Delhi

North East

CC/198/2017

Sh. Gopal Dutt Sharma - Complainant(s)

Versus

Suparas Homz Pvt. Ltd. - Opp.Party(s)

04 Sep 2020

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. 198/17

 

In the matter of:

 

	Shri Gopal Datt Sharma S/o Shri Pooran Mal Sharma R/o:- 25, Behind Geeta Bhawan, Bholanath Nagar, Shahdara Delhi-110032	Complainant
	Versus
1         2	Suparas Homz Pvt. Ltd. B-44/1 Basement Jain Tower-I District Center, Janakpuri New Delhi-110058   Plan Realty Consulting 602, JMD Galleria, Near Raheja Mall Sohna Road, Sec-48 Gurugram (Haryana)	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

14.06.2017 04.09.2020 04.09.2020

 

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, facts of the complaint as narrated by the complainant are that the complainant who is a TGT in Government School was approached by a representative of OP2 in July 2013 who advised him to invest in OP1’s upcoming project Suparas Cygnet Town coming up at Sector 69, Tapukara Bhiwadi Rajasthan (hereinafter referred to as the said project) and lured him in to getting a good and profitable deal of a plot in the said project. The complainant believing OP2’s representation agree to book a plot with OP1 on his visit to OP2’s office at Bhiwadi on 27.08.2013 alongwith the representative of OP1. The complainant booked a residential plot with OP1 @ Rs. 13,599/- per sq. yd. in OP1’s aforementioned project and paid a booking amount of Rs. 1,00,000/- vide cheque no. 902452 to OP1. The plot was booked under Development Linked Plan (DLP) as per the Application Form. Thereafter, on 02.02.2014, complainant received email from OP2 with attachment of pictures of the construction work at project site which was claimed to have been commenced from March 2014 and assurance of possession was given for the period of September 2014 to the complainant. On 28.05.2014 and 31.05.2014, complainant received lay out / site plan vide email from OP2 & OP1 respectively and was given a choice of four plots to choose any one of them admeasuring 119.95 sq. yd. and accordingly plot no. 5 was allotted to complainant and he was asked to clear the remaining payment. The complainant paid a  total sum of Rs. 8,49,938/- to OP1 till 30.06.2014 as per demand and Provisional Allotment Letter (PAL) and an Agreement was entered into between complainant and OP1 on 18.07.2014 incorporating the terms and conditions of the registration of the plot in which inter alia, OP1 acknowledge that against total sale consideration of      Rs. 16,31,200/- of the said plot, the complainant had paid Rs. 8,49,938/- to OP1 and the payment was agreed upon on DLP basis and the agreement also stipulated that possession of the said plot would be handed over in next 24 months from date of agreement i.e. by July 2016. However, when the complainant visited the project site after a year in August 2015, he saw no construction activity on the project site for which he met the director of OP1 and executive of OP2 and asked them to cancel his booking and refund the deposited sum but was assured by both OPs of timely possession. After another year, in April 2016, the complainant was contacted by the CEO of OP1 asking him to complete the registry process which had already commenced from  February 2016 to which complainant asked OP1 who sent details of development at the project site and project papers for process of loan but got no response from OPs till next two months when complainant vide email sent in June-July 2016 asked OPs to cancel the booking of the plot and refund the paid sum as per clause 24 of the Agreement vide which OP1 was bound to return the amount with simple interest @ 12% p.a. to the investors if it failed to give possession within the stipulated period. Seeing no response to the said email, complainant again followed up with OP vide emails sent in August-September 2016 and contacted offices of OPs but to no avail. Lastly, the complainant was compelled to file the present complaint against OPs praying for issuance of direction against the OPs to refund the deposited amount of Rs. 8,49,938/- alongwith interest to the tune of Rs. 3,43,000/- and compensation of Rs. 3,00,000/- towards mental torture, agony, harassment and financial loss faced by the complainant and  Rs. 5,000/- towards cost of litigation.
2. The complainant has attached copy of PAL, copy of agreement dated 18.07.2014 with terms and conditions of allotment / registration, copy of payment acknowledgment receipt of Rs. 8,49,938/-paid by complainant to OP1 in five tranches through cheques drawn on SBI between August 2013 till June 2014, copy of price list / DLP payment schedule, copy of booking amount receipt dated 02.09.2013 issued by OP1 acknowledging receipt of Rs. 1,00,000/- from complainant and copy of application form with terms and conditions attached.
3. Notice was issued to the OPs on 18.07.2017. OPs entered appearance on 10.10.2017.
4. Written statement filed by OP2 in which it took the preliminary objection that OP2 is an independent firm engaged in the business of property consultant which has nothing to do with OP1 which in turn is a real estate company and both OPs have separate identities and have no connection or control over each other management and administration / affairs. The OP2, while admitting the complainant having contacted it for investment in property, took the defence that the project of OP1 was opted for by complainant himself when OP2 showed him various projects and that the complainant signed the PAL only after reading the terms and conditions of the project in which OP2 had no connection of role to play but has been made a party by the complainant in the present complaint to unduly harass it and pressurize it. OP2 urged that there is no cause of action against it and all payment made by complainant have been to OP1 which is liable to deliver its commitment, whatsoever made to the complainant which OP2 is not even aware of in terms of transaction entered into between complainant and OP1 since OP2 only acted as an independent property consultant facilitating meeting between complainant and OP1 regarding the upcoming project in question and OP2 had no personal knowledge of transaction between complainant and OP1. The OP2 while admitting having sent pictures of the project site to complainant vide emails submitted that such pictures were sent on request of complainant. For the defence so taken, the OP2 prayed for deletion of its name and dropping of proceedings against it for no cause of action having arisen against OP2.
5. OP1 filed its written version in which it took the preliminary objection that complainant is not a consumer within the meaning of consumer Protection Act (CPA) since admittedly he had invested the money in the said project for monetary gains and commercial benefits and was an investor who was looking for profitability post real estate recession and also was aware that this project would commence post approval from concerned government authorities. OP1 took the defence that the complainant showed his interest in the said project only after understanding the property and laws involved / applicable and therefore no deficiency of service can be attributed to OP1. On merits, OP1 resisted the complaint on grounds that though the complainant was introduced to OP1 through OP2 in July 2013 regarding investment in the upcoming project of OP1 at Bhiwadi, OP1 denied holding any meeting with complainant in July-August 2013 though it admitted that the complainant had booked a plot in the said project on payment of  Rs. 1,00,000/- as booking amount and payment schedule fix in terms of DLP as opted for by the complainant as per his own wish. OP1 denied knowledge of any email allegedly exchanged between complainant and OP2 regarding pictures of the project site or any lay out plans or assurance of possession to be handed over by September 2014. The OP1 however admitted that it had allotted plot no. 5 admeasuring 119.95 sq. yd. to the complainant in the said project subject to payment of balance sum of sale consideration as per DLP. OP1 denied having assured the complainant of possession within 24 months from the date of Agreement. OP1 also denied allegation of                                 non-commencement of work on the project site or complainant’s meeting with its directors. Per contra, OP1 stated that the development of plot was ready and possession was about to be handed over to its customers but complainant did not take possession on some pretext or the other. Lastly, OP1 denied any conversation held between complainant and its CEO regarding registration process and documentation asked for and denied receipt of any letter or email from the complainant regarding cancellation of plot booking. For defence so taken, OP1 prayed for dismissal of the complaint.
