Delhi

North East

CC/94/2022

SADIT INFOTECH PRIVATE LIMITED - Complainant(s)

Versus

PARSVNATH DEVELOPERS LIMITED - Opp.Party(s)

TANYA HARNAL

05 Aug 2024

ORDER

   DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.94/22

 

In the matter of:

	Sadit Infotech Private Ltd., Through its Director  ( Mr. Pankaj Verma) At: C-28, Acharya Niketan, Mayur Vihar, Phase I Delhi 110091	Complainant
	Versus
1.   2.	Parsvnath Developers Ltd.,   Noida Marketing Pvt. Ltd.,   Both at: Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi 110032	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                        DATE OF ORDER  :

20.04.2022 29.04.2024 05.08.2024

 

 

CORAM:

Surinder Kumar Sharma, President

Adarsh Nain, Member

ORDER

Surinder Kumar Sharma, President

The Complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that in March 2005, Complainant had booked a unit in the project of Opposite Party No. 1 namely Mall Eighteen. The said unit was booked by the Complainant for using the same as its office and/or for running a small coaching centre offering technical courses for the purpose of earning livelihood. Complainant stated that Opposite Party No. 1 allotted a shop/unit bearing no. GF 08 measuring about 396 sq. ft. for a total amount of Rs. 47,52,000/- to the Complainant. Complainant stated that the original allottee of the unit in question was       Mrs. Bimla Verma transferred all her rights to the Complainant vide an application dated 29.04.2005. Complainant stated that Opposite Party No. 1 also endorsed the payment receipts amounting to Rs. 4,00,000/- issued in favour of erstwhile allottee i.e. Mrs. Bimla Verma in favour of the Complainant. Complainant stated that he paid a sum of Rs. 9,60,000/- to the Opposite Party No. 1. Complainant stated that Opposite Party No. 1 executed a Flat Buyer Agreement with the Complainant in respect of the said unit. Complainant stated that Opposite Party No. 1 assured the Complainant to handover the possession of the unit to the Complainant within 24 months of the commencement of construction. Complainant stated that in the year 2019 upon visiting the construction site, director of the Complainant came to know that as no construction activity had commenced in respect of the said project by the Opposite Party even after lapse of more than a decade from the date of execution of the Flat Buyer Agreement.  Complainant stated that during the course of period from 2019 to 2021 Complainant through its director made numerous personal visits to the office of Opposite Party for requesting to either refund its money along with interest as per the clause 10 (b) and pay compensation as per Clause 14(b) or complete the construction of the project and handover the possession of the unit to the Complainant but Opposite Party did not entertain any requests of the Complainant. Complainant stated that he made all the efforts but all in vain. Complainant also made a complaint before UP RERA in July 2021, whereby Opposite Party No. 1 admitted the fact that Complainant had paid a sum of Rs. 9,60,000/- for booking the shop/showroom. Hence, this shows the deficiency of service on the part of Opposite Parties.  Complainant has prayed for an amount of Rs. 9,60,000/- i.e. paid by the Complainant along with interest @ 18 % p.a. from the date of deposit i.e. 29.04.2005. Complainant also prayed for an amount of  Rs. 5,00,000/- on account of mental harassment and Rs. 2,00,000/- on account of litigation expenses.

