State Consumer Disputes Redressal Commission
Sadhna Jain vs M/S Tdi Infrastructure Ltd. on 31 January, 2024
CC.NO. 533/18 D.O.D.: 31.01.2024
SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 14.03.2016
Date of hearing: 10.05.2023
Date of Decision: 31.01.2023
COMPLAINT CASE NO.- 533/2018
IN THE MATTER OF
SADHNA JAIN
1342-A, RANI BAGH,
NEW DELHI- 110034.
(Through: Mr. Nitish Banka, Advocate)
...Complainant
VERSUS
M/S TDI INFRASTRUCTURE LIMITED,
10, BHAGAT SINGH MARG,
NEW DELHI- 110001.
(Through: Ms. Kanika Agnihotri, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 9
CC.NO. 533/18 D.O.D.: 31.01.2024
SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Shreshth Jain, Advocate for Complainant
Mr. Gandharv Garg, Proxy Counsel for Kanika Agnihotri,
OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainants before this Commission alleging deficiency of service by the Opposite party and has prayed the following:
a) To direct Op. to pay compensation amount of Rs.16,00,000/- towards mental agony, and torture and repeatedly changing the flat and keeping a lien of life savings of the Complainant for abnormal period of time and depriving her from the benefits and enjoyment of the property;
b) To pay litigation expenses of Rs.2,00,000/-;
c) To direct Op. to remove thick pipelines and vents on the roof of the Complainant's 13th Floor;
d) To direct complainant to charge the maintenance amount as per the common area divide among the occupants of the flat not as per the super area and do not charge hidden and arbitrary charges;
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SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
e) Pass any other order or further orders that may deem fit and just by this Hon'ble court in this regard in favour of the complainant and against the opposite party."
2. Brief facts necessary for the adjudication of the present complaint are that Complainant booked a flat bearing no. Z1-1003, having super area of 1930 sq. ft. with the Opposite Party in the project „TDI CITY" being developed at Kundli, Sonepat, Haryana, by paying up the initial booking amount of Rs.5,00,000/- vide receipt dated 19.02.2006. Subsequently, the Complainant paid an amount of Rs.6,69,740/- in the year 2008 and the allotment letter was given on 10.06.2008. The Complainant further paid an amount of Rs.5,07,976/- as EDC charges on 29.09.2010. Thereafter, the Complainant was shocked to know that the flat which the complainant had booked with the Opposite Party, did not have an approval from the appropriate authority to construct the 10th floor and thereby the Opposite Party cheated the complainant by selling her an unauthorized floor to which the complainant lodged a complaint with the EOW cell.
3. Pursuant to the complaint, Complainant was later allotted an alternative flat in V tower V2-1201 having a bigger super area of 2450 sq. ft. in the year 2012 as per the agreement dated 22.05.2012. The complainant protested because she had to shell out extra money and the Opposite Party had demanded rates on various other services and has also threatened the complainant that she would never get a flat if she refuse to accept the alternative accommodation as offered by them, it was a sky villa with 12th and 13th floor. The complainant accepted the alternative accommodation as she had no option and did not wish to lose her hard earned money and paid of beyond her financial capacity, she even took a loan of Rs. 25, 00,000/- to meet the financial demands.
ALLOWED PAGE 3 OF 9
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SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
4. The Complainant realised the flat was not made as per the layout plan and hence the Complainant again lodged a complaint in the EOW and pursuant to that the Complainant was again offered a new flat. This time flat bearing no. 1201 in W-5, measuring 3092 Sq. Ft. bigger than the second flat i.e., V2- 1201 was allotted, to which complainant agreed to purchase the said flat as she has now invested Rs 40,00,000/- of her hard earned money. The Complainant in September 2014 was offered the flat and she had no option but to accept the offer and it was backside of the main road and thereby deprived the complainant from the option which amounts to unfair trade practice and deficiency in the service on the part of Opposite Party conceding to the offer.
5. The Complainant entered into an agreement with the Opposite Party dated 03.02.2015, and again offer of possession letter was generated and by 28.02.2015, she had paid all the consideration, the complainant had to bear the enhanced EDC charges and service tax (2010 onwards) which would not been paid by the complaint if she would have got timely possession. The complainant was promised that she would be getting possession of said flat within a period of 10-15 days but the Opposite Party did not complete its task till July. The complainant again approached CREDAI for relief and they asked the Opposite Party to hand over the possession within 15 days along with the registry of the flat but on 13.10.2015 only complainant had got a vacant possession. The Complainant was handed over the possession of the said flat after a delay of about 6 years, in 2015. Also the total consideration amount paid by the Complainant is Rs.69,59,914/- for getting the said possession.
