State Consumer Disputes Redressal Commission
Urmil Goyal vs M/S Piyush Buildwell India Ltd. on 19 July, 2022
C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 21.04.2016
Date of hearing: 12.05.2022
Date of Decision: 19.07.2022
COMPLAINT CASE NO.- 411/2016
IN THE MATTER OF
SMT. URMIL GOYAL
AGED 61 YEARS,
W/O-SH. R.P. GOYAL,
R/O- G-47, SAKET,
DELHI-110017.
(Through: Priyam Agarwal & Pravesh Bahuguna, Advocates)
...Complainant
VERSUS
1. M/S PIYUSH BUILDWELL INDIA LTD.
THROUGH ITS DIRECTORS
HAVING REGISTERED OFFICE AT
A-16/B-1, MOHAN CORPORATIVE INDUSTRIAL ESTATE
MAIN MATHURA ROAD,
NEW DELHI-110014.
2. MR. PUNEET GOYAL,
DIRECTORS OF M/S PIYUSH BUILDWELL INDIA LTD.
A-16/B-1, MOHAN CORPORATIVE INDUSTRIAL ESTATE
MAIN MATHURA ROAD,
NEW DELHI-110014.
3. MR. ANIL GOYAL,
DIRECTORS OF M/S EARTH INFRASTRUCTURES LTD.
A-16/B-1, MOHAN CORPORATIVE INDUSTRIAL ESTATE
MAIN MATHURA ROAD,
NEW DELHI-110014.
4. MR. AMIT GOYAL,
ALLOWED PAGE 1 OF 12
C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022
MANAGING DIRECTOR OF M/S EARTH INFRASTRUCTURES LTD.
A-16/B-1, MOHAN CORPORATIVE INDUSTRIAL ESTATE
MAIN MATHURA ROAD,
NEW DELHI-110014.
(Through: Kapil Kher, Advocate)
...Opposite parties
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE SH. RAJAN SHARMA, (JUDICIAL MEMBER)
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
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 and unfair trade practice by the opposite parties and has prayed the following:
a) direct the Opposite Parties to execute the Builder Buyer Agreement with the Complainants on the terms and conditions as agreed to under old application forms, in pursuance of which the allotment was made.
b) direct the Opposite Parties to pay a compensation amount of Rs. 10 lakhs to the Complainants in respect of flat booked with the Opposite Parties for deficiency in service suffered by complainants and unfair trade practices adopted by OPs.
c) award cost of this complaint in favour of the Complainants and against the Opposite Parties.
d) any other relief which may be deemed appropriate by the Hon'ble commission.
2. Brief facts necessary for the adjudication of the present complaint are that on 09.02.2007, the Complainant booked a flat bearing no. E-113 with the opposite party no. 1 in the project 'Piyush Heights' situated at Sec-89, Faridabad, Haryana. The allotment letter was issued by the OP no. 1 on 13.07.2007. Thereafter, flat buyer ALLOWED PAGE 2 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 agreement was executed between the parties on 14.11.2008. The complainant opted for construction linked plan and made full payment of Rs. 31,76,642/- to the OP no. 1. After obtaining full payment, the OP no.1 issued a no dues certificate to the complainant on 03.11.2010. The agreement dated 14.11.2008 provides that the possession of the said flat will be handed over to the complainant within 36 months from the date of agreement. However, the possession of the said flat was offered by the OP no. 1 vide letter dated 31.03.2015 along with an unjustified demand of Rs. 12,82,687.92/-.
Further, the opposite party no. 1 to cover up the delay caused in offering possession of the said flat, sent a New buyer's agreement dated 26.11.2014 for signatures and took the previous Buyer agreement dated 14.11.2008 from the complainant on the pretext of offering possession. Aggrieved by the illegal demand of the OP no. 1 and execution of new buyer agreement for the already allotted flat, the complainant has approached this commission.
3. The Opposite Party No. 1 has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party no.1 submitted that the complainant is not a consumer under the Consumer Protection Act, 1986 and this commission does not have the territorial jurisdiction to try the present complaint as the subject property is situated in Faridabad, Haryana.
4. The counsel for the opposite party no.1 submitted that the complainant failed to comply with the schedule of payment. He further submitted that the area of the flat was increased from 1446.070 sq. ft. to 1576 sq. ft. in the subsequent buyer's agreement and the New Buyer's agreement superseded the previous agreement.
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Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party no.1 prayed that the complaint should be dismissed.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party no.1. Both the parties have filed 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 booked the flat bearing no. E-113 in the project 'Piyush Heights' is evident from the allotment letter dated 13.07.2007 issued by the opposite party no. 1. (Annexure-4 of the complaint). Payment to the tune of Rs. 31,76,642/- made by the complainant to the opposite party no. 1 is clear from the receipts issued by the opposite party no. 1. (Annexure 3 of the complaint) WHETHER COMPLAINANT FALL IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
8. The Opposite Party contended that the complainant is not Consumer as defined under the Consumer Protection Act, 1986 as she invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. .......A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a ALLOWED PAGE 4 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
9. 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 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.
11. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the flat 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 ALLOWED PAGE 5 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
WHETHER THIS COMMISSION HAS THE TERRITORIAL JURISDICTION TO ADJUDICATE THIS COMPLAINT?
