Delhi

East Delhi

CC/34/2017

NISHA VARSHNEY - Complainant(s)

Versus

SAMIAH INTERNATIONAL - 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. 34/17

 

1. Mrs. Nisha Varshney

W/o Shri Akhlesh Kumar Varshney

R/o A-106, Jyoti Super Gardenia

Ahinsa Khand-II, Indirapuram

Ghaziabad

 

2. Mr. Akhlesh Kumar Varshney

S/o Shri G.D. Gupta

R/o A-106, Jyoti Super Gardenia

Ahinsa Khand-II, Indirapuram

Ghaziabad                                                                  ….. Complainants

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 Mrs. Nisha Varshney (C-1) and    Mr. Akhlesh Kumar Varshney (C-2) 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, they 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 complainants submitted an application with M/s. Samiah International Builders Pvt. Ltd. (OP) on 02.07.2012 and booked a shop admeasuring 125 sq. ft., situated at the first floor in the commercial complex known as “Business Park”, Rudrapur, Uttrakhand, in the scheme of down payment plan and paid a sum of Rs. 54,514/- vide cheque no. 674093 dated 02.07.2012, drawn on ICICI Bank, Sector-61, Noida, UP. 

            This shop is stated to have been booked for personal use as       Smt. Nisha Varshney (C-1) was interested to start a business of books and copies for the children of nursery to 10^th class.  The complainants had a plan to start the said business in the said shop as and when the same was allotted to them and to shift there permanently keeping in view the requirements of the complainants.    

            On submitting the further documents, OP agreed to sell the said shop for Rs. 5,45,140/- @ Rs. 4,361/- per sq. ft., being the full and final sale consideration of the said shop.  This amount was paid as per the following details:-

Cheque no. and date	Name of the bank	Amounts (Rs.)
674093  dated 02.07.2012	ICICI Bank Service Tax	52,880/- + 1,634/-
Credit Note  dated 30.07.2012		6,400/-
674096  dated 31.07.2012	ICICI bank	4,85,860/-
	Total	5,45,140/-

 

On 30.07.2012, M/s. Samiah International Builders Pvt. Ltd. (OP) issued a credit note of Rs. 6,400/- being the discount amount.  On 30.07.2012 itself, they issued letter of allotment to the complainants allotting shop no. F-161 on the first floor, admeasurinmg 125 sq.ft. in the “Business Park”, Rudrapur, Uttrakhand.  Memo of Understanding (MOU) was also signed and executed by both the parties on the said date.  They agreed to give the assured return @ 12.5% per month on the paid/deposited amount.  They agreed to give 36 cheques of Rs. 5,678/- by deducting TDS amount of Rs. 568/- in each cheque.  They handed over   26 post-dated cheques of Rs. 5,110/- each (Rs. 5,678/- less TDS of        Rs. 568/-) to the complainant for the assured return.  They promised to give 10 more post dated cheques being the assured return.  They informed that only 25 cheques have been encashed and one cheque has been retuned due to lack of funds.  They promised to give remaining 10 cheques, but failed to do so.  They were supposed to pay a sum of Rs. 5,6780/- to the complainants being the assured return amount.

It has further been stated that on 27.12.2014, Mrs. Nisha Varshney (C-1) deposited a cheque bearing no. 001681 dated 19.12.2014 for         Rs. 5,110/- in her account and the said cheque was returned with the remarks “Funds insufficient”.  She informed the same to M/s. Samiah International Builders Pvt. Ltd. (OP).  They promised to pay the said amount, but till date, no such amount was paid.  On 05.09.2015,              Mr. Akhlesh Varshney (C-2) visited the office of M/s. Samiah International Builders Pvt. Ltd. (OP) in respect of issuing the possession of the shop.  The complainant was assured by the officials of OP that they would get the possession of the said shop within a couple of months. 

The complainant have sent emails in the year 2015, visited their office on 20.12.2015 and 10.07.2016 for possession of the said shop which was assured by OP.  Inspite of that, they have not paid any heed to the request of the complainants.  Thus, the complainants have stated that they have suffered mental agony and harassment.  They have stated that there has been deficiency in services on the part of officials of OP.  Hence, they have prayed for directions to OP to handover the possession of the booked shop bearing no. F-161, in Business Park, Kashipur Road, Rudrapur, Uttrakhand alongwith interest @ 18% p.a. for the delayed period or to pay an amount of Rs. 6,23,577/- (deposited amount of Rs. 5,61,787/- +          Rs. 56,780/- being the amount of assured return of 10 cheques +            Rs. 5,110/- being the amount of dishonored cheque) with 18% interest from the date of deposit i.e. 02.07.2012; compensation of Rs. 7,00,000/- 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; they were not consumer under the Consumer Protection Act and they themselves were defaulters.  They have denied other facts stated in the complaint.   

4.         Complainants have filed rejoinder to the WS of M/s. Samiah International Builders Pvt. Ltd. (OP), wherein they have controverted the pleas taken in the WS and reasserted their pleas.

