IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:04.09.2014

Complaint Case No. 39/12

In the matter of:            

Sh. Ravinder Aggarwal

S/o Sh. B.K.Aggarwal

R/o H.No. A-14, Acharya Niketen

Mayur Vihar Phase-I

New Delhi-110091

Through Sh. Nitin Saxena

President All India Consumer Education Society (Regd.)

………….Complainant

Versus

M/s Parker Builders Pvt. Ltd.

Having office at 410, D-Mall, Netaji Subhash Place

Pitampura, Delhi-110034

Service through its Managing Director

                    ……….Opposite Party

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

S.A.Siddiqui, Member (Judicial)

JUDGEMENT

1.       This is a complaint filed under Section 12 r.w. Section 17 of the Consumer Protection Act 1986 (hereinafter called the Act) for refund of Rs. 20 Lac with interest @ 18% p.a. and payment of compensation of Rs. 5 Lac and costs of litigation.
2.       Complainant Sh. Ravinder Aggarwal applied for provisional allotment of a commercial shop in OP’s project i.e. Parker Mall, Kundali, District Sonipat, Haryana vide application dt. 20.12.2006. Complainant deposited a sum of Rs. 7.50 Lac through cheque No. 362420 dt. 20.12.2006 drawn on bank of Maharashtra, Mayur Vihar, Delhi.  The amount was deposited against a shop of the size 800 sq. ft. Appx. On atrium floor at basic rate of Rs. 6250 per sq.ft. He made the following payments:-

Receipt No.          Date                  Paid Amount

1. C-252                  25.01.2007         Rs. 7,50,000/-
2. CI-2803               04.10.2008         Rs. 3,75,000/-
3. CI-2227               30.05.2007         Rs. 5,00,000/-
4. CI-2534               22.02.2008         Rs. 3,75,000/-

Total                 Rs.20,00,000/-

Copies of the receipts have been enclosed as annx. B to E respectively.  Thereafter, the respondent vide ref.no. A-1049/1 provisionally allotted the shop no. A-26 admeasuring 800sq.ft. situated at Atrium Floor, Parker Mall Kundali, District Sonepat, Haryana.  Allotment letter is annx. F.  After allotment it was noticed by the complainant that progress of construction was very slow.  After quite some time there was no construction at all.  Therefore, the OP M/s Parker Builders Pvt. Ltd. through its letter dt. 15.11.2010 under reference No. A-1049/1 decided to waive of full interest on the outstanding dues till date payment was not made by the allottee.  However, it was stated the company was making all out efforts to complete the project as early as possible.  But construction got considerably delayed.  At the time of booking complainant was given to understand that project will be completed within 36 months.

1.       In view of the slow progress of the project complainant decided to withdraw the entire deposited amount of Rs. 20 Lac with 18% interest p.a. from the date of the payment of the application money.  Therefore, the complainant sent a representation dt. 28.06.2011 to OP requesting him to cancel the said allotment of the shop and to refund the amount deposited together with interest.  He also demanded compensation to the tune of Rs. 5 Lac. But till date the OP did not reply.  Copy of the representation is annex-H.  On 28.06.2011 complainant through Sh. Nitin Saxena served a legal notice upon the OP, but, OP neither replied the said legal notice nor refunded the amount deposited.   Copy of legal notice is annx. I. Instead of compliance with the legal notice, the OP chose to send its own legal notice dt. 04.06.2011 to the complainant, which has been duly replied by the complainant vide reply dt. 28.06.2011. Copy of the legal notice and its reply are annex. J and K respectively. The complainant on 09.07.2011 also sent reminder to his earlier representation but of no avail.  The copy of the reminder is annex. L.  The complainant also reported the matter to the A.C.P. Economic Offence Wing of Delhi Police on 28.03.2011 and also to SHO P.S., Saraswati Vihar, New Delhi on 02.05.2011, but no action has been taken by the police so far.  Copies of the police complaint are annex. M (Colly) and acknowledgement is annex. N.  Even after lapse of 5-6 years the project could not be completed and possession of the shop was not given by the OP and the purpose of purchase of the shop was defeated which amounts to gross deficiency of service on the part of the OP, it also amounts to indulgence to unfair trade practice. 
2.       The complainant took recent photographs of the building/project and it was found that the OP was wrongly asserting that construction was in full swing. The complainant therefore lost hope in the project and was no more interested in the shop in Parker Mall in Kundali.  When all efforts to get back the money deposited failed, the complainant was compelled to file consumer complaint seeking directions for refund of the deposited amount along with interest, compensation of Rs. 5 Lac and costs to the tune of Rs. 51,000/-.  This Commission has territorial and monitory jurisdiction to entertain the complaint in as much as office of OP is situated in Delhi.
3.       OP filed written statement refuting the complaint allegations.  It was however, admitted that complainant booked shop No. A-26 Atrium Floor, Parker Mall, District Sonepat, Haryana in the project of the OP but the shop was booked in speculation of higher returns, profits/commercial gains and hence the complainant was not a ‘consumer’ within the meaning of section 2 (1) (d) of the Act. It was further maintained that complainant was to make payment of basic sale price of the Rs. 50 Lac and other allied charges towards booked unit.  The payment of the shop was construction Linked Plan as per details below:-