12. The next question for consideration is whether this commission has the jurisdiction to adjudicate the present complaint. We deem it appropriate to refer to Section 17(2) of the Consumer Protection Act, 1986 which provides as under:
"(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
13. Analysis of Section 17 of the Consumer Protection Act, 1986 leads us to the conclusion that clause 17(2) of the Act provides the extent of territorial jurisdiction, wherein it has been provided that the state commission shall have the jurisdiction to entertain cases where opposite party at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or the cause of action arose.
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14. Having discussed the statutory position, the facts of the present case reflect the registered office of the Opposite Party is at A-16/B-1, Mohan Corporative Industrial Estate, Main Mathura Road, New Delhi-110014. Since the registered office falls within the territory of Delhi, this commission has the territorial jurisdiction to adjudicate the case. To strength the aforesaid findings, we tend to rely on Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, wherein it has been held as under:
"It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint."
15. Relying on the above settled law, we are of the view that this commission has the territorial jurisdiction to adjudicate the present complaint.
WHETHER THE COMPLAINANT HAS DEFAULTED IN MAKING TIMELY PAYMENTS IN THE PRESENT CASE?
16. The Opposite party no. 1 contended that the complainant failed to comply with the schedule of payment and therefore, defaulted in making timely payments for the said flat. Perusal of Annexure-2 filed with the complaint reflects that the total amount for the said flat is Rs. 31,76,642/-, which the complainant had duly paid to the opposite party no. 1. It is further clear from the letter dated 03.11.2010 (Annexure-5) issued by the opposite party no. 1 that no ALLOWED PAGE 7 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 due remains on the part of the complainant with respect to the said flat.
17. In these circumstances, we hold that once the opposite party no. 1 had issued NO DUE letter dated 03.11.2010 to the complainant for the said flat, there is no doubt that the complainant defaulted in making timely payments in the present case. Therefore, the contention of the opposite party no.1 that the complainant failed to comply with the schedule of payment is without merit. WHETHER THE OPPOSITE PARTY NO.1 IS DEFICIENT IN PROVIDING ITS SERVICES TO THE COMPLAINANT?
18. Having discussed the preliminary objections raised on behalf of the Opposite Party no.1, the next issue which arises is whether the Opposite Party no.1 is actually deficient in providing its services to the Complainant or not.
19. It is clear from the record that the opposite party no. 1 issued no due letter dated 03.11.2010 to the complainant, which reflects that all the payment had been made by her for the said flat. The letter dated 31.03.2015 (Annexure -6) issued by the opposite party no. 1, wherein the possession of the said flat was offered to the complainant, also includes a demand of Rs. 12,82,687/- for the said flat.
20. Once the opposite party no. 1 issued NO DUE letter to the complainant for the said flat on 03.11.2010, we do not see any justification for demanding a sum of Rs. 12,82,687/- at the time of offering possession from the complainant. After making full payment for the said flat, there is nothing left to be done on the part of the complainant and the possession should be offered without any impediment. Since the opposite party no. 1 failed to do so, there is deficiency in service on its part.
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21. The opposite party no.1 further contended that the parties had signed a New Buyer's agreement dated 26.11.2014, which supersedes the previous buyer agreement. On perusal of record, it is noted that the opposite party instead of giving possession of the said flat executed a New buyer Agreement dated 26.11.2014 with the complainant towards the same flat and also increased the super area of the said flat from 1446.070 sq. ft. to 1576 sq. ft. The execution of the New Agreement dated 26.11.2014 changed the date of handing over possession of the said flat from 14.06.2011 to 26.11.2017.
22. It is further noted that the change in super area of the said flat was done without taking consent from the complainant. At this stage, we deem it appropriate to refer to the Pawan Gupta vs 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 ALLOWED PAGE 9 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 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 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."
23. Perusal of the above settled law provides 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).
24. Returning to the facts of the present case, we fail to find any document which shows that there was change in either the total area of the flat or in the area of any of the common buildings or any ALLOWED PAGE 10 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 change in the total area of the project. Moreover, the opposite party no.1 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 the increase of the super area of the said flat and charging of excess amount for the said increased area by the opposite party no. 1.
25. We further see no justification on the part of opposite party no. 1 to execute New buyer's agreement dated 26.11.2014 after the issuance of no dues letter to the complainant on 03.11.2010. The execution of the New Buyer Agreement dated 26.11.2014 for the said flat amounts to unfair trade practice on the part of opposite party no. 1.
26. It is further clear from the record that the opposite party no. 1 had to handover the possession of the said flat by 14.11.2011 as per the previous buyer agreement dated 14.11.2008 but the possession was offered to the complainant on 31.03.2015, which is after a delay of around 4 years. Therefore, the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party no.1 had given false assurance to the complainant with respect to the time for handing over the possession of the said flat.
27. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party no.1 to handover the physical, vacant and peaceful possession of the said Flat, complete in all respects to the complainant without raising any demand within 60 days from the date of present judgement.
28. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party no. 1 is directed:
A. To pay the penalty for delayed possession @ Rs. 5 per Sq. ft per month from 14.11.2011 i.e. the date on which ALLOWED PAGE 11 OF 12 C. NO. 411/2016 URMIL GOYAL VS. M/S PIYUSH BUILDWELL INDIA LTD. D.O.D.: 19.07.2022 possession of the said flat has to be given to the Complainant (as per clause 27(a) of the agreement dated 14.11.2008) till the actual date of handing over possession of the said flat to the Complainant.
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/-.
29. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
30. 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.
31. File be consigned to record room along with a copy of this Judgment.
( JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) JUDICIAL MEMBER Pronounced On: 19.07.2022 ALLOWED PAGE 12 OF 12