State Consumer Disputes Redressal Commission
Anand Kumar & Anr. vs Tdi Infrastructure Ltd. on 10 August, 2023
C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:29.05.2019
Date of hearing: 24.05.2023
Date of Decision: 10.08.2023
COMPLAINT CASE NO.- 542/2019
IN THE MATTER OF
1. MR. ANAND KUMAR,
S/O LATE MR. S.M. GUPTA,
2. ROHIT GUPTA,
S/O MR. ANAND KUMAR
BOTH RESIDING AT:
B-39, GUJRAWALA TOWN PART-1,
DELHI-110009.
(Through: THE LEGAL LENS)
...Complainants
VERSUS
TDI INFRASTRUCTURE LTD.,
11, TOLSTOY, VANADANA BUILDING,
CONNAUGHT PLACE,
NEW DELHI -110001.
(Through: Mr. Vaibhav Agnihotri, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 9
C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, (MEMBER) JUDICIAL
HON'BLE MR. J.P. AGRAWAL, (MEMBER) GENERAL)
Present: Ms. Rashi Jain along with Mr. Mihir Garg, Counsel for
the Complainants.
Mr. Ankit Khera, proxy counsel for Mr. Vaibhav
Agnihotri
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 on the part of Opposite Party and has prayed the following reliefs:
a) To hand over the peaceful and vacant possession of unit no. 902 on the Ninth Floor of tower 10
b) To withdraw the letter dated 11.09.2018 more particularly to drop the demand of Rs.7,96,263.70
c) To pay a sum of Rs. 5,00,000 as damages/compensation for keeping the complainants in dark about alteration in area, demanding and accepting money in excess of the amount payable for the area being allotted, further delay in handing over the possession and mental agony and harassment.
d) To pay compounded interest @18% on the total amount collected from the complainants for the period of delay in offering possession.
e) To pay the cost for the complaint.
f) Order for any other relief that this commission may
deem fit and proper be passed in favour of the complainants and against the respondents.
2. Brief facts necessary for the adjudication of the present complaint are that in the year 2011, the Complainants booked a unit bearing no.902 with the Opposite Party in the project 'TDI Tuscan Heights' situated at Kundli, Sonepat, Haryana. Thereafter, an apartment ALLOWED PAGE 2 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023 buyer agreement was executed between the parties on 19.09.2012. As per clause 30 of the said agreement, the Opposite Party was to hand over the possession of the said unit within 30 months from the date of the agreement. However, the Opposite Party failed to hand over the possession of the said unit till date.
3. The Complainants had made a total payment of Rs. 28,16,547/- towards the total consideration of Rs. 29,27,996/- but the Complainants were shocked to receive a possession letter dated 11.09.2018 along with a demand of Rs. 7,96,263.70/- instead of Rs.1,11,449/- in order to get possession of the said unit. Upon scrutiny of the perceived error and subsequent discrepancy in the said amount, the Complainants realized that the super area of the property had been arbitrarily increased by 205.2 sq. ft., i.e., from 1080 sq. ft. to 1285.2 sq. ft., without any justification. The Complainants also sent emails dated 26.09.2018, 03.10.2018, and a letter dated 11.01.2019 seeking justification for the arbitrary increase in the saleable area of the said unit but did not receive any response from the Opposite Party. Thus, left with no other option and alleging deficiency of service & unfair trade practice on the part of the Opposite Party, the Complainants approached this Commission.
4. During the course of the proceedings, a notice was issued to the Opposite Party on 02.07.2017. Thereafter, on 16.09.2019, the Opposite Party filed the memo of appearance and undertook to file the vakalatnama within 7 days. It was also directed to file the written statement within 30 days. However, the Opposite Party failed to file the written statement within the stipulated time. Consequently, upon perusal of the order dated 12.03.2021, the written statement filed by the Opposite Party was not taken on record. Since the Opposite Party has failed to file the written statement within the stipulated period, ALLOWED PAGE 3 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023 the averments made by the Complainants in the present case remain unrebutted.
5. The Complainants have duly filed his evidence and written arguments
6. We have perused the material available on record and heard the counsel for the parties.
7. The fact that the Complainants had booked a unit with the Opposite Party is evident from the Apartment Buyer's Agreement dated 19.09.2012 annexed with the Complaint. Payment to the extent of Rs. 29,27,996/- by the Complainants to the Opposite Party is evident from the receipts issued by the Opposite Party. (Annexure attached with the Complaint in list of documents).
8. The only question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainants. 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 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 ALLOWED PAGE 4 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023 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.
9. At this stage, we deem it appropriate to refer to clause 30 of the Apartment Buyer's Agreement dated 19.09.2012 entered into by both the contesting parties. It reflects that the Opposite Party was bound to hand over the possession of the said unit within 30 months from the date of execution of the said agreement. However, the possession of the said unit has not been handed over to the Complainants till date.
10. Furthermore, the Complainants submitted that the Opposite Party arbitrarily and illegally increased the super area of the said unit. As a result, the Opposite Party also added an extra amount of Rs. 7,10,212/- to the last demand. Upon perusal of the record, it is clear that the Opposite Party increased the super area from 1080 sq. ft. to 1285.2 sq. ft. without providing any justification. To resolve this issue, we deem it appropriate to refer to the Pawan Gupta vs ALLOWED PAGE 5 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023 Experion Developers Pvt. Ltd. reported as I (2021) CPJ 72 (NC), wherein the Hon'ble National Commission has held as under:
"17. The complaints have been filed mainly for two reasons. The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession. In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date. The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area. Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed. The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/buildings and the flats. This has not been done. In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the ALLOWED PAGE 6 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023 final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required."
11. On perusal of the above settled law, it is clear that once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings which were specified at the time of approval cannot be changed until there is a change either in the area of the flat or in the area of any of the common buildings or there is a change in the total area of the project (plot area).
12. Returning to the facts of the present case, we failed to find any document which shows that there was change in either the total area of the unit or in the area of any of the common buildings or any change in the total area of the project. Moreover, the Opposite Party failed to show any comparison/ difference in the areas of the original approved space and the common spaces/buildings which were finally allotted by the Opposite Party to the buyers. Therefore, we do not see any justification in increasing the super area of the said unit and charging the excess amount for the said increased area by the Opposite Party. Consequently, we consider the demand letter ALLOWED PAGE 7 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023 dated 11.09.2019 illegal and unjust, and the Complainants cannot be made to pay the said amount.
13. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite Party had given false assurance to the Complainants with respect to the time for handing over the possession of the said unit and kept the hard-earned money of the Complainants.
14. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite party to hand over peaceful and vacant possession (Complete in all respect) of the unit no.902 to the Complainants within one months after receiving an outstanding amount of Rs. 1,11,449/- from the Complainants as per payment provided in Apartment Buyer's Agreement.
15. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed:
A. To pay the penalty for delayed possession @ Rs. 5 per Sq. ft per month from 20.03.2015 (the date on which possession of the said unit has to be given to the Complainants) till the actual date of handing over possession of the said unit to the Complainants. B. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainants; and C. The litigation cost to the extent of Rs. 50,000/-.
16. The Opposite party is further directed, not to raise any further demands from the Complainants with respect to the said unit.
17. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
ALLOWED PAGE 8 OF 9 C. NO.542/2019 MR. ANAND KUMAR AND ANR. VS.TDI INFRASTRUCTURE LTD. D.O.D.: 10.08.2023
18. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
19. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
10.08.2023 ALLOWED PAGE 9 OF 9