alleged that on the representations of the opposite party, the complainants had paid a sum of Rs.9,98,800/- (Rs. Nine Lakhs Ninety Eight Thousand Eight Hundred only) to OP till April, 2010 against the total consideration price of the Rs.12,48,000/- (Rupees Twelve Lakh Forty Eight Thousand) i.e. ¾ of the total cost price. However till 2010 no work was started at the above site by the opposite party. It is also alleged the opposite party had also not made any demand of payment in these years as the delay was on the part of the opposite party.
4. It is further alleged that since there was no response from the opposite party the complainant visited to the site and was surprised to see that there was no shop numbered as SF-41 in the said project. That when the complainant inquired about the said fact from the officials of the opposite party they apologized and offered to refund the entire amount invested with interest.
5. It is further alleged that a Legal Notice dated 21.05.2018 was sent to the opposite party calling upon it to refund the entire amount i.e. Rs.9,98,800/- (Rs. Nine Lakhs Ninety Eight Thousand Eight Hundred only) within 15 days of receipt of the said Legal Notice. The opposite party was also called upon to pay compensation to a tune of Rs.5,00,000/-  to the complainant for mental agony and harassment. However despite receiving the legal notice the opposite party has not refunded the amount of complainant which amounts to unfair trade practice and cheating. It is also alleged that this Commission has got territorial jurisdiction to decide and try the present complaint and the complaint has been filed within limitation period.
6. It is prayed that OP be directed to refund Rs.9,98,800/- (Rupees Nine Lakhs Ninety Eight Thousand Eight Hundred only) with the interest of Rs.24% per annum from the date of deposit till the realization. Opposite party be also directed to pay/ compensation / damages of Rs.5,00,000/- (Rupees Five Lakh) for mental agony/ harassment caused to complainant and litigation expenses of Rs.25,000/- (Rupees Twenty Five Thousand).
7. Notice of the complaint was issued to OP, whereupon OP entered appearance and filed written statement contesting the complaint on various grounds inter alia that in the year 2006, Sourabh Kr. Gupta (erstwhile purchaser) approached the Opposite Party through an independent broker Pragati Estate to investments in the commercial project of OP "Rodeo Drive Mall" at TDI City, Kundli Sonepat and deposited Rs.2,50,000/- (Rupees Two Lakh Fifty Thousand) towards the booking amount. An advance registration form was executed.
8.  It was further alleged that the Opposite Party in accordance with the terms and conditions booking had issued the Letter of Allotment dated 14.12.2006 to the erstwhile purchaser, thereby allotting a commercial shop bearing no SF-41, admeasuring 312 Sq ft.in Rodeo Drive Mall at TDI City, Kundli, Sonepat.
9. The erstwhile purchaser alongwith Mrs. Savita Aggarwal (Complainant) approached the Opposite Party seeking to transfer the property in question in the name of the Complainants. Opposite Party had approved the transfer of the property in the name of the Complainants and also transferred the allotment dated 14.12.2006. It was further alleged that the terms and conditions of allotment letter provide that  exclusive jurisdiction vested with the Courts of Haryana.
10.  It was alleged that due to complainants failure to make payments in terms of the agreed schedule of payments, the Opposite Party was constrained to issue demand letters dated 05.01.2010, 30.01.2010, 28.04.2010, 17.05.2010, 03.07.2010.
11.  It was also alleged that the shop in question could not be constructed on account of change in layout plan by the authority. The Opposite party being a customer friendly organization is still ready to allot alternative shop to the Complainants in the same mall.
12. It was further alleged that this forum did not have the pecuniary jurisdiction to entertain the present Complaint as the relief claimed by the Complainants exceeds 20 lakhs. It was further submitted that the parties had agreed that the exclusive jurisdiction for any disputes inter-se shall vest with the Courts of Haryana.
13. It was also alleged that the complaint is barred by limitation as it is the case of the Complainants that in 2010 they allegedly learnt that no construction had commenced, and sought refund from the Opposite Party. Thus the cause of action if any arose in the year 2010 itself. The limitation prescribed under the Limitation Act, 1963 for recovery of amounts is 3 years and as such the present dispute is barred by limitation.
14. It was further alleged that complaint is not maintainable as transaction is of a commercial nature. Admittedly the Complainants had invested in the commercial shop bearing SF-41. The complainants in the present case failed to plead that the property was purchased by the Complainants for earning livelihood.
15. It was alleged that as per the Agreement the construction of the Shop in question was to be completed within a period of three years with a six months grace period, the Agreement also postulates for payment of penalty in case the Opposite Party / developer fails to deliver the possession of the Shop in question within the time period as specified in Clause (c) as such, it cannot be said that time is of the essence of the Agreement. It was prayed that the complaint be dismissed.
16. The complainants thereafter filed rejoinder reiterating therein the averments made in the complaint and denying all the allegations made in the written statement. Both parties thereafter filed their evidence by affidavits.
17. Complainant relied upon the Advance Registration Form (ARF in short) Ex W1/1, application for transfer of registration Ex W1/2. The allotment letter Ex W1/3. The receipts of payments CW1/4 Colly, copy of layout plan CW1/5. The legal notice and its postal receipts CW 1/6 to CW1/9.  On the other hand the OP relied upon ARF transfer application, allotment letter, demand letters.
18. We have heard the Ld. counsels for parties and perused the record.
19.  As regards the objection taken by OP that this Commission does not have pecuniary jurisdiction. It is to be noted that complainant has claimed refund of Rs.9,98,800/- (Rupees Nine Lakh Ninety Eight Thousand Eight Hundred) and compensation of Rs.5,00,000/- (Rupees Five Lakh).
20. In this regard Section 11 of the Consumer Protection Act, 1986 which relates to jurisdiction of District Forum provides that District Forum has jurisdiction to entertain complaints where value of goods and services and compensation does not exceed 20 Lakhs. In view thereof, the said contention of OP stands rejected.
21. As regards the next contention of OP that complaint is not maintainable as transaction is of commercial nature. 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 or that transaction was of commercial nature. 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 reject the same as being without any merit.
22. As regards the contention of OP that this Court does not have the territorial jurisdiction. It is to be noted that Section 11 of the Consumer Protection Act, 1986 which relates to jurisdiction of District Forum provides as follows:
23. A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part, arises.

