IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision:11.09.2014

Complaint Case No-89/2011

In the matter of:

Sh. Pradeep Singh Pahal

S/o Amar Singh Pahal

D-34, II Floor Pamposh Enclave (GK-1)

New Delhi-110048            ………….Complainant

Versus

M/s TDI Infrastructure Pvt. LTd.

Formaly Known as Intime Promoters Pvt. Ltd.

9, Kasturba Gandhi Marg

New Delhi-110001            ……….Opposite Party

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

S.A.Siddiqui, Member (Judicial)

JUDGEMENT         

1.         This Complaint has been filed under Section 17 of the Consumer Protection Act 1986 (in short the Act) to direct the OP to refund deposited amount of Rs. 35,20,000/- (Rs. Thirty Five Lakhs Twenty Thousand Only) along with interest @ 20% p.a., payment of compensation to the tune of Rs. 8 Lac and Rs. 2 Lac towards costs of litigation.
2.         It has been alleged that complainant is a consumer within the meaning of Section 2 (1)(d) of the Act and the OP is a construction company carrying on business in the name of TDI Infrastructure Pvt. Ltd. having its registered office at 9 Kasturba Gandhi Marg, New Delhi.  The complainant on the basis of the representation/inducement of the OP invested in their commercial complex project namely ‘Radeo Drive’.  The complainant was assured by the OP that aforesaid commercial complex was a part of TDI City at Kundali, Sonepat Haryana.  The Complainant therefore applied for booking/registration/allotment of a shop in ‘Radeo Drive Complex’ in TDI City at Kundali, a project being developed by OP and was to be completed by February 2009.  Complainant paid a sum of Rs. 8,50,000/- (Rs. Eight Lakh Fifty Thousand Only) as  registration amount.  Copy of the receipt dt. 10.05.2006 for a sum of Rs. 8,50,000/- is annexed and marked as annex. P-1. Through letter dt. 31.08.2006 OP allotted a shop/unit No. 205, Ground Floor having covered area of 536 sq.fts. and super built up area 800 sq.ft.  Copy of the allotment letter dt. 31.08.2006 is annexure P-2 and copy of site plan is annexure P-3. Thereafter on the basis of the demand letters issued from time to time complainant deposited a total sum of Rs. 35,20,000/- towards construction of the said unit, “total cost of the unit being Rs. 44 Lac”.  Payments were to be made on time as per schedule.
3.         It was further alleged that the complainant deposited his hard earned money with a dream to have his own business but the OP did not handover the possession of the unit till date and made false promises.  The pace of construction was extreme slow so much so the complainant lost hope in the builder-OP.  The complainant was not given possession of the said unit even after 24 months from the date of sanctioning of the building plans as assured by the OP.  The complainant visited the project site on 06.03.2011 and found that no construction work was going on at the complex.  (The condition of the project as the complainant saw and found it in the month of February 2010). Recent photographs showing incomplete construction of the said project are annexed and marked as annex. P-11 (Colly).  The complainant was therefore totally frustrated and sent letter dt. 12.03.2011 to the OP requesting to refund the amount deposited along with interest @ 21% p.a. but the OP did not bother to reply.  Copy of the letter dt. 12.03.2011 is annex.P-12.  The complainant had made a plan to carry out his own business for his livelihood, but his dream was shattered causing severe mental pain and agony to complainant.  The conduct of the OP constituted gross deficiency of service and indulgence in unfair trade practice.  The harassment, mental pain and agony caused to the complainant though cannot be compensated in terms of money,  however, a sum of Rs. 8 Lac is being claimed towards compensation on this count.  Beside, a sum of Rs. 2 Lac has also been claimed towards costs of litigation and miscellaneous expenses.  This Commission has pecuniary and territorial jurisdiction to entertain and adjudicate the complaint.
4.         OP filed written statement, alleging that complainant was guilty of ‘suppresso veri’ and ‘suggestio falsi’.  The complainant wilfully and with an ulterior motive to blackmail the OP suppressed and concealed material facts from this Commission and has not come out with clean hands.  Complainants have deliberately misrepresented the status of development of construction of commercial complex; no cause of action was available to the complainant and the present proceedings are abuse of the process of law as well as provisions of the Act.
5.         It was further alleged that complainant is not consumer within the meaning of the Act.  The registration and allotment of the shop/unit was obtained with the motive of earning of profit with the hope that prices of the real estate will rise in the near future and they could exit at a premium by earning profits. Unfortunately due to a sudden and sharp decline in real estate prices and global economic meltdown, the complainants failed to book expected gain.  Therefore they defaulted in making payment in accordance with the payment schedule.  It is in this context they filed frivolous complaint levelling false and frivolous allegations against the OP.  It was unfair to allege that the OP has committed any deficiency in service or has indulged into unfair trade practice.  It was however, admitted that after deposit of registration amount of Rs. 8,50,000/- on 10.05.2006, OP allotted the Shop/unit No. 205, ground floor, with covered area 536 sq.fts. and super built area of 800 sq.ft. The total deposited amount of Rs. 35,20,000/-was also not disputed.  However, the contention and averments made in the complaint are not correct in as much as facts have been twisted. The true facts are that the OP, has as part of business strategy and to intimate general public advertised its upcoming projects and its salient features in print and electronic media in a similar manner, OP advertised its upcoming commercial project “Radeo Drive” at TDI CITY, Kundali, Sonepat, comprising of multiplexes, food courts, retail houses and other entertainment zones.  The complainant having been impressed by the features of the project approached the OP through a real estate agent namely Sh. Surendra Buildtech.   The complainant applied for the registration and allotment of commercial shop admeasuring 800 sq.fts. super built area on ground floor.  Complainant filled advance registration form governing the terms and conditions of the offer of allotment, the mode and manner of sale consideration.  The complainant also paid registration amount of Rs. 8,50,000/-.