6. Rejoinder in rebuttal to defence taken by OPs was filed by the complainant urging that OP2 was the channel partner of OP1 to gather clients for OP1 acting as a mediator and that OP2 had only showed him the project in question of OP1 and not any other project. Complainant urged that he had invested in the said project to by a residential plot and it was his first purchase for self-use as he did not have a house of his own and it was not purchased for deriving commercial benefit. Complainant further submitted that he had asked for refund of his money from OPs as there was no development on the construction site. The complainant attached copies of emails correspondence exchanged between complainant and OPs in May 2014 and thereafter between April 2017 to September 2017 regarding the project, plot booked therein and complainant seeking refund / cancellation June 2016 onwards and copy of undated letter from OP1 to complainant assuring possession for September (year unspecified). Complainant urged that as per agreement it was assured that possession would be handed over within 24 months from date of agreement but OP1 failed to show the actual picture of the site to prove its assertion that the plot was ready for possession. Therefore, complainant prayed for relief claimed.
7. Evidence by way of affidavit was filed by the complainant exhibiting documents relied upon in the complaint as well as rejoinder.
8. Evidence by way of affidavit was filed by OP1 through its director reproducing the defence taken in the written statement.
9. Written arguments were filed by the complainant. OP2 failed to appear after filing its written statement in November 2017 and was therefore proceeded against ex-parte vide order dated 27.09.2018. After which date OP1 also failed to appear after filing its evidence and was therefore proceeded against ex-parte vide order dated 13.01.2020. However, in accordance with the settled law passed by Hon’ble NCDRC in Bank of India Vs N.V. Deoras 1997 (3) CPR 63 (NC), the written version and pleadings filed by a party which has been proceeded against ex-parte shall be considered when the case is taken up for hearing and decision on merits, the pleadings filed by OPs shall be considered in their defence.
10. We have heard the arguments addressed by the complainant in person through video conferencing and have given our anxious consideration to the documentary evidence placed on record by him and pleadings filed by all sides.
11. It is an un-rebutted fact that towards the booking of the 119.95 sq. yd. plot by complainant with OP1’s Suparas Cygnet Town Project at Bhiwadi Rajasthan, the complainant had paid a sum of Rs. 8,49,938/- through cheques to OP1 between August 2013 to June 2014 and Application Form dated 27.08.2013 enumerating 37 terms and conditions was duly signed by the complainant as first applicant and was counter signed by both OPs. Subsequently, a provisional allotment letter as well as agreement was entered into between complainant and OP1 on 18.07.2014 delineating the total sale consideration, payment plan opted for as DLP, acknowledgment of amount received and 33 terms and conditions apart from other clauses governing both complainant as well as OP1 and agreement duly signed by both parties on its each page. As per the terms and condition no. 27 and Completion of Project Clause in the agreement, it was stipulated that OP1 shall endeavour to develop the said project as early as possible and shall give possession of the plot to the complainant (applicant / allottee) within 24 months from the date of the agreement failing which OP1 shall be liable to refund the amount paid by the complainant with simple interest @ 12% p.a. on the deposited amount. No period for “extension of time” has been specified in either of the clauses and therefore it implies that OP1 was duty bound to hand over possession by mid-2016. The dispute arose when even after two years of the said payment made by complainant to OP1, there was no construction activity on the project site compelling the complainant to ask for refund in June 2016. As per the complainant, there was no construction activity in the project site even after one year of the agreement when he first visited the project site and till filing of the present complaint in June 2017.  From perusal of the emails exchanged between the complainant and OPs in May 2014 and thereafter between April 2016 till September 2016 placed on record by the complainant alongwith his rejoinder, we have observed that though OP1 vide email dated 24.04.2016 to complainant informed him of commencement of registry in the said project since February 2016 asking him to make himself available for registry in the said project, but it appeared to be a mere representation and a moonshine since no registry or allotment was ever done by OP1 despite fervent follow ups by the complainant for next few months and therefore complainant lost hope of any possession and asked for refund June 2016 onwards from OP1 raising demand for cancellation of registration and seeking refund of the deposit amount of Rs. 8,49,938/- which was more than 50% of the total sale consideration towards the said plot and which the OP1 was enjoying since June 2014. On keen perusal of written statement filed by OP1, we observe that the OP1 has maintained studied silence on the aspect of construction on site and has failed to place on record any proof or evidence to show construction activity on the project site since 2014 or any registry done with respect to any of its applicants in the said project as claimed  even till the filing of the present complaint in 2017 and during the pendency of the same till OP1 last appeared in September 2018 when it filed its evidence. No such details of allottees has been placed on record by OP1 to show or prove its contention of having allotted plots to other investors in the said project. Also there is no rebuttal or specific denial of the amount paid by complainant and received by it towards the part payment of sale consideration. The denial by OP1 of any commitment to hand over the possession within 24 months from the date of agreement stands falsified / demolished from its own terms and conditions no. 27 of the application Form read with Clause 24 of the agreement which specified possession to be handed over within 24 months from date of agreement and also the default clause of penalty of 12% interest p.a. on the deposited sum to be paid by OP1 to its allottee / applicant for no adherence of this timeline. This act of OP1 is manifest of not only deficiency of service but also of unfair trade practice for illegally misappropriating hard earn money of the complainant since 2014 and failure to give possession within the stipulated period.

