| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/561/18 Date of Institution:- 17.12.2018 Order Reserved on:- 12.04.2024 Date of Decision:- 20.05.2024 IN THE MATTER OF: Shri Suresh Chander S/o ShriChander Mani Tiwari R/o B-9/134, Sec-3, Rohini, Delhi .….. Complainant VERSUS - Samiah International Builders Pvt. Ltd.
Through its Managing Director ShriJamil Ahmad Khan G-74, First Floor, Samiah Place, SaritaVihar Road, ShaheenBagh, New Delhi – 110025 Also At: Samiah International Builders Pvt. Ltd. Through its Managing Director ShriJamil Ahmad Khan SamiahHoyuse, A-35, Sector-63, Noida (U.P. - 201305 .…..Opposite Party Per Dr.HarshaliKaur, Member - Relying upon the representation and assurances of the OP, the executives, the Complainant in need of urgent accommodation for himself and his family booked a unit, category- Saryu, in the project, namely 'Samiah Lake City, Rudrapur'.On 31.03.2013, he received a letter from the OP, to submit the required documents to regularize his allotment(Annexure C).
- He made further payments per the OP's demands via demand letters towards the alleged developmental work at the project site. He, therefore, made the payment of Rs.1,50,000/- drawn on PNB bank vide cheque no.580813 dated 30.04.2013. The said payment was acknowledged by receipt no.15326, Rs.1,35,043/- by PNB cheque no. 580814 dated 15.05.2014, acknowledged by receipt no.15340., Rs.1,67,521/- by PNB cheque no. 296996 dated 28.11.2013, acknowledged by receipt no.15843 and Rs.40,000/- by Corporation Bank cheque no.521284 dated 22.01.2014 acknowledged by receipt no. 15891. The Complainant has annexed copies of the demand letters and the payment receipts as Annexure C-2 (colly) with his complaint.
- Hence, the Complainant made the total payment of Rs.5,26,301/- by January 2014 as and when demanded by the OP, which was almost half of the cost of the unit booked by the Complainant.
- He further alleges that he contacted the OP to find out the progress of the flat booked by him but did not get any satisfactory reply to his queries. Hence, he personally visited the project site, where he booked his flat in the first week of May 2017, and was astonished to see no marked plot of land or construction of flats.
- The Complainant visited the OP office and inquired about their false promise and shortcomings to which the OP officials and management sought more time to begin constructing the flats. The Complainant, therefore, requested the OP to return the consideration amount paid by him to date.
- Rather than his amount being refunded,the Complainant received a demand letter/ a reminder letter dated 28.05.2017 (Annexure C-3) to pay the total cost of the flat, i.e., Rs.17,75,618/- instead of the agreed amount of Rs.13,00,000/- which was contrary to what was promised at the time of booking the unit in 2013. The Complainant states that in a bid to cheathim further, the OP sent an unsigned agreement dated 10.06.2017 to the Complainant without his consent or knowledge (Annexure C-4).
- Aggrieved and fed up with the delaying tactics and lackadaisical attitude of the OP, the Complainant issued a legal notice dated 08.10.2018 to the OP (Annexure C-5) to no avail.
- When the OP did not resolve the Complainant's grievance, the Complainant filed the present complaint before this Forum, alleging deficiency in service and unfair trade practice U/S 12 of the Consumer Protection Act 1986. He has prayed for the refund of the consideration amount paid by him, i.e., Rs.5,26,301/- along with pendent lite and future interest @ 18% p.a. w.e.f. date of deposit till realization, Rs.5,00,000/- towards mental agony and harassment and Rs.20,000/- towards litigation costs.
- Notice was issued to the OP to file their Reply. The OP raised several preliminary objections in their Replyas below:-
- The Complainant was not a consumer and appeared to be an investor as the property in question is based in Rudrapur, Uttarakhand; hence, the purchase of the present flat was for commercial purposes.
- Challenging the jurisdiction of this Forum to adjudicate the present case, the OP allege that since the OP's office was situated in Noida, the agreement dated 10.06.2017, and all transactions were made in Noida, this Forum lacked the territorial jurisdiction to send the notice in this case.
- As per clause 46 of the agreement mentioned above, any dispute arising between the parties was to be referred to arbitration, and the Complainant approached this Forum to exert pressure and harass the OP.
- Further, the present complaint was not maintainable in The Consumer Forum in view of the Real-Estate and Regulation Act 2016 (RERA) provisions, which came into force on 01.05.2017. The complaint that falls within the ambit of RERA and outside the jurisdiction of any other court should have been raised before RERA, which is a special enactment that is only applicable to real estate projects.
- On merits, the OP stated that the Complainant continuously defaulted in the payments made as per the demand letters, and para 6 of the agreement clearly states that defaulting the payment would lead to a charge of 18% interest p.a. till the date of realization. The OP thus prayed for the dismissal of the complaint with exemplary costs.
- The Complainant filed his rejoinder and affidavit in evidence, reiterating the averments as made in his complaint. The OP filed the affidavit of Jamil A. Khan, Chief Managing Director of the OP, who also repeated the statements made in the OP's Reply.
- Both parties filed their written submissions. We have heard the Ld.counsel of the Complainant,who stated that the case may be decided based on material on record. The OP was granted the liberty to address the final oral arguments within 15 days, which was not availed by the OP hence, the order was reserved.
