Delhi

East Delhi

CC/33/2017

SANJEEV GOEL - Complainant(s)

Versus

SAMIAH INTER. - Opp.Party(s)

06 Sep 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 33/17

 

Shri Sanjeev Goel

S/o Shri Kulbhushan Goel

R/o D-3/2, Ground Floor

Model Town- III, Delhi                                               ….. Complainant

Vs.     

M/s. Samiah International Builders Pvt. Ltd.

Having its Regd. Off. At F-6

DDA Commercial Complex

Main Drive, Vasundhara Enclave

Delhi – 110 096

Though its Managing Director/Authorized Signatory

 

Corporate Office at:

A-35, Samiah House

Sector-63, Noida – 201 305, UP                                          …Opponent

 

 

Date of Institution: 19.01.2017

Judgement Reserved on: 06.09.2019

Judgement Passed on: 11.09.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Shri Sanjeev Goel against           M/s. Samiah International Builders Pvt. Ltd. (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that when the complaint was at the admission stage, complainants moved an application under Order VI Rule 17 for amendment of the complaint.  Alongwith the application, he filed the amended complaint.  Since the complaint was at the initial stage, the amendment was allowed and the amended complaint was taken on record.  Thus, the facts of the amended complaint are stated in brief. 

            The complainant submitted an application with M/s. Samiah International Builders Pvt. Ltd. (OP) on 18.06.2012 and booked a shop no. 136 admeasuring 125 sq. ft., situated at the first floor in the commercial complex known as “Business Park”, Rudrapur, Uttrakhand, and paid a sum of Rs. 60,000/- vide cheque no. 745819 dated 18.06.2012, drawn on ICICI Bank, Model Town Branch, Delhi. 

            This shop is stated to have been booked for personal use as       father of the complainant was interested to start the business of Photostat, lamination, books, copies and other stationary for the children as and when the same was allotted to them and to shift there permanently with his wife keeping in view the requirements of them.    

            Payment schedule given by OP to the complainant was as follows:-

S.No.	Schedule	Demand (%)
	Received amount	10
	Within 30 days of booking	40
	On start of foundation	7.5
	On start of ground floor slab	7.5
	On start of 2nd floor slab	7.5
	On start of 4th floor slab	7.5
	On start of top floor slab	7.5
	On start of finishing	7.5
	On offer of possession	5

 

On submitting the further documents, OP agreed to sell the said shop for Rs. 5,50,501/- (Rs. 5,34,000/- @ Rs. 4,272/- per sq. ft. + service tax of Rs. 16,501/-), being the full and final sale consideration of the said shop.  The complainant paid the following amount to OP. 

 

Cheque no. and date	Name of the bank	Amounts (Rs.)
745819 dated 18.06.2012	ICICI Bank	60,000/-
047158 dated 07.07.2012 Vide receipt no. 12770 dated 07.07.12	HDFC Bank	2,05,000/-
257647 dated 04.10.2012 Vide receipt no. 13148 dated 03.10.12	Yes Bank	40,000/-
257650 dated 09.12.2012	Yes Bank	11,129/-
257653 dated 02.02.2013	-	28,000/-
257654 dated 20.02.2013	-	22,000/-
257655 dated 02.03.2013	-	5,459/-
	Total	3,71,588/-

 

On 25.08.2012, OP issued letter of allotment to the complainant allotting shop no. F-136 on the first floor, admeasurinmg 125 sq.ft./11.61 sq.mt. in the “Business Park”, Rudrapur, Uttrakhand.  On 03.10.2012, Agreement was signed and executed by OP in favour of the complainant in respect of the said shop. 

As per terms and conditions of the agreement, OP was supposed to give the possession of the shop within 30 months from the date of start of construction activity and a buffer period of 6 months will be added subject to force major conditions beyond the control of the company.  Beyond       36 months, the company assured to give compensation @ Rs. 5/- per sq. ft. on saleable area, but not to exceed 5% of the agreed cost.    

It was stated that possession of the shop was to be given by OP by August 2015.  On 05.09.2015, the complainant visited the office of OP in respect of issuing of possession letter and handing over the possession of the allotted shop and was assured that possession of the shop and possession letter will be issued to him within a couple of months.   On 20.12.2015, the complainant was assured that he will get the possession of the booked shop by June, 2016.  He visited the office of OP several times and sent emails also, but they have not paid any heed to the request of the complainant. 

Thus, the complainant have stated that he has suffered mental agony and harassment.  There has been deficiency in services on the part of officials of OP.  Hence, he has prayed for directions to OP to handover the possession of the booked shop bearing no. F-136, in Business Park, Kashipur Road, Rudrapur, Uttrakhand alongwith interest @ 18% p.a. for the delayed period or to refund the deposited amount of Rs. 3,71,588/-  with interest @ 18% p.a from the date of deposit i.e. 18.06.2012; compensation @ Rs. 5/- per sq. ft. for the delayed period as agreed and Rs. 6,00,000/- on account of  mental tension, agony, torture and harassment and Rs. 25,000/- towards the cost of litigation.   