Case of the Opposite Party No. 1

2. Opposite Party No. 1 contested the case and filed its written statement. It is stated that Complainant is not a consumer within the definition of Consumer Protection Act. It is stated that the complaint is not maintainable as the Complainant is not a consumer. It is stated that one Mrs. Bimla Verma booked a property in the project on 22.05.2004 and she deposited a sum of  Rs. 2,00,000/- and for another allotment she deposited Rs. 2,00,000/- on 26.06.2022. Subsequently, Mrs. Bimla Verma was provisionally allotted a shop no. GF-08   (admeasuring 396 sq ft.) on the Ground floor located at plot no. 1A and 1B Block K Sector 18 Noida. Mrs. Bimal Verma transferred her rights in respect of the said shop to the Complainant Company. Thereafter, Complainant paid a sum of Rs. 9,60,000/- towards the said booking and a fresh Shop Buyer Agreement was executed between Complainant Company and the Opposite Party on 06.10.2006. It is stated that New Okhla Industrial Development Authority floated tenders for commercial plots in Sector 18 Noida in 2004 and auctioned plot no. 1 A and 1 B in Block K Sector 18, Noida under the category of Builders plot. The same were allotted in the name of Noida Marketing Pvt. Ltd. and AGK Exim Pvt. Ltd. The possession of the said plots was also handed over to Noida Marketing Pvt. Ltd. and AGK Exim Pvt. Ltd. The Opposite Party approach the Authority for amalgamation of the said two plots and Opposite Party also applied for approval of the building plan. The request for amalgamation of the plots was rejected by the Authority. The High Court of Delhi approved the scheme of amalgamation but the Authority did not acted upon the same as heavy amount was demanded by way of transfer charges by the Authority. The charges were deposited by Noida Marketing on 11.08.2006. The construction were could not be completed due to some circumstances which were beyond the control of the Opposite Party. The allegations of the Complainant have been denied and it is prayed for the dismissal of the complaint.

Rejoinder to the written statement of Opposite Party No. 1

3.  The Complainant filed rejoinder to the written statement of Opposite Party No. 1 wherein the Complainant has denied the pleas raised by the Opposite Party No. 1 and has reiterated the assertion made in the complaint.

Evidence of the Complainant

4. The Complainant in support of its case filed the affidavit of Shri. Pankaj Verma, who is Authorized Representative of the Complainant, wherein he has supported the assertions made in the complaint.

Evidence of the Opposite Party No. 1

5. To support its case Opposite Party No. 1 has filed affidavit of Shri. Rajan Wahal, wherein, he has supported the case of the Opposite Party No. 1 as mentioned in the written statement.

Arguments & Conclusion

6. We have heard the Ld. Counsel for the Complainant. We have also perused the file and written arguments filed by the Complainant and Opposite Party No. 1. None has appeared on behalf of the Opposite Party No. 1 to address the arguments despite grant of opportunities. The case of the Complainant is that the Complainant Company has booked shop/space for using the same as its office and for running a coaching centre for earning livelihood. The case of the Complainant is that the Opposite Party did not handover the possession of the shop in question as per the terms of the agreement and therefore, there is deficiency of service on the part of the Opposite Party.
7. The case of the Opposite Party No. 1 is that the Complainant is not a consumer as defined in Consumer Protection Act. It is also its case that the project could not be completed as there was some circumstances such as approval of plan etc., approval of the amalgamation of the shops in question and also non- availability of the resources/material etc., which was required for completion of the project.  
8. The main issue is that whether the Complainant is a consumer or not as defined in Consumer Protection Act. Admittedly, Complainant is a company and the complaint has been filed one of its Director. The case as revealed from the pleadings and evidence of the Complainant is that the Complainant has booked the shops in question for its office use as well as for using the same for running coaching classes for earning the livelihood. It was the duty of the Complainant to lead evidence that the shops in question were booked for the purpose of earning livelihood. No cogent evidence has been led by the Complainant Company that the said shops were booked for earning the livelihood.
9. Admittedly, Complainant is a Company and the Memorandum of Association is an important and necessary document. The object of formation of the company in the Memorandum of Association. Had there been an objective that the Company/its Directors would earn their livelihood by running coaching classes in the office of the Company, it would have been mentioned in the MoA. In the present case, the Complainant Company has not filed on record the MoA for the reasons best known to the Complainant Company. The MoA would have certainly shown that it was the objective of the Company to earn livelihood by running coaching classes in the office of the Company. Therefore, we are of the considered opinion that the Complainant Company has failed to show that the commercial shops were to be used for using for the purpose of running coaching classes in order to earn livelihood.
10. In view of the above, we are of the opinion that Complainant Company is not a consumer within a definition of Consumer Protection Act. Therefore, the complaint is not maintainable and the same is dismissed.
11. Order announced on 05.08.2024.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Adarsh Nain)		(Surinder Kumar Sharma)
(Member)		(President)