OP1 has been unable to prove its allegation of complainant being an investor or having proposed to purchase the said plot for commercial purpose and tis objection stands defeated on the principle of ipse dixit (assertion made without proof). OP1’s stand of non-receipt of email or letter from the complainant also stands defeated in the light of series of email correspondence exchanged between complainant and OP1 between April 2016 to September 2016. Therefore it is evident that there was no commitment by OP1 for development of the project which actually never saw the light of the day for almost four years since the time complainant first deposited booking amount in 2013 till filing of the present complaint in 2017. The Hon'ble Supreme Court in the landmark decision of Lucknow Development Authority Vs M.K. Gupta III (1993) CPJ 7 (SC) held that when a person hires the services of a builder, or contractor, for the construction of a house or a flat, and the same is for consideration, it is a “service” as defined in Section 2(1)(o) of the Consumer Protection Act and the inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In present case, the OP in its pleadings has maintained a studied silence on the aspect of commencement of construction, much less completion of the project and instead has been evasive in this regard, trying to shift the blame on the complainant of having invested in the project for commercial gains and after understanding the property and loss applicable and has failed to show much less establish any bonafide on its part to explain non commencement of the construction on project site and non-refund of the deposited sum of the complainant which it was sitting on for more than four years despite complainant having sought refund since June 2016 when it was over two year time lapse since date of agreement i.e. July 2014 and expiry of stipulated period of possession.The Hon’ble Delhi SCDRC in Abhey Kumar Sharma Vs Ansal Hi-tech Township Ltd. I (2020) CPJ 284 (Del) held that non delivery of possession and hard earned money of complainant having been retained by builder for number of years is deficiency of service as well as unfair trade practice and a person cannot be made to wait indefinitely for possession and is therefore entitled to seek refund of the amount paid by him with compensation. The Hon'ble Supreme Court in M/s Fortune Infrastructure (now known as M/s Hicon Infrastructure) & Anr Vs Trevor D’Lima III (2018) CPJ 1 (SC) and in the recent judgments of Kolkata West International City Pvt. Ltd. Vs Devasis Rudra II (2019) CPJ 29 (SC) and Pioneer Urban Land & Infrastructure Ltd. Vs Govindan Raghavan II (2019) CPJ 34 (SC) in somewhat similar matters inter alia relating to non-delivery of possession of the flat / house, held that the complainant cannot be made to wait indefinitely for a long period and is therefore entitled for refund of the deposited amount with some reasonable interest. The ratio of the aforesaid judgments were followed by Hon'ble National Commission in EMAAR MGF Land Ltd. & Ors Vs Amit Puri II (2015) CPJ 568 (NC), Avnish Kumar Vs Sare Gurugram Pvt. Ltd. I (2020) CPJ 426 (NC), Morzaria Products LLP Vs Marvel Omega Builder Pvt. Ltd. I (2020) CPJ 465 (NC) and Bivash Banerjee & Ors Vs Ramprastha Promoters and Developers Pvt. Ltd. I (2020) CPJ 517 (NC) wherein Hon'ble National Commission held that a flat purchaser cannot be made to wait indefinitely for delivery of possession after the promised date of delivery and it is the discretion of the complainant whether he wants to except the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. All the above quoted case laws are squarely applicable to the present case of such act of commission and omission on the part of the OP1 which is manifest of unfair trade practice.

