Delhi

New Delhi

CC/95/2020

Kanta devi - Complainant(s)

Versus

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

13 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.95/2020

IN THE MATTER OF:

Kanta Devi

D1 170, Pocket 24,

Sector 24 Rohini

Delhi-110085

Email:

VERSUS

TDI Infracrop Limited

Through its Managing Director,

Head Office, TDI Infracorp Ltd,

11 Tolstoy Marg,

Connaught Place,

Delhi-110001

Email:-info@tdiinfracorp.com

Tel-011 43111111

Mob 8800123633                                                                 ....OPPOSITE PARTY

Quorum:

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

                                                                                                                        Date of Institution:-17.09.2020                                                                                                                                                                          Date of Order   : -   13.01.2023

ORDER

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 34(1) and 1(a) (i) R/w Section 2(11) Consumer Protection Act, 2019 (in short CP Act) alleging deficiency of service by Opposite Party (in short OP). 
2. Briefly stated the facts of the case are that the Opposite Party is a Company incorporated under the Companies Act, 1956, the main objective of the Opposite Party is developing and constructing housing societies in Delhi/NCR region.
3. It is also alleged the Opposite Party had advertised about their upcoming project “Waterside Floors in Lake Grove City”, Sonipat, Haryana in the year 2013 being as one of India’s unique project. The Opposite Party through authorized representative approached the complainant and her husband (retired air force personnel) in the first week of April 2013, for the booking of the floor in the above project.
4. It is further alleged that on the false assurance and the false representation of the authorized representative of the opposite party. The complainant signed the Booking Application form and paid Rs. 5,50,000/- (Rupees Five Lakh Fifty Thousand) vide cheque no. 528663 dated 13.04.2013 drawn at State Bank of India to OP which was duly encashed on 01.05.2013.
5. It is further stated that the complainant made the payment of Rs. 17,57,000/- (Rupees Seventeen Lakh Fifty Seven Thousand) till 20.09.2013. The Complainant was provided with the letter of Allotment bearing booking ID KWF2-00030 for flat no. WF-139/FF First Floor having built up area of 1400 sq. feet after a delay of 4 months. It is also stated that the malafide intentions of the Opposite Party is evident from the fact that in the allotment letter there was no mention of the date of possession.
6. It is further stated that the Builder Buyer Agreement is totally a biased agreement in the favour of the Opposite Party as the payment terms, interest on delayed payments are unfair, but Complainant has no choice but to sign the Builder Buyer Agreement under a compulsion.
7. It is further alleged that the Builder Buyer Agreement dated 02.01.2014 for the first time mentioned that the flat will be delivered within 4 years from the date of signing of the Agreement. The complainant was however induced at the time of booking that the property would be delivered within 4 years from the date of booking i.e. 12.11.2013. It is alleged the Builder Buyer Agreement is highly one sided as it provides that the Opposite Party will charge interest on 18% on delayed payments and  gives Rs. 5 sq. feet compensation for delayed possession.
8. It is also alleged the Complainants made of payment more than 95% of the i.e. Rs. 57,87,403/- (Rupees Fifty Seven Lakh Eight Seven Thousand Four Hundred Three) against the total cost/consideration of Rs. 61,72,317/- (Rupees Sixty One Lakh Seventy Two Thousand Three Hundred Seventeen)  but there was no progress pertaining to their tower, which caused mental agony to the complainant.
9. It is further stated that the complainant was thus constrained to send a legal notice to OP  dated 18.07.2019 which was duly served but OP failed give reply. The Complainant was constrained to send another legal notice dated 17.02.2020 which was delivered on 18.02.2020 to OP seeking complete refund.
10. It is prayed that Opposite party be directed to refund of the principal amount Rs. 57,87,403/- (Rupees Fifty Seven Lakh Eighty Seven Thousand Four Hundred Three) alongwith interest of 12% from the date of booking i.e. 13.04.2013 till 13.09.2020 being Rs. 96,71,108.46/- (Rupees Ninety Six Lakh Seventy One Thousand One Hundred Eight and Forty Six Paisa).
11. OP be also directed to pay compensation of Rs. 5,00,000/- (Rupees Five Lakh)  for mental agony, harassment, discomfort and undue hardship caused and omissions on the part of the Opposite Party and litigation expenses of Rs. 2,00,000/- (Rupees Two Lakh). Opposite Party be further directed to refund wrongfully charged taxes and other charges alongwith interest on that amount at a rate of 18% from the date of receipt of the same.