6. The 13th floor of the tower on which the Complainant‟s property is situated, had thick pipes of various nature on all walls, which is a threat not only to ALLOWED PAGE 4 OF 9 CC.NO. 533/18 D.O.D.: 31.01.2024 SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
complainant privacy and to the security of the unit (12th and 13th floor) but also detrimental to health. Opposite Party, on the other hand did not responded to Complainant‟s requests and compelled the complainant to take the possession of the flat and also demanded arbitrary and excessive maintenance charges. The terms of maintenance agreement are not acceptable to the complainant but Opposite Party compelled the complainant to sign the maintenance agreement and if she refuse to sign the agreement then the complainant would be deprived of basic amenities and therefore again the Opposite Party is playing a dominant role and adopting unfair trade practices and trying to extort money even after delivery of the possession. Till date the Opposite Party neither paid nor adjusted the delayed payment amount. Therefore, the Complainant has approached this Hon‟ble Commission for the resolution.
7. The Opposite Party has contested the present case and has denied the allegations levelled by the Complainant.
8. The Complainants have duly filed their Evidence by way of Affidavit in order to prove their averments on record and their written arguments.
9. We have perused the material available on record and heard the counsel for the Complainant.
10. The fact that the Complainant booked a apartment with the Opposite Party and payment to the extent of Rs. 69,59,914/- has been made by the Complainant which is also evident from the receipts issued by the Opposite Party attached with the present complaint. Further, it is also evident that the Complainant has got the possession of W5-1201 apartment on 13.10.2015.
11. The main question for consideration before us is whether the Opposite Party is actually deficient in providing its services to the Complainant or not. The expression Deficiency of Service has been dealt with by the Hon‟ble ALLOWED PAGE 5 OF 9 CC.NO. 533/18 D.O.D.: 31.01.2024 SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
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 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 ALLOWED PAGE 6 OF 9 CC.NO. 533/18 D.O.D.: 31.01.2024 SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
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.
12. At this stage, we deem it appropriate to refer to the Apartment Buyer agreement dated 22.05.2012 entered into by both the contesting parties. It reflects that the Opposite Party was bound to complete the construction of the said apartment in stipulated period. Further, the Opposite Party failed to offer possession within the stipulated period and offered a new flat vide Apartment Buyer Agreement dated 03.02.2015. Lastly, the Complainant got the actual vacant possession of the apartment on 13.10.2015.
13. 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 respect to the time for completing the construction of the said apartment and handing over the possession of the said apartment.
14. Further, pursuant to the Complaint filed by the Complainant in the EOW, he was allotted an alternative flat in V tower V2-1201 and is evident from the agreement dated 22.05.2012. The Complainant came to know that the flat was not made as per the layout plant and even the Opposite Party was also demanding various other charges.
15. The Complainant again approached the EOW for relief, and filed a Complaint. The Complainant was again offered new flat W-5, 1201. As left with no option the Complainant agreed and entered into an agreement on ALLOWED PAGE 7 OF 9 CC.NO. 533/18 D.O.D.: 31.01.2024 SADHNA JAIN VS. TDI INFRASTRUCTURE LTD.
03.02.2015. After, so much delay the possession was handed over to the Complainant on 13.10.2015.
16. Relying on the above stated facts, we hold that the Opposite Party is involved in exercising Unfair Trade Practices in providing its services to the Complainant as the Opposite Party had given false assurance to the complainant with respect to the allotment of the said apartment and handing over of the possession of the said apartment.
17. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon‟ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
18. Returning to the facts of the present complaint, the perusal of the record shows that the Complainant avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to handover the said apartment within stipulated period aggrieved by which, the Complainant has sought the compensation for delay in handing over possession of the said apartment. Hence, the Opposite Party failed to handover the possession within reasonable time and it is only due to this reason, the compensation for delay is sought from the Opposite Party.
19. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party:
A. To remove thick pipelines and vents on the roof of the Complainant‟s 13th floor and complete the construction as per the layout map within 3 months from the date of the present judgment.
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B. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainant; and C. The litigation cost to the extent of Rs. 50,000/-.
20. The aforesaid clause (B) & (C) is subject to the condition that the Opposite Party pays the entire amount on or before 31.03.2024;
21. Being guided by the principles as discussed above, in case the Opposite Party fails to pay the amount as per the aforesaid clause (B) & (C) on or before 31.03.2024, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from 13.10.2015 (the date of handing over of possession to the Complainant) by the Opposite Party till the actual realization of the amount.
22. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
23. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
24. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
31.01.2024 L.R. - SM ALLOWED PAGE 9 OF 9