After thorough appreciation of the documentary evidence placed on record and appraisal of the same, we find OP1 guilty of deficiency of service and unfair trade practice and allow the present complaint against it with directions to OP1 to refund the balance amount of Rs. 8,49,938/- alongwith interest by way of damages @ 12% from the date of payment i.e. 30.06.2014 till realization to the complainant. The interest is being allowed due to the fact that the money remained with the OP and as per the judgment of Hon'ble Supreme Court in Alok Shanker Pandey Vs Union of India II (2007) CPJ 3 (SC), the complainant would be entitled to get interest as observed by the Hon’ble Apex Court that “interest is not a penalty or punishment at all, but it is the normal accretion on capital. Hence equity demand that not only the principal amount but also the interest thereon should be paid back.” We rely on the recent judgment of Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs D.S. Dhanda II (2019) CPJ 117 (SC) wherein it is observed that when interest is awarded by way of damages, awarding additional compensation is unjustified. Taking into consideration the principle of restitutio in integrum which specifies that the aggrieved person should necessarily be compensated for financial loss suffered due to the event, we further direct the OP1 to pay a sum of Rs. 2,000/- towards cost of litigation to the complainant. In so far as the role of OP2 is concerned, notwithstanding that it has admitted that as a property consultant, it had shown the project in question of OP2 to complainant, it has denied any connection with OP1 in terms of management, operation and administration, both being separate independent entities. Though the complainant has alleged that OP2 was the channel partner of the OP1 and acted as mediator between complainant and OP1 to facilitate the deal of the plot in question in the said project, complainant has failed to establish whether any brokerage or consultancy fee by way of consideration was paid by him to OP2 and the law of Consumer Protection Act is very clear that in the absence of any consideration paid or promised / proposed to be paid, no liability can be fastened on any party. The Hon’ble National Commission in Shashi Gupta Vs B. Murli in RP No. 1648/2012 decided on 21.02.2013 held that payment of consideration is the basic ingredient of being a consumer and absence of it does not give rise to cause of action. Emails exchanged between complainant and OP2 are silent on any consultancy fees of consideration and only pertain to issue of home loan and delay by OP1 in registration of plot. Therefore, no culpability against OP2 has been established by the complainant except that it was a mediator between complainant and OP1 and complainant himself admitted during the course oral arguments to the specific query raised by this forum regarding consultancy fees, if any, paid to OP2 by complainant that he had not paid any such sum or fees to OP2.  Even otherwise, admittedly OP1 has been the beneficiary of the consideration amount / deposit made by complainant towards the part payment of the plot in question in the project floated by OP1. Therefore, no cause of action has been made out by the complainant against OP2 which is thereby absolved. Let the order therefore be complied only by OP1 within 30 days from the date of receipt of copy of this order.

12.  Let a copy of this order be sent to each party free of cost as per regulation 21 (1) of the Consumer Protection Regulations, 2005.
13.   File be consigned to record room.
14.   Announced on  04.09.2020

          

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member