State Consumer Disputes Redressal Commission
Vivek Ahuja & Anr. vs M/S Vipul Limited on 8 February, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:8.2.2017 Complaint Case No.85/2017 In the matter of: Mr. Vivek Ahuja, S/o Mr. Des Raj Ahuja H-702, Suncity Heights, Sector-54, Gurgaon Mr. Des Raj Ahuja S/o Shri Gopal Das Ahuja H-702, Suncity Heights, Sector-54, Gurgaon ....Complainants Versus M/s Vipul Limited Through its Director 9A, 3rd Floor, Vasant Square Mall Sector-B, Pocket-5 Vasant Kunj, New Delhi-110070 ............Opposite Parties CORAM Justice Veena Birbal, President. Ms. Salma Noor, Member.
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or Justice Veena Birbal, President This is a complaint under Section 12 of the Consumer Protection Act 1986 (in short "the Act") filed by the complainants wherein following prayers have been made:-
Direct the Opposite Party to pay the Claimant interest compounded quarterly @ 18% from 27th November 2011 6th June 2016 (date of offering possession) on the amount paid to it for the delay in handing over possession beyond stipulated period, totalling Rs.65,54,682.
Direct the Opposite Party to pay the Claimant an additional interest as compounding interest @18%, on non-payment of the above mentioned penalty interest, for period 7th June 2016 till 30th Nov 2016 (i.e. period subsequent to offer of possession), which is at the same rate at which the Opposite Party is charging its customers for delay in payment, amounting to Rs.5,68,910/-
Direct the Opposite Party to refund the amount of Rs.3,08,311/- wrongfully collected as service tax, VAT and other taxes from the Complainants.
Direct the Opposite Party to pay the Complainants expected rental income of Rs.45,000/- per month on the completed unit from 27th November 2011 till date of possession letter i.e. 6th June 2016 amounting to Rs.24,30,000.
Direct the Opposite Party to pay costs of this complaint It is stated that the Complainant No.1 is a highly qualified salaried professional and Complainant No. 2 is a senior citizen and father of the Complainant No. 1. OP is a real estate infrastructure and developer having its Registered Office at Regus Rectangle, Level 4, Rectangle 1 D4, Commercial Complex, Saket, New Delhi-110017. It is alleged that the predecessor interest of the complainants had booked a commercial space No.201, measuring 97.73 Sq. meters in the Vipul World Commercial, Sector 48, Gurgaon, Haryana ('Unit') with OP in March 2006. The complainants purchased the aforesaid unit from their predecessor in March, 2008. Thereafter the complainants had executed a Buyer's Agreement directly with the Opposite Party wherein it was agreed that possession of the unit would be given within 24 months of the date of agreement. The total cost of the unit was initially Rs.50,45,508. It was a construction linked plan and the complete payment was made. It is alleged that the Service Taxes, VAT, Swatch Bharat Cess, Krishi Kalyan Cess were also charged by the OP. It is alleged that the complainants in all had paid Rs.58,51,007/- inclusive of aforesaid taxes. The construction of the Project continued at tardy pace and could not completed till Nov., 2011. It is further alleged that from Nov., 2011 to June, 16 various correspondence was exchanged between the parties and the OP kept on extending the date of handing over of possession as the project was not completed. Ultimately, on 6.6.16 the possession of the unit was offered to the complainants.
It is alleged that there is delay in handing over of possession to the complainants. It is alleged that in case of delay on the part of consumer, the OP had charged 18% interest on delay payment. It is alleged that there is deficiency in service on the part of OP in not delivering the possession within agreed time. Complainants are entitled for interest at the same rate on the payment made by them to OP for the period of delay in handing over of possession. It is alleged that the deficiency in service of the Opposite Party is further evidenced from the fact that additional amounts in terms of service tax, VAT and other cesses had been wrongly collected from the complainants. It is alleged that the OP has blatantly defaulted in its obligations to handover possession in terms of Buyer's Agreement. It is alleged that the complainants were forced to sign documents giving up all their claims and were informed that the possession of the property would not be handed over without relinquishment of all claims against the OP. The complainants have filed the present claim seeking directions to OP to pay amount under different heads as has been stated above.
We have heard Counsel for the complainant and perused the complaint as well as documents annexed therto.
Perusal of documents annexed with the complaint show that there is letter dated 6.6.16 of OP informing the complainants that commercial unit was ready for possession. Thereupon, complainants sent a letter dated 5.8.16 raising the issue of Service Tax, VAT etc. by the OPs upon the complainants and the same was also raised vide e-mail dated 22.8.16.. In the aforesaid correspondence complainants had also raised issue about payment of interest to them on the amount received by OP for delay in handing over of the possession.
Perusal of record also shows that on 7.9.16, the complainant had written a letter to the OP whereby they have withdrawn unconditionally all the letters/e-mails written to the OP raising their protest. The aforesaid letter prim facia shows that complainants had taken possession from the OP on 7.9.16. The correspondence on record show that the complainants had also signed undertaking at the time of taking the possession. After taking the possession unconditionally, the complainants had again sent e-mails dated 23.10.16 and 19.11.16 making allegations that OP had pressurised them for withdrawal of previous letters regarding compensation for delay It is alleged that complainants were forced to sign alleged undertaking. However no such undertaking is placed on record. Prima facie there is nothing on record to substantiate that they were forced to withdraw the protest as has been alleged. The possession is delivered on 7.9.16 whereas the e-mail is sent on 23.10.16 making allegations against OP. There is sufficient gap between the two. The same is an after thought. Further the unit booked is a commercial unit. There is no pleading that same was booked for the purpose of earning livelihood by means of self-employment. In these circumstances complainants can't be said to be "Consumer" also within the meaning of the Act. The complaint is, therefore, not maintainable. Accordingly, the same stands dismissed at admission stage.
Copy of this judgment be sent to the complainants free of costs as per rules.
File be consigned to Record Room.
(Justice Veena Birbal) (Salma Noor) Member ak