On Application                      :               15% (Rs. 7,50,000/-)

On Bhumi Pujan                    :               10% (Rs. 5,00,000/-)

On Allotment                                :               10% (Rs. 5,00,000/-)

60%                                    :               (6 equal instalments)

On Possession                       :               05% (Rs. 2,50,000/-)

But the complainant committed continuous breach and default in payment of instalments as per schedule of payment option chosen by the complainant despite continuous letters/reminders.  Through letter dt. 21.01.2010, OP made it clear to the complainant that by January, 2010 complainant was liable to pay instalments up to Rs. 32.50 Lac whereas he only paid Rs. 20 Lac.  Through letter dt. 21.01.2010 the OP demanded balance of Rs. 12.50 Lac which the complainant failed to pay.  The OP also sent legal notice through counsel on 04.06.2011 demanding payment of Rs. 22.50 Lac along with interest on delayed payment.  Despite this complainant continued to evade to make any payment/dues in utter breach of his contractual liability.  He also failed to execute seller buyer agreement with the OP despite sending letters dt. 12.08.2008, 31.12.2008, 12.01.2009 and 17.09.2011.

1.       It was further maintained that complainant in order to evade the liability of payment resorted to fraud and uncalled for demands and vide e-mail and letter dt. 06.06.2011 demanded allotment of residential flats/house in a group housing of the OP in place of provisional allotted shop. Not only this, the complainant also wrongfully and with a malafide intention lodged a police complaint to SHO, Saraswati Vihar, New Delhi and to EOW.  The complainant was factually incorrect and malafide having an intention to damage the reputation and goodwill of the OP.  The OP sent out reply to the police through its letter dt. 08.09.2011.
2.       The complainant has taken all necessary steps for completion of the project and has already been issued completion certificate. It was wrong to suggest that there has been any delay in project which can be attributed to the OP. As against this complainant himself was guilty of committing default in payment.  It was also denied the OP waived interest on delayed payment through letter dt. 15.11.2010. The letter was erroneously interpreted by the complainant as the waiver was conditional on making 75% payment.  The complainant had paid only 40% of the cost.  The delay in completion of the project was deliberately alleged to cover up complainants owns default and breach of contractual liability to make timely payment of instalments.  It was alleged that the complainant was never entitled to interest @ 18% p.a. on the deposited amount.  There has been no deficiency in service to the complainant and he is not entitled to refund of Rs. 20 Lac, compensation of Rs. 5 Lac and litigation costs of Rs. 51,000/- as demanded.  The OP filed documents exb.O.P.-1/102 O.P.-1/21 in respect of it’s defence and the complainant failed to controvert the facts shown by the OP.  In view of these facts and circumstances the complaint was without merit and deserves to be dismissed with costs.
3.              The complainant filed rejoinder to preliminary objections as well as on merit.  The complainant maintained that he was very much consumer within the meaning of section 2 (1) (d) of the Act as the commercial shop was never booked for profit/commercial gains.  It was being purchased to earn his livelihood.  He reiterated the complaint allegations.
4.              Parties led evidence through affidavit and documents in support of their case.  OP filed additional evidence by way of affidavit of Sh. Kamal Daulatani at the later stage.  In Para 2 of the affidavit, it was stated that the OP applied for occupancy certificate with respect to said project before the office of the Director General, Town and Country Planning, Chandigarh with application dt. 09.12.2011. The occupancy certificate was ultimately secured on 06.09.2013 from the competent authority which is EX. OP1/24 (Colly) and the latest photographs of the project EX. OP1/25 (Colly) showing the project be completed in all respect.
5. We have heard Sh. Nitin Saxena, AR for the complainant and Sh. Asit Tiwari, Counsel for the OP. 
6. Booking of shop No. A-26, Atrium Floor, M/s Parker Mall, Kundali, District Sonepat, Haryana, on 20.12.2006 at a basic cost price of Rs. 50 Lac has not been disputed.  It is further not been disputed that a sum of Rs. 20 Lac has been paid during the period 25.01.2007 to 04.10.2008.