3.         In the reply filed on behalf of M/s. Samiah International Builders Pvt. Ltd. (OP), they have stated that the complaint was time barred; the complainant was not consumer under the Consumer Protection Act and the complainant himself was defaulter.  They have denied other facts stated in the complaint.   

4.         Complainant has filed rejoinder to the WS of M/s. Samiah International Builders Pvt. Ltd. (OP), wherein he has controverted the pleas taken in the WS and reasserted his pleas.

5.         In support of his complaint, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint.  He has also got exhibited copy of application (Ex.CW-1/1) copy of payment schedule (Ex.CW-1/2), copy of letter dated 18.06.2012 (Ex.CW-1/3), copy of cheque dated 18.06.2012 (Ex.CW-1/4), copy of receipt dated 18.06.2012 for Rs. 60,000/- (Ex.CW-1/5), copy of receipt no. 12770 dated 07.07.12 (Ex.CW-1/6) copy of letter dated 09.08,12 (Ex.CW-1/7), copy of allotment letter (Ex.CW-1/8), copy of flat buyer agreement (Ex.CW-1/9), copy of receipt dated 03.10.2012 (Ex..CW-1/10), copy of receipt for Rs. 11,129/- and for Rs. 28,000 (Ex.CW-1/11& 1/12), copy of receipt for Rs. 22,000/- and for Rs. 5,459/- (CW-1/13 and 1/14), copy of letter dated 04.03.2013 (Ex.CW-1/15), copy of statement of account (Ex.CW-1/16) and copy of legal notice and postal receipts (Ex.CW-1/17 to 1/23).    

            In defence, M/s. Samiah International Builders Pvt. Ltd. (OP) have examined Shri Jamil A. Khan, Managing Director of OP, who have also deposed on affidavit.   He has also narrated the facts which have been stated in the WS. 

6.         We have heard Ld. Counsel for the parties and have perused the material placed on record.  It has been argued on behalf of M/s. Samiah International Builders Pvt. Ltd. (OP) that this forum was not having jurisdiction as the shop was booked in the project situated at Kashipur Road, Uttrakhand as well as the shop was booked from their Noida office.  All receipts were issued from there.  The payment was received at Noida office itself.  Further, the complainant was not “consumer” as the shop was purchased for “commercial use”. 

            On the other hand, Ld. Counsel for complainants have argued that the complaint was not time barred as M/s. Samiah International Builders Pvt. Ltd. (OP) failed to deliver the possession which amounts to continuing “cause of action”.  With regard to the second argument of jurisdiction, counsel for complainant have argued that their registered office was at Vasundhara Enclave, Delhi and even the agreement was executed at Delhi.  To the third argument that the complainant was not “consumer” as the shop was purchased for commercial use, he has argued that the complainant have purchased the shop for his personal use. 

            To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of Shri Jamil A. Khan who has been examined on behalf of OP as well as Shri Sanjeev Goel (complainant).  In the testimony of Shri Jamil A. Khan, it is noticed that he has taken the same plea which have been stated in his reply. 

On the other hand, the complainant Shri Sanjeev Goel has filed documents such as copy of application (Ex.CW-1/1) copy of payment schedule (Ex.CW-1/2), copy of letter dated 18.06.2012 (Ex.CW-1/3), copy of cheque dated 18.06.2012 (Ex.CW-1/4), copy of receipt dated 18.06.2012 for Rs. 60,000/- (Ex.CW-1/5), copy of receipt no. 12770 dated 07.07.12 (Ex.CW-1/6) copy of letter dted 09.08,12 (Ex.CW-1/7), copy of allotment letter (Ex.CW-1/8), copy of flat buyer agreement (Ex.CW-1/9), copy of receipt dated 03.10.2012 (Ex..CW-1/10), copy of receipt for Rs. 11,129/- and for Rs. 28,000 (Ex.CW-1/11& 1/12), copy of receipt for Rs. 22,000/- and for Rs. 5,459/- (CW-1/13 and 1/14), copy of letter dated 04.03.2013 (Ex.CW-1/15), copy of statement of account (Ex.CW-1/16) and copy of legal notice and postal receipts (Ex.CW-1/17 to 1/23).  From the documents on record, it is evident that they have booked the shop, the possession of which was to be delivered by OP.  Thus, the evidence on record is sufficient to show that complainants has booked the shop with M/s. Samiah International Builders Pvt. Ltd. (OP) by paying a total amount of               Rs. 3,71,588/-.  M/s. Samiah International Builders Pvt. Ltd. (OP) have issued receipts and have executed the buyer agreement. 

