State Consumer Disputes Redressal Commission
Jugnu Dhillon vs Imperia Structure Ltd & Anr. on 3 January, 2022
C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 18.02.2013
Date of hearing: 21.12.2021
Date of Decision: 03.01.2022
COMPLAINT CASE NO.- 70/2013
IN THE MATTER OF
MRS. JUGNU DHILLON,
R/o- C-1058, SUSHANT LOK- I,
GURGAON - 122002
(Through: Mr. Deepak Kohli, Advocate)
...Complainant
VERSUS
IMPERIA STRUCTURES LTD.
Corp. Office: A-25, MOHAN CO-OPEARTIVE
INDUSTRIES ESTATE, NEW DELHI- 110049
SH. SHYAM SUNDER,
DIRECTOR,
IMPERIA STRUCTURES LTD.
A-25, MOHAN CO-OPEARTIVE
INDUSTRIES ESTATE, NEW DELHI- 110049
(Through: Mr. Gagandeep Gupta, Advocate)
...Opposite parties
ALLOWED PAGE 1 OF 10
C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (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: Ms. S. M Hashmi, Counsel for the complainant.
Ms. Zoya Junaid, Counsel for the Opposite Parties.
PER: HON'BLE DR. 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) pass a direction thereby directing the opposite parties to return/repay amount of Rs.23,25,000/ alongwith interest @ 24% per annum w.e.f. May, 2012;
b) compensate the Complainant with Rs.10,00,000 for harassment and mental agony;
c) impose an exemplary cost on the Opposite Parties as this Hon'ble Forum may deem fit and proper;
d) accept the complaint of the complainant and award damages to the tune of Rs.5,00,000/-;
e) pass any other or further order(s), which this Hon'ble Forum may deem fit and proper, in the facts and circumstances of the present case, in the interest of justice.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked a flat bearing no. D-701, measuring 750 sq. ft. with the opposite party no. 1 in the project 'Imperia Residency' situated at Greater Noida, U.P. Thereafter, a Memorandum of Understanding (MOU) was executed between the parties on 02.11.2010. As per the MOU dated 02.11.2010, the Opposite Party no. 1 has to complete the project by June 2012. However, till date the construction of the said project has not been completed by the Opposite Party no. 1. Moreover, the opposite party assured the complainant a sum of Rs. 23,250/- (committed ALLOWED PAGE 2 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022 return) every calendar month w.e.f. November, 2010 till the date of occupation of the said flat. However, the opposite party no. 1 stopped making the payment towards committed return after April 2012. The opposite party no. 1 vide letter dated 10.05.2012 informed the complainant that the construction of the said project is complete and demanded a sum of Rs. 3,98,363/-. It is further mentioned in the said letter that the opposite party no. 1 will be paying the committed return for the period upto 30.06.2012. The complainant after receiving the said letter visited the site of the project and was shocked to see that the construction was incomplete.
The complainant over the time had paid a sum of Rs. 23,25,000/- to the Opposite Party no. 1 as and when demanded by it. The complainant also sent a legal notice dated 26.11.2012 to the Opposite Party no. 1 demanding monthly committed return with interest and possession of the said flat but was of no avail.
3. The Opposite Parties have 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 she invested the money to earn profit, which amounts to commercial purpose. He further submitted that this commission does not have the territorial jurisdiction to adjudicate this complaint as the property in question is situated at Greater Noida, U.P.
4. The counsel for the Opposite Party further contended that the jurisdiction of this commission is barred as there is an arbitration clause in the MOU dated 02.11.2010. Pressing the aforesaid ALLOWED PAGE 3 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022 objections, the counsel appearing on behalf of the Opposite Parties prayed that the complaint should be dismissed.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. 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 had booked a flat with the Opposite Party no. 1 is evident from the MOU dated 02.11.2010. Payment to the extent of Rs. 23,25,000/- by the complainant to the Opposite Parties no. 1 is also evident from the acknowledgment receipts issued by the opposite party no. 1.
WHETHER THE COMPLAINANT FALLS UNDER THE DEFINITION OF 'CONSUMER' AS PER THE CONSUMER PROTECTION ACT, 1986?
