State Consumer Disputes Redressal Commission
Varun Rai Kapoor vs M/S Splendor Landbase Ltd. on 26 September, 2022
C.C 455/2016 MR. VARUN RAI KAPOOR VS. M/S SPLENDOR LANDBASE LIMITED D.O.D.: 26.09.2022
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 02.05.2016
Date of hearing: 08.07.2022
Date of Decision: 26.09.2022
COMPLAINT CASE NO.- 455/2016
IN THE MATTER OF
MR. VARUN RAI KAPOOR
SON OF MR. DEWAN DALIP RAI KAPOOR,
R/O C-96, DEFENCE COLONY
NEW DELHI-110024.
(Through: Mr. Rajan Khosla, Advocate)
...Complainant
VERSUS
M/S SPLENDOR LANDBASE LIMITED.
THROUGH MR H. VIKRAM BHATIA
M.D. & C.E.O.
REGISTERED OFFICE
501-511, 5TH FLOOR, SPLENDOR FORUM
PLOT NO.3, DISTRICT CENTRE, JASOLA,
NEW DELHI-110025.
(Through: SAMVID LEGAL)
...Opposite Party
ALLOWED PAGE 1 OF 10
C.C 455/2016 MR. VARUN RAI KAPOOR VS. M/S SPLENDOR LANDBASE LIMITED D.O.D.: 26.09.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: None for the parties.
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 Opposite Party and has prayed the following reliefs:
a. direct the respondent to pay to the complainant the sum of Rs.20,52,505/- (Rupees twenty lakhs fifty two thousand five hundred and five only);
b. direct the respondent to pay interest @24% per annum on the amounts paid by the complainant from the dates of payment till date of realization; c. hold the opposite party guilty of deficiency in service; d. award compensation and damages amounting to Rs.5 Lakhs (Rupees five lakhs) in favour of the complainant;
e. direct the opposite party to pay a sum of Rs.60,000/- (Rupees sixty thousand only) to the complainant on account of litigation expenses;
f. Pass such other and further orders as are deemed fit and proper in the facts and circumstances of the case. g. Direct the Opposite Parties to pay a sum of Rs. 1,00,000/-(Rupees One Lakh Only) towards Litigation Charges.
h. Direct the Opposite Party to pay the cost of present complaint;
i. Any other or further relief which this Hon'ble Forum deems fit and proper may also be in favour of the complainant and against the Opposite Party.
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2. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked office space in the upcoming project of the opposite party situated at sector 83, Gurgaon, Haryana. The complainant paid huge amount of Rs. 12,75,000/- till 14.03.2008 but was shocked to see that there was no construction work at the site. Subsequently, the complainant vide letter dated demanded refund of the sum of Rs. 14,75,000/- deposited by him as there was inordinate delay in the said project. Thereafter, on advice of the opposite party, the complainant via letter dated 01.09.2010 requested the opposite party to change his booking from office space to retail space. The opposite party changed the booking of the complainant from office space to retail space in its project "Splendor Galleria" at sector-83, Gurgaon, Haryana. However, the construction of the said project was not progressing as planned by opposite party, therefore, the complainant again changed his booking from 'splendor galleria' to project 'splendor epitome' situated at sector 62, golf course extension road. Consequently, the opposite party allotted retail space on the ground floor, flat no SE/027 in the splendor epitome.
3. More so, Space buyers' agreement dated 28.04.2014 was executed between the parties. As per clause 9.8 of the said agreement the opposite party was to hand over the possession of the said shop within 42 months with additional period of 6 months subject to force majeure condition. The complainant visited the site of the said project and shocked to see that no excavation had started but the opposite party was demanding money as per payment plan.
Therefore, the complainant through his attorney demanded refund of amount from the Opposite Party, to which he was assured that the same would be refunded and rate of interest will be decided later.
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However, the complainant received letter dated 17.12.2015 from the Opposite Party, wherein the builder accepted that the delay in project was due to unforeseen technical and other inevitable reason beyond the control of Opposite Party. Aggrieved by the acts of the opposite party, the complainant sent letter dated 09.02.2016 to the Opposite Party seeking refund of Rs. 20,52,505/- along with interest but neither any satisfactory response was received from the builder nor the money has been refunded till date.
4. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the Complainant is not consumer under the Consumer Protection Act, 1986 as the he invested the money to earn profit, which amounts to commercial purpose.
5. The counsel of the Opposite Party submitted that the present complaint is pre-mature as the opposite party was to complete the construction of the said project within the period of 42 months with additional period of 6 months from the date of agreement i.e. by i.e. by 28.04.2018 and the present complaint was filed on 02.05.2016. He further submitted that there was default in making payment on the part of the complainant and he had paid only Rs. 20,52,205/- towards the total sale consideration of Rs. 63,67,555/-. Pressing the aforesaid contentions, the Opposite Party prays for dismissal of the present complaint.
6. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have duly filed their Evidence by way of Affidavit in order to prove their averments on record.
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7. We have perused the material available on record and heard the counsel for the parties.
8. The fact that the Complainant had booked a retail space in project 'splendor epitome' with the Opposite Party is evident from the Space Buyer Agreement dated 28.04.2014 (Annexed-C13). Payment to the extent of Rs. 20,52,505/- by the Complainant for the said retail shop is not disputed by the opposite party.
9. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 1986 as he 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 failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
10. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the property 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.
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11. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the said shop 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 flat. The Opposite Party also failed to prove that the said shop was not purchased for earning livelihood by means of self-employment. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, this objection raised on behalf of the Opposite Party is answered in the negative.
12. The counsel of the Opposite Party submitted that the present complaint is pre-mature as the opposite party was to complete the construction of the said project within 42 months with additional period of 6 months from the date of agreement i.e., by 28.04.2018 and the present complaint was filed on 02.05.2016.
13. It is clear from the record that as per agreement dated 28.04.2014, the Opposite Party had to handover the possession of the said flat by 28.04.2018 but the present complaint was filed prematurely in the year 2016. However, we could see that even till today, the Opposite Party has not handed over the possession of the said shop to the Complainant. It shows that the Opposite Party failed to fulfill its contractual obligations as per agreement dated 28.04.2014. Even the Opposite Party in its written submissions filed on 22.01.2019 i.e., after the expiry of the stipulated period, neither mentioned the stage at which construction of the project is going on nor provided the date of handing over possession of the said flat.
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14. In view of the aforesaid, it is clear that the Opposite Party even today is not in a position to handover the possession of the said shop. And the present complaint has matured during the course of proceedings. Therefore, this contention of the Opposite Party is devoid of any merit and is dismissed.
15. The next contention raised by the opposite party is that the complainant had defaulted in making timely payments as per payment plan attached in the agreement dated 28.04.2014. It is clear from the payment plan annexed at page 62 of the complaint that the complainant had to pay around Rs. 20,00,000/- till start of excavation and had to make further payments on later progress of construction. It is clear from the record that the Complainant had duly made payment of Rs. 20 lakhs till the start of excavation of said project. It is further pertinent to note that the opposite party failed to show us that the construction of 1st basement roof slab was completed by the opposite party before demanding further payments from the Complainant. Even the photographs attached at page 30 to 36 of the rejoinder shows that the construction was still at the stage of excavation and the basement first roof slab of the said project is still incomplete.
16. In these circumstances we hold that the opposite party had not completed the construction of the project as per said agreement and therefore there is no question of making further payments by the complainant for the said retail shop. Hence, the contention of the Opposite Party that the Complainant defaulted in making payments holds no merit.
17. It is now appropriate to refer to the case of 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:
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"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 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.
18. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the possession of the said retail shop was not handed over within the stipulated period as per agreement dated 28.04.2014 and the ALLOWED PAGE 8 OF 10 C.C 455/2016 MR. VARUN RAI KAPOOR VS. M/S SPLENDOR LANDBASE LIMITED D.O.D.: 26.09.2022 Opposite Party had kept the hard-earned money of the Complainant for 9 years
19. 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. 20,52,505/- 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 26.09.2022 (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 26.11.2022;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 26.11.2022, 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.
20. 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. 1,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
21. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
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22. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On:
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