IN THE STATE COMMISSION: DELHI

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

Date of hearing: 30.07.2021

                                                                      Date of Decision : 12.08.2021

Complainat No. 542/2015

IN THE MATTER OF

MR. SHREE BHAGWAN AGGARWAL,

S/O Sh. V.P. Aggarwal,

R/o CC-143-B, Shalimar Bagh,

Delhi-110088

MRS. RITA GUPTA

W/o Sh. R.N. GUPTA

R/o CC-143-B, Shalimar Bagh,

Delhi-110088                                                                                                                                                                                                                          ….Complainants

VERSUS

TDI INFRASTRUCTURE LTD.

UG Floor, Vandana Building

11, Tolstoy Marg,

Connaught Place,

New Delhi-110001.

                                                                                                            …Opposite Parties

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

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

2.         To be referred to the reporter or not?                                                                           Yes

Present:            Mr. Jatin Rana, Counsel for the Complainant

            Ms. Yashodhara Gupta, Counsel for the Opposite Parties.

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint under Section 17 of the Consumer Protection Act 1986,  the Act, has been filed by Sh. Shree Bhagwan Aggarwal, resident of Delhi, for short complainant against TDI infrastructure Ltd., hereinafter referred to as Opposite Parties, alleging that the possession of the shop booked for personal use and for livelihood not having been handed over to the complainant within the agreed period despite the payment as required under the schedule having been paid, the OPs have been deficient in rendering service to him and their not refunding the amount with interest as sought for due to the delay further aggravates their guilt and praying for the relief as under:

1. Direct the respondent to refund the respondent Rs.18,00,000/-(Rupees Eighteen Lakhs Only) along with 21% interest as amount of damages along with pendent lite and future interest from 27/02/2012.
2. Direct the Respondent to pay Rs.10,00,000/- as loss  of earning and business caused due to non-handing over of possession of the shop.
3. Direct the Respondent to pay a sum of Rs.1,00,000/- as compensation to the complainants towards the Harassment, humiliation along with mental agony and pain.
4. Award a sum of Rs.60,000/- as the cost of the proceeding & Litigation charges.

2.           Facts of the case necessary for the adjudication of the complaint are these.

3.          The Complainants had booked a shop on 22/5/2006 in the project of the opposite party by the name of “Rodeo Drive, Mall located in TDI city Kundli, Sonipat, Haryana. The total area of the shop is 500 Sq. Ft. and the value of the shop was Rs.4500/- per Sq. Ft. Therefore, the total sale consideration amount of the shop was Rs.22,50,000/- for which an advance amount of Rs.4,50,000/- was made on 22/5/2006. The allotment letter for the booking as a consequence thereof was issued on 05/06/2006.

4.            OPs were noticed and in response thereto they have filed the reply resisting the complaint both on merit and on technical ground stating, that the present complaint has been filed with the sole ulterior intention to harass the opposite party as the possession has not been handed over due to the continuous defaults being committed by the complainants towards making payment. Besides the complaint is hopelessly barred by limitation. The submission is that the last payment towards the shop in question was made on 03.03.2012 and the present complaint has been filed in August, 2015 beyond a period of two years from the date of cause of action. Further the complainants in the present case having booked a shop in “Rodeo Mall” is for commercial ­purpose in which case he is not a consumer.  Possession not having been handed over owing to the complainant found to be defaulting does not give any cause of action in favour of the complainant. On merit they have denied the averments contained in the complaint and accordingly have prayed for dismissal of the complaint.

5.               The complainant has thereafter filed the rejoinder rebutting the contentions raised in the reply and reiterating the averments contained in the complaint. Both sides have also filed their evidence by way of affidavit in support of their pleadings. Their written arguments are also on record.

6.              This matter was listed before this Commission for final hearing on 30.07.2021 when the counsel for both sides appeared and advanced their arguments, the complainant vehemently argued for the refund with interest, possession of the shop not having been handed over within the agreed period and the OPs for the dismissal of the complaint, no case for refund of the amount having been made out as that was due to non-payment of the instalment. I have perused the records of the case and considered the rival contentions involved in the subject matter.

7.               Short question for adjudication in the complaint is whether the complainants are entitled for the refund of the amount as prayed for in the facts and circumstances of the case.

8.                It is a statement of fact that the possession of the shop booked by the complainant was not handed over within the agreed period. The fact that 80% of the total sale consideration has been paid by the complainant has also not been controverted. The Complainant cannot be faulted with for not making payment of the balance amount of 20% as that was to be done only at the time of possession. However, before adjudicating the complaint, I may deal with the objections of the OPs.

