State Consumer Disputes Redressal Commission
Mukesh Chaudhary vs Ireo Grace Realtech Private Limited on 8 October, 2024
C. NO. 35/2021 D.O.D.: 08.10.2024
MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 23.02.2021
Date of hearing: 28.08.2024
Date of Decision: 08.10.2024
COMPLAINT CASE NO.- 35/2021
IN THE MATTER OF
MUKESH CHAUDHARY,
S/O KHUSHI RAM CHAUDHARY,
R/O B-801, KAMAROON COURT GH-12,
SECTOR 43, GURGAAON - 122001.
(Through: PSP LEGAL, ADVOCATES & SOLICITORS)
...Complainant
VERSUS.
IREO GRACE REALTECH PVT. LTD.,
THROUGH ITS DIRECTORS,
HAVING ITS REGISTERED OFFICE AT:
C-4, 1ST FLOOR, MALVIYA NAGAR,
SOUTH DELHI, DELHI-110017.
(Through: Mr. Vibhu Jaiswal, Advocate)
...Opposite Party
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI (JUDICIAL MEMBER)
ALLOWED PAGE 1 OF 11
C. NO. 35/2021 D.O.D.: 08.10.2024
MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
Present: Mr. Siddharth Karnawat (email:
[email protected]), counsel for the
Complainant.
None for the OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainant before this commission alleging deficiency of service on the part of the Opposite Party and has prayed the following reliefs:
a. "Direct the Opposite Party, for an immediate 100% refund of the total amount paid by the Complainant, along with a penal interest of 18% per annum from the date of the receipt of each payment made to the Opposite Party; b. Direct the Opposite Party, to pay compensation of Rs. 5,00,000/- (Rupees Five Lakhs Only) to the Complainant for the mental agony, harassment, discomfort and undue hardship caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party; c. Direct the Opposite Party, to pay a sum of Rs. 1,00,000/- (Rupees One Lakh Only) to the Complainant towards litigation costs; and d. That any other and further relief in favour of the Complainant as the Hon'ble Commission may deem fit and proper in the facts and circumstances of the case."
2. The brief facts necessary for the adjudication of the present complaint are that in the year 2013, the Complainant booked an apartment with the Opposite Party in the project "The Corridors"
situated at 67A, Gurgaon, Haryana. Thereafter, the Opposite Party allotted an Apartment bearing no. CD-C6-08-0802 in tower C-6 vide Allotment Letter dated 12.08.2013. Further, an Apartment Buyer Agreement was executed between the parties vide Agreement dated ALLOWED PAGE 2 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
07.07.2014. The Opposite Party assured the complainant that the possession of the said apartment will be handed over to him within 42 months from the date of approval of the building plans and/or fulfilment if the preconditions imposed thereunder along with a grace period of 6 months i.e. by 27.11.2018.
3. The complainant visited office of the opposite party numerous times to know about the construction of the said project but no satisfactory response was given by the builder. It is further submitted that the last construction update available on the website of the Opposite Party is of May 2018 which clearly shows that both the Project and the Apartment were nowhere near completion or habitable and that the possession could not be delivered by the opposite Party in the near future. Aggrieved by this, the Complainant approached this Commission alleging deficiency in service on the part of the Opposite Party.
4. The Opposite Party has contested the present case and contended that the Complainant is not consumer under the Consumer Protection Act, 2019 as the Complainant invested the money to earn profit, which amounts to commercial purpose. The counsel for the opposite party further submitted that the said project is registered under HRERA and therefore, the present complaint cannot be adjudicated by this commission. He also submitted that the delay in the completion of the project was due to Force Majeure conditions i.e., litigations between the farmers and greater Noida industrial authority, orders passed by hon'ble NGT etc.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed ALLOWED PAGE 3 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. The fact that the Complainant had booked an apartment bearing no.
CD-C6-08-0802 with the Opposite Party is evident from the Apartment Buyer Agreement dated 07.07.2014 (Annexure C-3 with the present complaint). Payment to the extent of Rs. 1,42,01,417/- by the Complainant to the Opposite Party is also evident from the Statement of Account issued by the Opposite Party attached with the complaint (Annexure C-5).
8. The first issue which needs our adjudication is whether the Complainant falls in the category of 'consumer' provided by the Consumer Protection Act, 2019. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 2019 as it invested the money to earn profit, which amounts to commercial purpose. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties ALLOWED PAGE 4 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
9. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the flat purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant.
10. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the apartment for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such flats. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
11. The counsel for the Opposite Party further contended that the project in question is registered under RERA and therefore, this commission cannot adjudicate the present complaint. The law is no more res integra on this issue and is well settled by the dicta in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors." reported in (2021) 3 SCC 241, wherein the Apex Court has held as under:
"42. In a recent judgment delivered by this Court in Imperia Structures Ltd. Vs. Anil Patni, it was held that remedies under the Consumer Protection Act were in ALLOWED PAGE 5 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
addition to the remedies available under specials statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are "without prejudice to any other remedy available". We place reliance on this judgment, wherein it has been held that: (SCC p.811, paras 31-32). "31. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.10 of 14 an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.
32. Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 to the initiation of proceedings before a fora ALLOWED PAGE 6 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under the said section is "without prejudice to any other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act".
12. It is clear from the above dicta that the remedies available under the Consumer Protection Act are in addition to the remedies provided under the special statutes and if the proceedings under the Consumer Protection Act are initiated after RERA Act came into force, there is nothing in the RERA Act which bars such initiation. Relying on the above settled law, the contention of the Opposite party that this commission cannot adjudicate the present complaint on the ground that the project is registered under RERA is devoid of any merit and dismissed.
13. The last issue which is to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainant. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person ALLOWED PAGE 7 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.
14. In the present case, the Complainant contended that Opposite Party assured him to hand over the possession of the said apartment on or before 27.11.2018. However, the Opposite Party failed to handover the possession of the said apartment till date.
15. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the Complainant with ALLOWED PAGE 8 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
respect to complete the construction of the said project and had kept the hard-earned money of the Complainant.
16. The Opposite Party further submitted that the delay in the completion of the project was due to Force Majeure conditions i.e., litigations between the farmers and Greater Noida industrial authority, orders passed by Hon'ble NGT etc. however, on perusal of record we do not find any evidence which shows us that any force majeure condition caused delay in the said project. We are of the considered view that neither any new legislation was enacted nor any existing rule, regulation or order was amended stopping, suspending or delaying the construction of the said project. It is the sole responsibility of the Opposite Party to complete the construction of the said project within time. The Complainant cannot be tormented due to the faults of the Opposite Party. Therefore, this contention of the Opposite Party is devoid of any merit and is dismissed.
17. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e., Rs. 1,42,01,417/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 08.10.2024 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 08.12.2024;
ALLOWED PAGE 9 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024
MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
C. Being guided by the principles as discussed above, in case the Opposite Parties fails to refund the amount as per the aforesaid clause (A) on or before 08.12.2024, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
18. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of A. Rs. 5,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
19. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
20. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
21. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) JUDICIAL MEMBER Pronounced On:
08.10.2024 L.R.SM ALLOWED PAGE 10 OF 11 C. NO. 35/2021 D.O.D.: 08.10.2024 MR. MUKESH CHAUDHARY VS. IREO GRACE REALTECH PVT. LTD.
ALLOWED PAGE 11 OF 11