 

Thus as OP works for gain within the jurisdiction of this Forum/Commission, we are of the view this Commission has territorial jurisdiction to adjudicate the complaint. The said contention also stands rejected being without merits.

23. The fact that complainants 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 advance registration form. The application for transfer of registration in the name of complainants, allotment letter dated 14.12.2006, receipts of payments of Rs.9,98,800/- (Rupees Nine Lakh Ninety Eight Thousand 

 

Eighty Hundred) Colly, layout plan, legal notice and its postal receipts. It was also contended that the shop in question never existed in the layout plan of OP.

 

24. It was contended on the behalf of the complainant that OP was deficient in its services. It was also submitted that complainant had paid Rs.9,98,800/- (Rupees Nine Lakh Ninety Eight Thousand Eight Hundred) to the OP  for the shop against the total cost of Rs.12,48,000/- (Rupees Twelve Lakh Forty Eighty Thousand) i.e. ¾ of the total price but OP failed to deliver the shop in question within the stipulated period and till 2010 no work was started at the site. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service.  It is to be noted that OP had stated in its written statement that shop in question could not be constructed due to change in the layout plan by the authority, however no documents was filed in this regard. 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.

 

 

25. 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.

 

26. On the other hand it was submitted on behalf of the OP that complainant failed to make payment on time as per the schedule and various demand letters were issued. It was also alleged that shop in question could not be constructed due to change in layout plan by authority and OP had offered an alternate shop. It was also alleged that time was not the essence of the contract. 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, 2019 which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.

 

 

27.  Counsel for complainant however submitted that OP neither refunded the amount paid nor offered any alternate shop but kept demanding amount, penal interest. It is pertinent to note that no document has been filed by OP to show that an alternate shop was offered.

 

28. 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.

 

 

29. 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.

 

 

30. 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.

 

31. 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 in question was handed over to them, the complaint is within the period of limitation.
32. As regards the contention of OP that complaint is not maintainable. 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.

 

33. We thus, hold that OP/TDI Infrastructure Private Limited  guilty of deficiency in services. We accordingly direct OP/TDI Infrastructure Private Limited to refund the amount Rs.9,98,800/- (Rupees Nine Lakh Ninety Eight Thousand Eight Hundred) to the complainants with interest @ 9% p.a. from the date of each deposit till realization within a period of 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 12% p.a. till realization. We also award Rs.1,00,000/- (Rupees One Lakh) as compensation to complainant for mental and harassment and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation.

A copy of this order be sent/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

    (Member)                                                                                                                                             (Member)