9.              Their first objection that the complainant has been defaulter is not borne out from the evidence led and accordingly is overruled. The objection regarding limitation cannot sustain possession having not been handed over leading to continuous cause of action. The next objection of the OP is that there exists no cause of action as against them as they have committed no deficiency of service. The complainant has deposited the amount as per the demand raised by the OP. for the purpose of owning a shop. This fact is undisputed. OPs have not delivered the unit giving rise to the cause of action in favour of the complainant and against the OPs. In fact cause of action, gives occasion for and forms the foundation of the suit, relying on the judgement of the Hon’ble NCDRC in the matter of Santa Banta Com Ltd. Vs Parsche Cars as reported in I [2014] CPJ 516 (NC). The cause of action is dealt with in detail by The Hon’ble Supreme Court in Kandimalla Raghavaiah and Co versus National Insurance Company Ltd. and another reported in 2009 CTJ 951 (SC) holding as under:

“The terms cause of action is neither defined in the Act nor in the CPC but is of wide import. It has different meanings in different contexts that is when used in the context of territorial jurisdiction or limitation or accrual of right to due. Generally it is described as bundle of facts which if proved a admitted entitled the plaintiff to the relief prayed for. Pithily stated, cause of action means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit.”

Having regard to these facts and the law laid down the objection of the OP to this effect being unsustainable is rejected. Their next objection is that the complainant having booked a shop for commercial purpose is not a consumer within the meaning of Section 2(1) (d) of the Act in which case he is not entitled to raise a consumer dispute as contemplated under Section 2(1) (e) [Supra]. For this purpose I may advert to the provisions of Section 2 (1) (d). The said provisions are as under:

            “Consumer” means any person who—

1. 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

2.  [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promises, 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.

10.   On bare perusal of the aforesaid provision of the Act it is manifestly clear that the transaction done for commercial purpose is not covered within the ambit of Section 2(1) (d). However an exception has been carved out in the Act to the extent that once the transaction has been done for self use and for earning livelihood one continues to be a consumer. Coming to the facts of this case it would be evident that the transaction done was for purchasing a shop to earn livelihood as borne out from the evidence led and if that be the case the objection so raised is rejected. For this purpose I am fortified in my view by the decision taken by the Hon’ble NCDRC in the matter of Rekha D.Shah vs M.Abbas & Co. As reported in IV [2016] CP:J 252 (NC) holding that the allotment of chambers for professional purposes comes within the definition of consumer as the transaction in the given case for earning livelihood. Similar view was taken by the Hon’ble NCDRC in the matter of Kushal K. Rana vs DLF Commercial Complexes Ltd. as reported in IV [2014] CPJ 287 (NC) holding that a proprietor running a business for earning livelihood is a consumer within the meaning of Section 2(1) (d) [Supra].

11.       Having dealt with the submissions made by the OPs I proceed to adjudicate the matter on merit. It is a fact that 80% of the payment was made and it is also not in dispute that the possession of the shop booked has not been handed over. In that view of the matter the inevitable conclusion is that there was gross “deficiency”, as defined in Section 2(1)(g) of the Act, on the part of OP in their failure to deliver possession of the subject shop to the complainants in terms of the agreement. It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade as defined, under Section 2(r) (ii) of the act, as well. (See: Lucknow Development Authority vs. M.K. Gupta-(1994) 1 SCC 243).
12.       Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted.
13.       Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted flat.
14.       The provisions of the act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental, or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action on the part of the part of the OP. In Ghaziabad Development Authority vs. Balbir Singh-(2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations, given in the said decision was between the cases, where possession of a booked/ allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a flat of land, like in the present case.
15.       The complainants in their written arguments have also relied on the judgment of the Hon’ble NCDRC in the matter of Puneet Malhotra vs. Parsvnath Developers Ltd. CC 232/2014 decided on 29.01.2015 holding as under:

“The opposite party has already taken almost entire sale consideration from the complainants. However, despite making almost entire payment, the complainants have not been able to get the shelters they had sought to acquire and considering the steep increase in the value of land and the cost of construction in last 7-8 years, it is not possible for them to acquire another similar accommodation even after adding the amount of interest @ 18% per annum to the amount they had deposited with the opposite party. Therefore , the facts of these cases are really gross and justify grant of interest @ 18% per annum, inclusive of appreciation in the value of land and in the cost of construction in last about 7-8 years. For the reasons stated hereinabove, the complaints are disposed of with a direction to the opposite party to refund the amount which the complainants had deposited with it, along with interest on the said amount @ 18% per annum from the date the deposit was made till the date the refund is made. This comprises 8% per annum on account of appreciation in the land value and increase in cost of construction and 10% on account of interest. However, considering that compensation is included in grant of interest @ 18% per annum, we do not grant any separate compensation to the complainants over and above interest @ 18% per annum.”

16.         They have relied on yet another judgment passed by the Hon’ble NCDRC in the matter of Swarn Talwar and two ors vs Unitech Ltd. passed in CC 347/2014 decided on 14.08.2015 holding as under:

For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit til the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of.

17.      I have given my careful consideration to the subject matter, as also the law laid down by their Lordship. The complainant has prayed for the refund. Physical possession of the shop at this stage is out of question.
18.      Accordingly the OPs are directed to refund the principal amount with simple interest @ 6% per annum from the date of deposit till realisation. This refund and the interest be paid to the complainant by the OP within a period of three months from the date of receipt of this order, failing which the complainant would be entitled for 9% interest.
19.    Ordered accordingly.
20.    Copy of this order may be forwarded to the parties to the case free of cost as statutorily required.
21.    Files be consigned to records.

(ANIL SRIVASTAVA)

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