Delhi

New Delhi

CC/139/2021

Ashish Kumar - Complainant(s)

Versus

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

03 Mar 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-139/2021

IN THE MATTER OF:

Ashish Kumar,

201, Kanika Maihar Apartment,

Kadamkuan,

Patna-800003,

Bihar                                                                                  ...Complainant

VERSUS

1. TDI Infratech Ltd.

(Formerly Taneja Developers and Infrastructure Ltd.)

Through Mr. Ravinder Kumar Taneja,

Managing Director,

10, Bhagat Singh Marg,

New Delhi, Pin-110001

2. TDI Infrastructure Ltd.

          Through Mr. Ravinder Kumar Taneja,

           Managing Director,

          10, Shaheed Bhagat Singh Marg,

           New Delhi, Pin-110001

         Also at:

          UG Floor, Vandana Building

          11, Tolstoy Marg,

          Connaught Place

          New Delhi-110001                                                   ...Opposite Parties

 

Quorum:

Ms. Poonam Chaudhry, President

Shri Shekhar Chandra, Member

 

                                                                                                                              Date of Institution         :09.08.2021                                                           Date of Order       :03.03.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 34 and 35 of the Consumer Protection Act, 2019 (in short CP Act) against opposite parties (in short OP) alleging deficiency of service.
2. Briefly stated the facts of the case are that the complainant submitted a booking form of purchasing a plot in a township TDI City, Meerut as represented by Taneja Developers and Infrastructure Ltd. (Now TDEI Infratech Ltd.) @ Rs.3750/- sq. yds. alongwith payment of Rs.2,35,000/- (Rupees Two Lakh Thirty Five Thousand Only) through Cheque No. 843824 dated 07.07.2005, Canara Bank, Rajendra Nagar, Patna which was 25% of the total consideration of Rs.9,37,500/- (Rupees Nine Lakh Thirty Seven Thousand Five Hundred Only) for a plot admeasuring 250 sq. yds.
3. The offer and payment was accepted by TDI on the terms and conditions enumerated in the booking form and a receipt bearing No. M/UP-10011 dated 07.07.2005 was issued by TDI Infratech Ltd., accepting the offer and communicating the same.
4. It is alleged that some of relevant terms and conditions of the booking form is as under:

1. That as per Clause “a” the opposite party had agreed that to allot the plot within 6 month of registration.
2. That as per clause c the opposite party had agreed that in case of allotment is made after 6 months of period, the interest of 10% p.a. on the advance till the time of allotment would be paid by him.
3. That Clause d of the terms and conditions stipulated the cancellation procedure at the choice of my client.

5. It is also stated that Taneja Developers and Infrastructure Ltd. did not allot the plot within 6 months, i.e. 06.01.2006, neither it bothered to inform if there was any delay in the allotment.
6. It is also alleged that since there was delay in allotment of the plot, the complainant made several inquiries in writing and spoke to their representatives of OP, showing his willingness to make balance payment and requested to allot the agreed plot, but, except for orally assurance, nothing was given in written.
7. It is further alleged that neither the allotment offer has been given nor the amount received at the time of booking has been refunded by the opposite parties. The complainant as such is no more interested in the property and seeks refund of the principal amount alongwith interest and compensation.
8. The fact that the opposite parties have received the amount of Rs.2,35,000/- (Rupees Two Lakh Thirty Five Thousand) from the complainant by  misrepresentation, which shows that the opposite parties have not only cheated the complainant and misappropriated the amount paid by the complainant, but has also indulged in the unfair trade practices.
9. It is further alleged that as the claim is less than Rs.1 Crore and the Opposite  parties has its registered office within the jurisdiction of this Commission, in view of Section 34(1) and 34(2)(a) of the Consumer Protection Act, 2019, this Commission has the pecuniary and territorial jurisdiction to try and decide the present complaint.
10. It is also stated that the complainant has not filed any other complaint/petition before this Hon’ble Commission or any other Court against the opposite parties for the same cause of action.
11. It is prayed that opposite parties be directed to refund the amount of Rs.2,35,000/- (Rupees Two Lakh Thirty Five Thousand) alongwith interest @18% p.a. on the said amount and be also directed to pay compensation of Rs.5,00,000.- (Rupees Five Lakh) for the financial loss, mental and physical harassment as well as legal expenses, by the complainant.
12. Notice of the complaint was issued to OP. OP did not enter appearance despite service and was proceeded exparte vide order dated 19.07.2022. Complainant filed his evidence by affidavits reiterating therein the averments made in the complaint.
13. We have heard the Ld. Counsel for complainant and perused the evidence and material on record carefully.
14. From the unrebutted evidence of complainant, it has been proved that complainant booked a flat in the project of OP. The complainant relied receipt issued by OP towards the booking amount.
15. It was contended on behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid 25% of the cost of the unit/flat i.e. Rs.2,35,000/- (Rupees Two Lakh Thirty Five Thousand) but OP failed to deliver the plot/property within 6 months from the date of registration as agreed by OP. It was also contented that OP had agreed that in case allotment was made after 6 months interest of 10% would be paid on advance payment/booking amount till allotment. The OP also agreed that in case due to default of OP complainant wanted to withdraw from the project OP would refund the advance of Rs.2,35,000/- (Rupees Two Lakh Thirty Five Thousand) with interest @10% p.a.
16. It was also alleged that Taneja Developers and Infrastructure has been changed to TDI Infratech Ltd. It was alleged that OP neither allotted the plot as agreed within 6 months from the date of booking i.e. 06.01.2006 nor informed the complainant of the delay. 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.
17. 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.
18. After giving our careful thought to the arguments advanced by Ld. Counsel for  complainant, we are of the view that admittedly, there is inordinate delay in handing over the possession of the plot in question which amounts to deficiency in service.
19. 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.
20. 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.

21. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the property was handed over to him, the complaint is within the period of limitation.
22. For the foregoing reasons we thus, hold OP/ TDI Infratech Ltd. guilty of deficiency in services. We accordingly direct OP/TDI Infratech Ltd. to refund the amount Rs.2,35,000/- (Rupees Two Lakh Thirty Five Thousand) to the complainant with interest @ 10% p.a. from the date of deposit, within 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 18% p.a. till realization. We also award Rs. 2,00,000/- (Rupees Two Lakh) as compensation for mental agony and Rs. 50,000/- (Rupees Fifty Thousand) as cost of litigation.

File be consigned to record room along with a copy of the order.

A copy of this order be provided/sent to all parties free of cost. The order be uploaded on the website of this Commission.

 

 

Poonam Chaudhry

                                                        (President)

                                                   

 

 

                               Shekhar Chandra

                                                                                              (Member)