Delhi

StateCommission

CC/116/2017

KINSHUK PRIYADARSHI - Complainant(s)

Versus

TDI INFRASTRUCTURE LTD. & ANR. - Opp.Party(s)

MUKTI BODH

14 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

Date of Hearing: 09.08.2018

                                                                   Date of decision:14.08.2018

 

Complaint No. 116/2017

 

IN THE MATTER OF:

 

Mr. Kinshuk Priyadarshi

@ Kinshuk Srivastava

S/o Late Sh. S.K. Srivastava

C-712, Delhi Govt Flats,

Timarpur, Delhi-110054                                                          ….Complainant                                                   

VERSUS

 

1. TDI Infrastructure Ltd.,

UG Floor, Vandana Building,

11, Tolstoy Marg, Connaught Place,

New Delhi-110001

2. Mr. D.N. Taneja

Chairman, TDI Infrastructure Ltd.,

UG Floor, Vandana Building,

11, Tolstoy Marg, Connaught Place,

New Delhi-110001

3. Mr. Ravinder Taneja

Director, TDI Infrastructre Ltd.,

UG Floor, Vandana Building,

11, Tolstoy Marg, Connaught Place,

New Delhi-110001….Opposite Parties

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

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:       Sh. Mukti Bodh, Counsel for the Complainant

                   Sh. Preet Singh Oberoi and Mr. Pragati Vinayal, Counsel for the OP.

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           This complaint has been filed by Sh. Kinshuk Priyadarshi, resident of Delhi, for short complainant, before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) against the TDI Infrastructure Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs on two accounts, firstly in not delivering the possession of the flat booked by him within the agreed time and secondly, in not refunding the amount deposited by him for the purpose in hand, and praying for the relief as under:

 

1. Direct the OPs to refund the principal amount of Rs. 10,15,416/- with interest @ 24% p.a. from the date of the respective deposits of the amounts by the complainant with the OPs till actual realisation.
2. Direct the OPs to pay the increased differential cost of an Independent Floor amounting to Rs. 25 Lacs.
3. Direct the OP to pay Rs. 10 lacs towards compensation for causing mental tension, agony and pain to the complainant.
4. Direct the OPs to pay Rs. 1.5 lacs towards litigation charges incurred by the complainant.
5. Pass such other or further orders as this ld. Tribunal may deem fit and proper in the facts and circumstances of the present case.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant had booked an independent floor with the OPs in their project at Sonepat in December 2009 admeasuring 104.52 sq. mtrs (1125 sq. ft.) Builder Buyer Agreement was executed only in June 2012 and that too after a lot of insistence by the complainant though it was supposed to have been done at the time of booking of the unit. Total sale consideration was of Rs. 24 Lakhs though in the Builder Buyer Agreement executed on 14.06.2012 total cost is indicated as Rs. 27,25,125/-. The complainant has paid to the OPs as per agreement an amount of Rs. 10,15,416/- upto 22.09.2010 starting from 27.08.2009, the date on which booking amount was paid. It was assured by the Ops at the time of booking that they would develop, construct and deliver the possession of the booked unit latest by December 2012.
4.           The complainant has alleged that worse came when they found on their visit to the site no commencement of the construction, even after lapse of several years. Consequently the complainant addressed many letters to the OPs and in response thereto the OPs vide their letter dated 25.03.2015, replied to the complainant that the construction at the site would commence shortly. This is almost six years after the booking was done.
5.           Faced with this situation when the OPs had not even commenced the construction of the project, despite six years having elapsed though the agreement was to deliver the possession within a period of three years, despite payment as per schedule having been made, the complainant vide their letter dated 08.06.2015 sought for the refund of the amount deposited with 24% interest per annum. The OPs did not respond to the request and as a consequence thereof the complainant has filed this complaint for the redressal of his grievances.
6.           OPs were noticed and in response thereto they have filed written statement resisting the complaint on various grounds both on technical and on merit. Their main objection, relying on clause 61 of the agreement, is that the matter has to be referred to an Arbitrator in the first instance, which objection, keeping in view the orders/judgment of the Hon’ble NCDRC in the matter of Aftab Singh and ors versus Emaar MGF Land Limited and Anr as reported in III [2017] CPJ 270 (NC) holding that an Arbitration clause in the agreement between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made in Section 8 of the Arbitration Act, is unsustainable and consequently we unhesitatingly reject the argument.
7.           The next objection of the OP is that the time was never the essence in the agreement, having regard to the totality of facts and circumstances of the case, as this would be guided by other relevant factors. We cannot subscribe to this view. Possession of the unit was agreed to be delivered within a specific period of time, save the condition that in the event of delay, builder would be liable to pay compensation. Agreement by itself, binding both the parties to the terms thereof, indicating time limit for the completion of the construction of the project, stipulates that the time is an essence. The Hon’ble Apex Court in the matter of Bharti Knitting Company versus DHM World Wide Courier Division of AIR FRASE LTD as report in AIR 1996 SC 2510= JT (1996) 6SC 254 is pleased to hold that parties to the contract are strictly bound by the terms of contract and cannot go beyond the terms. Terms and condition of the floor buyer agreement are binding on both the parties as has been laid down in