12. Notice of the complaint was issued to OP, OP entered appearance and filed reply opposing the complaint on various grounds inter alia that the project is at final stage. It was also stated that OP will handover the flat/unit to the complainant soon. It was also alleged the project in question is at final stage.it was further stated that due to Covid-19 Pandemic and lockdown as labour had left to their native place, due to non-availability  of the labour it was very difficult to resume the construction activity. It was further alleged Project is funded by Swamih Funds (SBI Cap) under the package given by Government of India to revive the Real Estate Sector in Lockdown which was also monitoring the progress of the project.
13. It was also alleged that there is specific clause 28 in the Buyer’s Agreement i.e. that in case the possession cannot be given on time due to any reason, in that case the OP are committed to pay compensation at the rate of Rs. 5/- per sq. ft. for per month to the complainant for the period of delay.
14. It was further stated the complaint is liable to be dismissed because the Complainant had suppressed and concealed material facts.
15.  It was also alleged that the Complainant is a prospective investor and as per the settled law laid down in Bungaa Daniel Banbu vs. M/s. Sri Vasudeva Constructions and Ors. [SLP(Civil) No. 1633 of 2015], that the prospective investor who purchased the goods for trading is not a consumer within the meaning of the Act.
16. It was further submitted that the Complainant had raised complicated issues which cannot be decided on a summary trial by this Commission. Parties will have to lead evidence on disputed facts which can only be adjudicated by civil court.
17. It was further stated that the Complainant has failed to establish any cause of action in her favour.  It was stated that letter of allotment was issued to complainant of flat no. WF-139/FF in the abovesaid project. It was denied that as per the agreement possession was to be given within 4 weeks of the agreement.
18. It was also alleged that there was no deficiency of service or negligence on the party of the Opposite Party. No act of omission or commission can be attributed to the Opposite Party due to which the Complainant had suffered any loss, mental pain, agony or harassment. It was alleged , in fact, it was the Complainant who was the defaulting party. The complaint being false, baseless, misconceived and without any merits be dismissed.
19. 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.
20. We have heard the Ld. Counsel for Parties and perused the evidence and material on record as well as their written arguments.
21. The fact that complainant booked a flat/floor 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, builder buyer agreement and receipt of payment Rs. 57,87,403/- (Rupees Fifty Seven Lakh Eight Seven Thousand Four Hundred Three). The receipts of the above amount was not controverted by OP.
22. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid more than 95% of the cost of the flat/floor to the OP but OP failed to deliver the property even till filing of the complaint. It was also argued that the Builder-Buyer Agreement dated 02.01.2014 was totally one sided in favour of OP. It was alleged that at the time of booking on 13.04.2013 OP had told that project would be completed within 4 years from the date of booking however  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 4 years from the date of agreement i.e. 02.01.2014, but it failed to do so. 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 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.
23. 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.
24. 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. 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.
25. 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/floor in question i.e. 4 years from the date of agreement 02.01.2014 which amounts to deficiency in service.
26. 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.
27. 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 complainant was justified in claiming refund of the amount deposited by him with compensation.

28. 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 flat/floor was handed over to her, the complaint is within the period of limitation.
29. As regards the contention of OP that complainant 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 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.
31. As regards the contention of OP that complaint is not maintainable, the complainant ought to have filed a civil suit as the complainant raises complicated and disputed facts. 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.
32. 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 @ 18% 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 complainant was forced to pay parking charges of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) even though project was not completed.
33. We thus, hold that OP/TDI Infracorp Limited guilty of deficiency in services. We accordingly direct OP/TDI Infracorp Limited to refund the amount Rs. 57,87,403/- (Rupees Fifty Seven Lakh Eight Seven Thousand Four Hundred Three) to the complainant along with interest @ 12% p.a. from the date of each deposit till realization within a period of 4 weeks from the date of receipt of order. OP is also liable to pay compensation of Rs. 2,00,000/- (Rupees Two Lakh) for mental agony and harassment to the complainant and Rs. 25,000/- (Rupees Twenty Five Thousand) for cost of litigation. In case of delay in the payment beyond 4 weeks OP is liable to pay interest @ 18% p.a.

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)