- We have considered the facts and circumstances of the present case carefully and have perused the documents filed by the contesting parties to corroborate their testimonies.
- We find that the Complainant booked a unit/flat for the total amount of Rs.13,00,000/- in the project being developed by the OP, namely, category- Saryu in 'Samiah Lake City, Rudrapur' in March 2013. The OP requested the Complainant to submit documents so that his allotment could be regularized vide letter dated 31.03.2013 (Annexure C-1). Thereafter, the OP issued demand letters towards the construction-linked payment. The Complainant made the payments as demanded by the OP on dates 16.04.2013, 18.11.2013, and 28.05.2017. By January 2014 he had made the total payment of Rs.5,26,301/- towards his booked flat as demanded by the OP.
- It is alleged by the Complainant that he did not get a clear picture of the onsite construction whenever he inquired regarding the completion of the booked flat. He, therefore, visited the project site and was shocked to find that the construction had not even started at the site. He immediately contacted the OP officials and was informed that more time was needed to begin the construction. The Complainant, therefore, demanded a refund of the amount he had paid from the OP. But no action was taken by the OP to either resolve his grievance or refund his money. Hence, this complaint.
- On the other hand, the OP has raised several preliminary objections. We feel it would be prudent to decidethese preliminary objections before we decide the case on merits.
- The OP states that the Complainant, who has booked a flat in their project, is not a consumer as per the provisions given in Section 2(1) (d) of the Act. Section 2 (1)(d) of the Consumer Protection Act 1986 clarifies the definition of Consumer as below:-
- consumer" means any person who,—(i)buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or(ii)hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;Explanation.— For the purposes of this clause,"commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
- It is an admitted fact that the Complainant had booked the flat after paying the consideration amount, which was partly paid and partly promised under the system of deferred payment by the Complainant amounting to Rs.48,501/- as mentioned in Annexure C-2 (colly), the demand letter 1 dated 16.04.2013 sent by the OP and duly received by them. Hence, the onus to prove that the Complainant was engaged in the commercial purpose of this property lies on the OP, the service provider, as per the landmark judgements passed by the Apex court in Shriram Chits (India) Private Limited, earlier known as Shriram Chits (K) Pvt. Ltd versus Raghachand Associates civil appeal nos. Of 2024 (@ special leave petition (Civilino. 15290 of 2021)decided on10th May, 2024. No cogent evidence has been placed on record to this effect by the OP.
- The OP also questioned the territorial jurisdiction of this Forum to adjudicate the present complaint. Section- 11(2) of the Consumer Protection Act, 1986, clarifies
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,— (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. - Annexure C-3, which is the demand cum reminder letter dated 28.05.2017 sent to the Complainant annexed along with the complaint,clearly reflects that the OP was working for gain from their registered office at Sarita Vihar Road, Shaheen Bagh, New Delhi, which falls well within the territorial jurisdiction of this Forum.Hence, the Complainant filed the present case under the territorial limits provided in the Act.
- The OP also pointed out that any dispute arising between the contesting parties was to be referred to an arbitrator.However, Section 3 of the Consumer Protection Act 1986 clearly states that the Act is not in derogation of any other law but is in addition to the provisions of the other law for the time being in force. Reliance is also placed on the judgement by the Hon'ble National Commission in the case of Aftab Singh v. M/S. Emaar MGF Land Ltd. Anr., III (2017) CPJ 270 (NC),wherein it is held that the provisions of Section 3 of the Consumer Protection Act 1986 are supplementary and additional remedy.
- So far as the present complaint being filed in RERA, the OP has nowhere disclosed if the OP was registered under the provisions of the RERA of Uttarakhand. Hence, we do not find any merit in any of the preliminary objections raised by the OP.
- On merits, it is an admitted fact that the Complainant paid the consideration amount of Rs.5,26,301/- to the OP towards the booked flat in their project in Uttarakhand.The OP, after sending a welcome letter dated 31.03.2013(Annexure C)inviting the Complainant to deposit the documents to regularize his allotment, chose, for reasons best known to them, to delay executing the agreement towards the flat in question. They kept demanding instalments from the Complainant, which the Complainant paid. The OP only sent the one-sided unsigned agreement with the terms and conditions in 2017 to the Complainant, with the certificate issued on 01.06.2017 (Annexure C4). That is after more than four years of the Complainant booking his flat.
- This document in itself clarifies the casual attitude of the OP, who had been enjoying the Complainant's paid amount as and when demanded by the OP without any promise of delivery of the flat in question. This agreement was not signed by the Complainant as the Complainant had already sought a refund from the OP due to their inability to begin construction of the project in which the Complainant has booked a flat. The OP has not filed any cogent evidence to prove that the construction at the project site was ongoing or that they tried to address the Complainant's grievance proactively.
- Therefore, allowing the present complaint,we hold the OP guilty of deficiency in service and unfair trade practice and direct the OP to refund the consideration amount paid by the Complainant, i.e., Rs.5,26,301/- along with interest @ of 9% from the date of filing of the complaint, i.e., 17.12.2018 till realization. No other order as to cost towards compensation as the interest granted in the present complaint shall adequately meet with the ends of justice. The OP shall also pay a sum of Rs.10,000/- towards litigation cost to the complainant.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 20.05.2024.
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