7.  The Ld. Counsel for the Complainant argued that the shop was booked on 20.12.2006, at the time of booking complainant was given to understand that the shop in question will be completed and delivered within 36 months from the date of provisional allotment. Thus the possession of the shop was to be delivered by the end of 2009, but the project got considerably delayed and the purpose of purchase of the shop got defeated.  Therefore complainant lost hope in purchase of the shop and to begin business to earn his livelihood.  Therefore, he decided to get deposited money refunded along with interest @ 18% p.a., compensation and the costs.  He through various letters/reminders requested for cancellation of the shop and refund of the money. He emphasised that, in case the payment was delayed the OP should have cancelled the provisional allotment and refunded back the money with interest but despite requests, reminders/letters and even oral requests, the OP did not respond.  A handsome amount of Rs. 20 Lac out of total cost of Rs. 50 Lac was deposited.  The project despite all assertions by the OP is not yet complete in all respect.  The complainant therefore had no option but to file consumer complaint for getting justice. 
8. On the other hand Ld. Counsel for the OP argued that the schedule of payment was not followed by the complainant, only the 40% of the payment was made and the complainant defaulted in making payment despite several letters/reminders and despite several requests complainant even did not execute seller buyer agreement with the OP.  The OP therefore forfeited the deposited money due to breach in payment and terms and conditions of the contract.  Dozens of letters were sent during the period of 2008 to 2011.  The legal notice sent by the complainant was duly replied; the OP on it’s behalf also sent legal notice.  Since the money deposited by the complainant was legally forfeited due to breach in payment, the complainant no more remains a consumer and the complaint was liable to be dismissed.  The shop in question was booked with a profit motive and was commercial in nature therefore the complainant was not consumer within the meaning of section 2 (1) (d) of the Act.  The project was completed in all respect in the year 2013 and occupancy certificate was secured by the OP on 06.09.2013 after completion of the project in all respect.  In view of these facts and circumstances there was no deficiency of any kind in providing service to the complainant and the complaint was liable to be dismissed.  So far as preliminary objection of the OP regarding commercial nature of the transaction is concerned, it has been asserted by the complainant that the shop in question was provisionally booked to carry on business to earn livelihood. There is no evidence on record to draw any conclusion otherwise.  Therefore in our considered view the preliminary objection is not sustainable.  The core issue revolves round the refund of the deposited money along with adequate interest, compensation and the costs. 
9. It is not disputed that a sum of Rs. 20 Lac was deposited by the complainant during the period of 25.01.2007 to 04.10.2008 which is 40% of the basic cost price of Rs. 50 Lac of the shop.  The project was to be completed within 36 months i.e. in 3 years meaning thereby the project should have been completed and the delivery of the possession of the shop should have been given by the end of 2009 but the project could not be actually completed by the end year 2012; thus there has been delay of 3 years in completion of the project. Undoubtedly there has been deficiency in service on the part of the OP. There has been no seller buyer agreement between the complainant and the OP.  It was argued on behalf of the OP that the entire amount deposited by the complainant stood forfeited on account of breach in making default in payment by the complainant.  However, the entire amount deposited by the consumer cannot be forfeited. Only a definate percentage such as 15% or 20% may be forfeited in case of breach in making payment.  But, there has been no seller buyer agreement and no provision regarding forfeiture has been brought on record.  Hence, any forfeiture cannot be legally made.  We have however taken judicial notice of the fact that project was completed and occupancy certificate was secured by the OP on 06.09.2013.
10.  In view of the facts, circumstances and legal position we come to the conclusion, that in the larger interest of justice, the money deposited by the complainant should be refunded with adequate interest.  In our considered view adequate interest will be 9% p.a. So deposited sum of Rs. 20 Lac with interest @ 9% p.a. from the date of deposits till the date of actual payment will be refunded to the complainant. Besides, a sum of Rs. 25,000/- will be paid towards compensation and a sum of Rs. 10,000/- towards costs of litigation. 
11. Accordingly, the complaint is partly allowed.  The OP is directed to refund the amount of Rs. 20 Lac with interest @ 9% p.a. from the date of deposits till the date of actual payment.  The OP shall further pay a sum of Rs. 25,000/- as compensation towards mental pain, agony and harassment and Rs.10,000/- towards costs of litigation.
12. The payment shall be made within a period of 30 days from the date of receipt of the copy of the judgment.
13. Let a copy of the judgment be made available to the parties free of cost as per rule and case file be consigned to record room.