5.         In support of their complaint, the complainants have examined themselves, Smt. Nisha Varshney (CW-1) and Mr. Akhlesh Kumar Varshney (CW-2).  They have deposed on affidavit.  They have narrated the facts which have been stated in the complaint.  They have  also got exhibited copy of application dated 02.07.2012 (Ex.CW-1/1) copy of receipt dated 02.07.2012 for Rs. 54,514/- (Ex.CW-1/2), copy of letter dated 03.07.2012 (Ex.CW-1/3), copy of letter dated 10.07.2012 (Ex.CW-1/4), copy of credit note dated 30.07.2012 (Ex.CW-1/5), copy of cheque no. 674096 dated 31.07.2012 for Rs. 5,00,873/- and its receipt (Ex.CW-1/6 & 1/7), copy of allotment letter and payment schedule (Ex.CW-1/8 & 1/9), copy of MOU (Ex.CW-1/10), copy of cheque no. 001681 dated 19.12.2014 for Rs. 5,110/- and memo of the bank (Ex.CW-1/11 & 1/12), copy of legal notice dated 07.09.2016 and its postal receipts (Ex.CW-1/12A, 1/13, 1/14 and 1/15) and original courier receipts (Ex.CW-1/16 to 1/18).    

            In defence, M/s. Samiah International Builders Pvt. Ltd. (OP) have examined Shri Jamil A. Khan, Chief 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 complainants were 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 complainants 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 complainants were not consumer as the shop was purchased for commercial use, he has argued that the complainants have purchased the shop for their 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 Mrs. Nisha Varshney (CW-1) and Mr. Akhlesh Kumar Varshney (CW-2).  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 complainants Mrs. Nisha Varshney (CW-1) and Mr., Akhlesh Varshney (CW-2) have filed documents such as copy of application dated 02.07.2012 (Ex.CW-1/1) copy of receipt dated 02.07.2012 for Rs. 54,514/- (Ex.CW-1/2), copy of letter dated 03.07.2012 (Ex.CW-1/3), copy of letter dated 10.07.2012 (Ex.CW-1/4), copy of credit note dated 30.07.2012 (Ex.CW-1/5), copy of cheque no. 674096 dated 31.07.2012 for Rs. 5,00,873/- and its receipt (Ex.CW-1/6 & 1/7), copy of allotment letter and payment schedule (Ex.CW-1/8 & 1/9), copy of MOU (Ex.CW-1/10), copy of cheque no. 001681 dated 19.12.2014 for Rs. 5,110/- and memo of the bank (Ex.CW-1/11 & 1/12), copy of legal notice dated 07.09.2016 and its postal receipts (Ex.CW-1/12A, 1/13, 1/14 and 1/15) and original courier receipts (Ex.CW-1/16 to 1/18).  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 Mrs. Nisha Varshney and Mr. Akhlesh Varshney have booked the shop with M/s. Samiah International Builders Pvt. Ltd. (OP) by paying a total amount of Rs. Rs. 5,45,140/-.  M/s. Samiah International Builders Pvt. Ltd. (OP) have issued receipts and have executed the MOU.  In the MOU, they have categorically stated that complainants have paid an amount of Rs. 5,45,140/- towards entire value of the shop. 

            It further states that the shop will be handed over within 36 months.  It was further agreed that the allottee was to be paid interest @ 12.5% p.a. beginning from September 2012.  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 complainants who have made the full payment within the stipulated period, however, the pleas which have been made on behalf of M/s. Samiah International Builders Pvt. Ltd. (OP) in respect of jurisdiction, limitation and complainants 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. MOU if looked into, it is noticed that this MOU was executed at Delhi.  To quote from MOU, the first line of MOU states “This Memorandum is made and executed at Delhi on this Monday, July 30, 2012 by and between    M/s. Samiah International Builders Pvt. Ltd. and Mrs. Nisha Varshney and Mr. Akhlesh Kumar Varshney…….”.  Further, Clause 12 of this MOU states that all differences and disputes concerning problems of this MOU or otherwise between the parties shall be subject to the jurisdiction of Courts at Delhi/New Delhi.

            In the presence of this very document i.e. MOU, which was executed at Delhi, it cannot be said that this forum was not having jurisdiction to entertain the complaint.  By executing the MOU at Delhi and 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 complainants have booked the shop in the year 2012 and MOU was executed on 30.07.2012 with the condition that the possession will be handed over which may take about 36 months.  Not only that, assured return beginning from September 2012 was agreed @ 12.5% p.a.  Post dated cheques were issued by M/s. Samiah International Builders Pvt. Ltd. (OP).  When the possession has not been handed over within the stipulated period inspite of having made visits by the complainants 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 complainants were not “consumers”, 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 complainants, the version of the complainants have 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 complainants were not “consumers”.  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 complainants have to be relied upon.  Thus, from the testimony of the complainants, it comes out that the complainants having booked the shop for their personal use, 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 complainants have suffered mental pain and suffering for which they have to be compensated.

            In view of the above, we order that complainants be paid the total deposited amount of Rs. 5,45,140/- with interest @ 12.5% p.a. w.e.f. September 2015 as it was agreed by M/s. Samiah International Builders Pvt. Ltd. (OP) in their MOU and Rs. 50,000/- 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 awarded amount of Rs. 5,45,140/- will carry interest @ 12.5% from September 2015 till realization.  The amount of compensation of Rs. 50,000/- shall also carry 9% interest from the date of order till its realization.

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