1. Bhubaneshwar Development Authority versus S.K. Mishra (2009) 4 SCC 684.
2. Barilley Development Authority versus Vrinda Gujrati and ors AIR 2004 SC 1749.
3. Jagruk Nagrik and Anr versus New India Assurance Co I [2011] CPJ 278 (NC).

On these reasoning we do not find any merit in the contention to this effect.

8.           The next objection of the OP that the complainant has transacted in the subject matter for investment to earn profit and not for their personal use, is outrightly rejected since no cogent or tangible evidence has been led in support of their stand. The defence of the OP to the effect that the complainant has suppressed material fact cannot be accepted for want of any specific instance having been referred to.
9.           The complainant has filed rejoinder and evidence by way of affidavit rebutting the contentions raised by the OPs and reiterating the averments contained in the complaint. The OPs have filed their evidence. Both the parties have filed their written arguments. The matter was listed before us for final hearing on 09.08.2018 when the counsel from both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
10. The fact that the complainant had booked an independent floor is indisputed. Possession was to be delivered in 30 months is borne out from the agreement. Delivery by own admission of the OPs could not be done within the agreed period is also not disputed. No cogent or tangible grounds have been placed before us justifying the delay. This clearly goes to establish deficiency of service on the part of the OP.
11. 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 its failure to deliver possession of the subject flat to the complainants. 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 of the case, we are of the considered opinion that the complaint deserves to be allowed and having arrived at this conclusion the point for determination is the relief the complainant can be granted in the facts and circumstances. The complainant has to be compensated, he having suffered the mental agony and physical harassment. The Hon’ble Apex Court in the matter of Ghaziabad Development Authority versus Balbir Singh as reported in (2004) 5 SCC 65 is pleased to hold that there can be no fixed formula for the purpose. It would depend on the facts of each case.
13. The NCDRC in one case, namely, Emaar MGF Land Pvt. Ltd. another versus Krishan Chander, RP 873/13, decided on 29.09.2014, is pleased to hold as under:

 

“The act of the builder in not handing over the possession of the plot even after collecting the total charges and executing the agreement amounts to deceptive practices, leading to unfair trade practices.”

 

14. The Hon’ble NCDRC in the matter of Merlin Projects Ltd. and Anr versus Pandav Roy and another, FA-128/09, decided on 23.05.2014, is pleased to hold as under:

 

“Appellant to pay to the respondent a sum of Rs. 50 lakh for non-delivery of the possession of the immovable property.”

 

15. The Hon’ble Apex Court in the matter of DDA versus Krishan Lal Nondrayog as reported in IV [2010] CPJ 7 (SC) is pleased to hold as under:

                          

“NCDRC directed the appellant to pay interest @ 18% on account of delay caused in delivery….. The Hon’ble Apex Court affirmed the order but reduced the rate of interest @ 5%, observing that award of interest @ 15% is not interest in substance but it is to compensate the respondents by way of damages for loss in terms of money, mental agony and harassment caused…..

 

16. In yet another case, in the case of HUDA versus Sushila Devi Sharma reported in IV[2011] CPJ 3 (SC) the Hon’ble Apex Court ruled that orders of NCDRC holding that the HUDA not having offered the possession have been deficient, does not call  for any interference and the SLP was dismissed.
17. The Hon’ble Apex Court in the matter of Fortune Infrastructure versus Trevor D’lima & ors. as reported in II (2018) CPJ 1 (SC) is pleased to hold that the complainant is entitled to seek refund of the amount paid alongwith compensation in the event the possession is not delivered.
18. In view of the discussion done, and on consideration of the facts of the case, we direct the OPs to refund the principal amount paid by the complainant, delivery of the possession of the flat since not done within the agreed time, nor a possibility in the near future with simple interest @ 10% p.a. from the date of receipt of the amount till its realisation and compensation of Rs. 25,000/- which would also include the litigation cost. These directions may be carried out within a period of three months from the date of receipt of the certified copy of this order.
19. Ordered accordingly.
20. A copy of this order be forwarded to both the parties free of cost as statutorily required. File be consigned to record.

 

 

(ANIL SRIVASTAVA)                                                                                          (O.P.GUPTA)

MEMBER (GENERAL)                                                                           MEMBER (JUDICIAL)