6.         It was further maintained that the time frame for handing over the possession is governed by the terms of unit buyer agreement which was executed by the complainant in the year 2011, after several requests.  Clause 4.1 and 4.2 conjointly deals with the completion of the project and handing over of the possession of the unit after its development.  Clause 4.1 provides that the seller shall try to devolve the ownership of the unit upon purchaser within 24 months from the date of sanctioning of the building plans in the said complex with a grace period of six months.  Clause 4.2 provides that handing over period and the grace period would automatically stand increased on occurrence of any force majeure event or for any reasons beyond the control of the seller........
7.         The pace of construction was slowed down due to various reasons, some of them being beyond the control of the OP.  Apart from global recession in 2008, certain individuals filed writ petition before Punjab and Haryana High Court.  In writ petition CWP No. 15777 titled as Rajyoja Education and Research Foundation V/s State of Haryana, the Hon’ble High Court stayed operations and effect of licences and put the entire development work process on the standstill.  The stay was however, got vacated by Hon’ble Apex Court and the construction work was reinstated.  It was due to this reason that the progress of the work was hindered.  However, the respondent is still committed to handover the possession of the unit to all the allottees including the complainant in near future after its development.  It was further mentioned that there was no deficiency of service committed on the part of the OP nor the OP indulged into unfair trade practice.  Infact it was the complainant who was at fault by non discharging the obligations to make timely payments.  The investment was made by the complainant when real estate business was at a boom with the expectation to book high profits by selling the same.  But due to sudden and sharp decline in real estate prices and global economic meltdown, the complainant failed to achieve his objective.  It was further wrong to allege that due to act of omission on the part of the OP, the complainant suffered financial loss or faced harassment, mental pain and agony.  The complaint was false, frivolous and without any cause of action and deserves to be dismissed. 
8.         The complainant filed replication and reiterated the complaint allegations. It was submitted that the complainant invested his hard earned money to purchase the unit for his own use and paid 80% of the purchase price till February 2010.  It was also submitted that the OP did not make any demand after January 2010 for payment of 20% balance amount only because no progress could be made in the development of the construction of the project which has virtually been abandoned by the OP.
9.         The parties led evidence through affidavit and also filed their respective written arguments.
10. We have heard Sh. S.H.Isfahani, Ld. Counsel for the Complainant and Sh. Vaibhav Jaiswal, Ld. Counsel for the OP.
11. There are certain undisputed facts of the complaint.  Complainant paid Rs. 8,50,000/- on 10.05.2006 towards booking/registration amount and the complainant received  allotment letter dt. 31.08.2006 from the OP whereby shop/unit No. 205, ground floor, with covered area of 526 sq.ft. and super build up area of 800 sq. ft. was allotted to the complainant in TDI City at Kundali, Sonepat Haryana.  Total cost of said unit was Rs. 44,44,000/-.  As against this the complainant made total payment of Rs. 35,20,000/- (80% of the total cost).
12. It was argued on behalf of the Ld. Counsel for the Complainant that the complainant booked aforesaid unit to start his own business for his livelihood but on account of inordinate delay in handing over the possession, the whole plan of the complainant was shattered.  The complainant had to undergo not only huge financial loss but also suffered a lot of mental pain and agony.  The possession of the unit was to be delivered within 24 months with six months grace period from the date of sanctioning of the building plan.  Till February, 2010 there was hardly any progress in the construction work. Even the buyer builder agreement could not be executed till 09.02.2011 that too after much bickering.  The pace of development was so slow and tardy that the complainant lost hope in the project and decided to take his money back.  This all happened despite the payment of 80% of the project price till February 2010.  After January 2011 no demand for payment of 20% balance amount was made by the OP only because the project has been almost abundand by the OP.  Ultimately the complainant sent a letter dt. 12.03.2011 to the OP to refund his invested amount of Rs. 35,20,000/- along with interest @ 21% p.a.  The project is still incomplete and in Para 10 of the written statement the OP has clearly admitted that the OP was still committed to hand over the possession of the unit to all the allottees including the complainant in near future.  He relied upon the ruling of the Hon’ble National Commission Paramvir Singh V/s P.H.House Pvt. Ltd. III “2011” CPJ 465 (NC).  Wherein it has been held that consumer cannot be made to wait indefinitely at whims and fancies of builders especially when false representations have been made regarding completion.