8. The Opposite Parties 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 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 ALLOWED PAGE 4 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022 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 ground to reject the present consumer ALLOWED PAGE 5 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022 complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
WHETHER THIS COMMISSION HAS THE TERRTITORIAL JURISDICTION TO ADJUDICATE THE PRESENT COMPLAINT?
12. The issue with respect to territorial jurisdiction in case of a consumer complaint has been dealt with by this commission in a series of judgments wherein it has been held that this Commission is empowered to entertain a consumer complaint against a person/company whose Registered Office is situated within the territory of NCT of Delhi. (Reference: CC-1375/2016 titled Mr. Raghavendra Rengaswamy vs. M/s ORS Infrastructure Pvt. Ltd decided on 25.03.2021, CC-621/2016 titled Abhaya Srivastava & Anr. vs. M/s Supertech Ltd. decided on 09.03.2021).
13. In the present case, the registered office of the Opposite Party no. 1 is at A-25, Mohan Co-Operative Industries Estate, New Delhi - 110049, which falls within the territory of Delhi, hence, this commission is not paralyzed from entertaining the present consumer complaint for want of territorial jurisdiction. WHETHER THE EXISTENCE OF ARBITRATION CLAUSE IN THE MEMORANDUM OF UNDERSTANDING BARS THE JURISDICTION OF THIS COMMISSION?
13. The next preliminary objection raised by the Opposite Party No. 1 is that since there exists an arbitration clause in the MOU dated 02.11.2010, the parties should be referred to arbitration and this commission is barred from exercising its jurisdiction. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), wherein the Apex court has held as under:-
ALLOWED PAGE 6 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022
"55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
14. The Hon'ble Apex Court has put to rest the controversy relating to the existence of arbitration clauses in the allotment letter/apartment buyer agreement etc. as is evident from the relevant paragraph of Emaar MGF Land Limited (supra). In the present case also, the complainant has opted for the special remedies provided under the Consumer protection Act, 1986 therefore, this commission can refuse to relegate the present case to the arbitration. Hence, this commission is authorised to adjudicate the case and the existence of an arbitration clause in the agreement does not affect the jurisdiction of this commission.
WHETHER THE OPPOSITE PARTY IS LIABLE FOR DEFICIENCY IN SERVICE?
14. Having discussed the preliminary objections raised on behalf of the Opposite Parties, the next issue which arises is whether the Opposite Party no. 1 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 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:
ALLOWED PAGE 7 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022
(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.
15. At this stage, we deem it appropriate to refer to the MOU dated 02.11.2010 entered into by both the contesting parties. It reflects that the Opposite Party no. 1 was bound to complete the construction of the said project by June, 2012. However, till date the construction of the said project has not been completed by the ALLOWED PAGE 8 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022 opposite party no. 1. It is further mentioned in the MOU dated 02.11.2010 that the opposite party no. 1 shall make payment of Rs. 23,250/- (committed return) every calendar month w.e.f. November 2010 till the date of occupation on which the complainant duly accepts. However, the opposite party no. 1 failed to make payment towards committed return after April 2012.
16. Relying on the above settled law, we hold that the Opposite Party no. 1 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 completing the construction of the said project and kept the hard-earned money of the complainant for about 10 years. Moreover, the Opposite Party failed to make the monthly payment towards committed return to the complainant after April, 2012 as provided in the MOU dated 02.11.2010.
17. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party no. 1 to refund the entire amount paid by the complainant i.e., Rs. 23,25,000/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from May, 2012 (as prayed by the complainant) till 03.01.2022 (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 02.03.2022;
C. Being guided by the principles as discussed above, in case the Opposite Party no. 1 fails to refund the amount as per the aforesaid clause (A) on or before 02.03.2022, the entire amount is to be refunded along with an ALLOWED PAGE 9 OF 10 C. NO. 70/2013 JUGNU DHILLON VS. IMPERIA STRUCTURES LTD & ANR. D.O.D. : 03.01.2022 interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite no. 1 Party till the actual realization of the amount.
18. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party no. 1 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/-.
19. The opposite party no. 1 is also directed not to deduct any TDS on the amount being paid/refunded.
20. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
21. 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.
22. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On: 03.01.2022 ALLOWED PAGE 10 OF 10