            It further states that the shop will be handed over within 36 months.  It was further agreed that the allottee was to be paid compensation @ Rs. 5/- per sq. ft. on saleable area, but not to exceed 5% of the agreed cost, but not applicable with any other scheme.  Though, the evidence on record is sufficient to connect M/s. Samiah International Builders Pvt. Ltd. (OP) for having entered into an agreement for giving possession of the shop to the complainant who have made payment of Rs. 3,71,588/- out of                  Rs. 5,34,000/-, however, the pleas which have been made on behalf of         M/s. Samiah International Builders Pvt. Ltd. (OP) in respect of jurisdiction, limitation and complainant not “consumers” have to be dealt with.

            Firstly, with regard to the jurisdiction, it is the case of M/s. Samiah International Builders Pvt. Ltd. (OP) that this forum have no jurisdiction as the shop was booked in their project at Rudrapur, Uttrakhand.  Further, all transaction were made at Noida.  No transaction was made at Delhi.  No doubt, the shop was booked in the project at Rudrapur and the transactions were made at their corporate office at Noida, only one of the documents viz. Buyer Agreement, if looked into, it is noticed that this agreement was executed between M/s. Samiah International Builders Pvt. Ltd., a company having its registered office at F-6, DDA Commercial Complex, Vasundhara Enclave, Delhi – 110 096 and Mr. Sanjeev Goel (herein complainant).        In the presence of this very document i.e. Buyer Agreement, which was executed between M/s. Samiah International Builders Pvt. Ltd., a company having its registered office at F-6, DDA Commercial Complex, Vasundhara Enclave, Delhi – 110 096 and Mr. Sanjeev Goel, it cannot be said that this forum was not having jurisdiction to entertain the complaint.  By showing the registered office of M/s. Samiah International Builders Pvt. Ltd. (OP) at F-6, DDA Commercial Complex, Vasundhara Enclave, Delhi, the cause of action have arisen within the jurisdiction of this forum.  Thus, there is no force in the arguments of Ld. Counsel for M/s. Samiah International Builders Pvt. Ltd. (OP) that this forum was not having jurisdiction.           

            Coming to the second argument that the complaint was barred by limitation, it is settled law that where there has been delay in giving the possession, it amounts to continuing “cause of action”.  In the present complaint, the complainant have booked the shop in the year 2012 and Buyer Agreement was executed on 03.10.2012 with the condition that the possession will be handed over which may take about 36 months.  When the possession has not been handed over within the stipulated period inspite of having made visits by the complainant and sending them emails, certainly, it amounts to continuing “cause of action”.  Thus, there is no force in the arguments of Ld. Counsel for M/s. Samiah International Builders Pvt. Ltd. (OP) that the complaint was time barred.  This argument of OP also goes.

            Coming to the third and the final leg of arguments that the complainant was not “consumer”, the plea taken on behalf of M/s. Samiah International Builders Pvt. Ltd. (OP) have been that the shop was booked for commercial use.  No doubt, the shop was booked in a commercial complex, but the fact that the same was booked for personal use as stated in the complaint and reiterated in the testimony of the complainant, the version of the complainant has to be relied upon in the absence of any contrary evidence on record.  Therefore, it cannot be said that the shop in question was for commercial use and the complainant was not “consumer”.  This argument of Ld. Counsel for M/s. Samiah International Builders Pvt. Ltd. (OP) also goes. 

            When all the pleas of M/s. Samiah International Builders Pvt. Ltd. (OP) do not stand, the testimony of the complainant has to be relied upon.  Thus, from the testimony of the complainant, it comes out that the complainant having booked the shop for the personal use of his father, did not get the possession within the stipulated period.  Not giving the possession of the shop within the stipulated period, certainly, it amounts to deficiency in services on the part of M/s. Samiah International Builders Pvt. Ltd. (OP).  Having not got the possession within the agreed period, the complainant has suffered mental pain and suffering for which he has to be compensated.

            With regard to the compensation claimed by the complainant @     Rs. 5/- per sq. ft, it is noticed from the testimony of the complainant that complainant have paid an amount of Rs. 3,71,588/- out of Rs. 5,34,000/-.  He did not pay the balance amount of Rs. 1,62,412/- to entitle him for compensation @ Rs. 5/- per sq. ft on account of delayed possession.  No doubt, there has been delay on the part of OP, but complainant having not made the full payment to entitle him for the compensation @ Rs. 5/- per sq. ft, was not entitled for this compensation @ Rs. 5/- per sq. ft on account of delayed possession. 

            In view of the above, we order that complainant be paid the total deposited amount of Rs. 3,71,588/- with interest @ 9% p.a. w.e.f. January, 2016 till realization and Rs. 25,000/- on account of compensation towards mental pain and agony which includes the cost of litigation.  This order be complied within a period of 45 days, if not complied, the amount of compensation of Rs. 25,000/- shall also carry interest @ 9% from the date of order.

Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

(HARPREET KAUR CHARYA)                                                (SUKHDEV SINGH)     Member                                                                             President