13. On the other hand, Ld. Counsel for the OP raised preliminary objections that the complainant does not fall within the purview of the consumer under Section 2 (1) (d) of the Act.  This Commission/Forum therefore has no jurisdiction to try and entertain the present complaint.  Even otherwise the complainant failed to disclose any cause of action arising in favour of the Complainant.  The complaint deserves to be dismissed on this score alone.  He further argued that complainant failed to pay the instalments on time and despite several demand letters dt. 29.10.2006, 23.01.2004, 11.12.2007, 30.01.2008, 25.01.2010 and 20.10.2010 sent by the OP to the complainant.  Therefore with an ulterior motive to blackmail the OP and to cover up his own acts of omission and commission and defaults in making payment, a false and frivolous consumer complaint was filed.  The present proceedings are nothing less than abuse of the process of the court and an attempt to arm twisting tactic to achieve ill desired goal.  The complainant cannot be allowed to take benefit of his own wrongs.  All complete details regarding the project were shown to the complainant at the time of sending the advance registration form and only after getting the satisfied with the deals complainant agreed to apply for the allotment of the unit.  He further emphasised that the complainant made default in payment as per schedule.  Due to consistent defaults OP issued a letter dt. 21.02.2011 to the complainant intimating that his registration has been cancelled by the OP.  The complainant however, instead of coming for refund, chose to file this frivolous complaint. Thus there was no deficiency or negligence of any kind on the part of the OP. Not all omissions or commissions can be attributed against the OP.  The complainant has never suffered any loss, mental pain and agony.  Infact it was complainant who was at fault by making default in payment.  The complaint is devoid of merit and deserves to be dismissed with costs. 
14. First of all we propose to examine the core issue whether the complainant is a consumer or not within the meaning of the Act?  Section 2(1)(d) defines the word ‘consumer’.  Explanation appended to section 2 (1)(d)(ii) provides that 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 purposes of earning his livelihood by means of self-employment.  The expression ‘commercial purpose’ has not been defined in the Act.  In its common parlance commercial purpose is that purpose the objective of which is to make profit.  ‘Commercial’ encompasses all business activities.  In the present case it has been alleged by the OP that the investment in the shop/unit was made by the complainant, at the time when the real estate business was at boom, with the expectation to book maximum profit.  However, due to sudden and shock decline in real estate prices due to global meltdown, the complainant failed to achieve his objective of making the huge profit by selling the shop. 
15. On the other hand, counsel for the complainant submitted that the complainant invested his hard earned money to purchase the unit for starting his own business to earn his livelihood but the inordinate/undue delay caused in the completion of the project shattered the dream of the complainant and he lost faith in the OP and sent a letter dt. 12.03.2011 to the OP to refund the amount along with interest etc.  Interestingly the distinction between the ‘commercial purpose’ and ‘non commercial purpose’ is so obscure and thin that it becomes very difficult to reach on a definite conclusion.  In our considered view the expression ‘commercial purpose’ must be given precise and restrictive meaning in favour of the consumer.  There is hardly any evidence in support of the assertion and the counter assertion; only bald statements are there. The cases under consumer protection Act are decided to achieve the objective behind the legislation i.e. Consumer Protection Act 1986.  The objective can only be achieved by doing demonstrative justice as against the abstract justice.  Therefore we are of the view that complainant is a consumer within the meaning of the Act.  Any otherwise view could defeat the purpose and objective behind the Act. 
16. The factum of considerable delay in completion of the project has been reluctantly admitted by the OP in Para 10 of its written statement. After giving several explanations for slow and tardy development of the project, it has been stated that “however, the respondent is still committed to handover the possession of the unit to all the allottees including the complainant in near future after its development.  The OP has not filed any evidence to show that the project is nearing completion or is making satisfactory progress.  It has given lame excuses which cannot be accepted the complainant till the year 2010 had deposited a sum of Rs. 35,20,000/- which is 80% of the total price of the unit.  Shop/unit was booked on 10.05.2006 when booking/registration amount of Rs. 8,50,000/- was deposited.  A consumer cannot be made to wait indefinitely at whims and fancies of a builder as was held by Hon’ble National Commission in Paramvir Singh’s case.  Therefore, it would be in the large interest of justice that the amount deposited by the complainant is refunded back with adequate rate of interest.  He should also be adequately compensated for the harassment, mental pain and agony.  Non-completion of the project even after 3 years from the date of promised delivery of possession definitely amounts to deficiency of service on the part of the OP. It can also be taken as indulgence to unfair trade practice.
17. We are therefore, making the following order:-

1. The OP is directed to refund a sum of Rs.35,20,000/- with interest @ 9% p.a. from the date of deposit till the date of actual payment. 
2. The OP further directed to pay a sum of Rs. 50,000/- as compensation for mental pain, agony and harassment. OP will also pay as sum of Rs. 10,000/- towards costs of litigations.

1. The payment shall be made within a month from the date of receipt of the copy of the judgment.
2. Copies of the judgment be made available to the parties free of cost as per rule and thereafter file be consigned to record room.