State Consumer Disputes Redressal Commission
Avnish Malhotra vs Selene Construction Ltd. on 16 January, 2026
CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 22.03.2017
Date of reserving the order: 15.01.2026
Date of Decision: 16.01.2026
COMPLAINT CASE NO.-549/2017
IN THE MATTER OF
MR. AVNISH MALHOTRA
S/O MR. KASHMIRI LAL MALHOTRA
R/O MALHOTRA COTTAGE,
DHINGU MANDIR ROAD,
SHANJULI, SHIMLA, HP - 171006
(Through: Mr. S.C. Duggal &
Ms. Koplin K Kandhari, Advocates)
...Complainant
VERSUS
SELENE CONSTRUCTIONS LTD.
AT: F-60, MALHOTRA BUILDING,
2ND FLOOR, CONNAUGHT PLACE,
NEW DELHI 110001
ALSO AT: 448-451, INDIABULLS HOUSE,
UDYOG VIHAR PHASE-V,
GURGAON, HARYANA-122001
(Through: Mr. Vikrant Pachnanda, Advocate)
...Opposite Party
CORAM:
HON‟BLE JUSTICE SANGITA DHINGRA SHEGAL, PRESIDENT
HON‟BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: None for the Complainant
None for the OP.
ALLOWED PAGE 1 OF 15
CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026
PER: HON‟BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
JUDGMENT
1. Brief facts of the case are that the Complainant came to know through property dealers that the Opposite Party was going to construct ultra-modern flats under its project, namely, „Centrum Park‟ at Sector 103, Gurgaon, Haryana. The Complainant was told that the project was under progress and the flats would be ready for occupation within 30 months plus six months grace period. Thus, the Complainant had booked the flat bearing no. 092, 9th Floor, Block-K1 in the aforesaid project of the Opposite Party and paid a sum of Rs.17,42,000 to the Opposite Party (Rs.1,00,000 through RTGS on 25.09.2012, Rs.5,00,000 through RTGS on 17.11.2012, Rs. 5,00,000 through cheque no. 310553 dated 20.11.2012 and Rs.6,42,000 through cheque no. 310555 dated 7.12.2012. Thereafter, the 'Flat Buyers Agreement' dated 13.12.2012 was executed between the parties for the flat bearing no. 092, 9th Floor, Block-K1 admeasuring 2000 sq. ft. super area in the aforesaid project of the Opposite Party. The total sale price of the flat was Rs.1,06,50,000/- plus all mandatory charges mentioned in the clause 6 of Agreement. As per clause 21 of Agreement, the construction was to be completed by the Opposite Party within a period of three years plus six months grace period from the date of execution of Flat Buyers Agreement and subject to timely payment by the buyers. The Complainant opted for 'Subvention Scheme' according to which the 80% cost of the flat was paid by loan amount from India Bulls Housing Finance. Accordingly, the Tripartite Agreement dated 24.12.2012 was executed between Complainant, Opposite Party and India Bulls ALLOWED PAGE 2 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 Housing Finance (IBHF). The loan amount was to be repaid by the Complainant in 30 monthly installments.
2. It is the case of Complainant that after detailed discussion with the Opposite Party and expiry of loan repayment period, he paid first EMI of Rs.1,00,944/- to the IBHF vide cheque no. 623203 dated 21.08.2015 drawn on Canara Bank. Thereafter, in August 2015, he visited the project site, and was shocked to see that the construction work was just started and it would take further two- three years for completion. Thereafter, he made request to the concerned officials of the Opposite Party to increase the period of the Subvention Plan till the building was ready for possession as there was inordinate delay on the part of Opposite Party. On several occasions, he also requested the Opposite Party via phone, SMS and email etc. for amicable settlement on the issue of inordinate delay in construction. The Complainant sent the e- mails dated 31.08.2015, 03.09.2015, 11.09.2015, 17.09.2015 & 23.09.2015, respectively to the Opposite Party. But, there was no response from the side of Opposite Party. Thus, he sent the letter dated 23.09.2015 to the Opposite Party through registered post. But, the Opposite Party did not reply to the same.
3. It is the further case of Complainant that when he did not receive any communication from the Opposite Party, he was constrained to make a personal visit to the office of Opposite Party at Gurgaon on 03.12.2015 all the way from Mohali, and made several requests to meet some senior officers or COO to sort out the matter regarding the delay and settlement of his case either by refunding the amount paid with interest or to increase the period of the Subvention Scheme. But, he was bluntly told by the customer care executive that he had to bear the delay and also ALLOWED PAGE 3 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 will have to pay the EMIs as per the agreement. Thus, the Complainant had no option but to stop the payment of EMIs till the issue was resolved.
4. It is further the case of Complainant that on 24.10.2016, he saw a big front page advertisement in various leading newspapers, wherein the Opposite Party had offered a fresh beginning with Subvention Scheme till handing over of possession, which clearly showed that the Opposite Party had intention to cheat him from the beginning. Thus, the Complainant was left with no other option but to send a legal notice dated 23.12.2016 upon the Opposite Party seeking for cancellation of booking and refund of his entire money along with interest and damages for mental torture. But, the Opposite Party deliberately and intentionally did not receive the notice sent at its Delhi address, which was received undelivered with the remarks 'no such addressee available at the said address.' But the notice was duly served upon the Opposite Party at its Gurgaon address. The non- completion of construction of the flat and delivery thereof within the prescribed period and non-refund of the amount paid by the Complainant on cancellation of flat amounts to gross deficiency in service on the part of Opposite Party.
5. Thus, the Complainant was left with no other option but to file the present complaint alleging deficiency of service and unfair trade practice on the part of the Opposite Party.
6. After filing of the complaint by the Complainant, the notice of the complaint was issued to the Opposite Party on 24.04.2017.
7. Upon service, the Opposite Party filed the written statement, wherein it was submitted that as per clause 10 of Flat Buyers Agreement, the timely payment of installments was the essence of ALLOWED PAGE 4 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 agreement and if the payment was not made within stipulated time or the Complainant committed breach of terms and conditions of agreement, the Opposite Party was entitled to cancel the allotment and forfeit the 15% amount of basic sale price. The Complainant approached the financer India Bulls Housing Finance and obtained the loan of Rs.93,18,131/- to purchase the property in question. The Complainant has satisfied himself with regard to the integrity, capability and quality construction of the Opposite Party. The Tripartite Agreement dated 24.12.2012 was executed between Complainant, Opposite Party and India Bulls Housing Finance (IBHF) and a sum of Rs.93,18,131/- was granted by the financer and the remaining amount of Rs.17,42,000/- was paid by Complainant to Opposite Party. As per terms of Tripartite Agreement, the financer would fund 80% of sale consideration and Complainant would pay 15% of the basic sale price of the unit before the disbursement of loan facility, while balance 5% would be paid by Complainant upon offer of possession by Opposite Party to Complainant. Further, as per Tripartite Agreement, the Complainant gave an irrevocable undertaking that subsequent to disbursement, there would be no repayment default for any reason, whatsoever, including but not limited to any concern/issue between the Complainant and the Opposite Party. As per clause 5 of Tripartite Agreement, the Complainant undertook to pay the 30 monthly installment and interest prior to monthly installment from the date of first disbursement without any objection and such payment was irrespective to the stages of construction of project. Further, any delay in the project or dispute between the Complainant and the Opposite Party would not release, relinquish or reduce the liability ALLOWED PAGE 5 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 of Complainant to pay the EMIs on time. Further, as per clause 11 of Tripartite Agreement, if the Complainant failed to pay the balance amount representing the difference between the loan sanctioned by the IBHF and the actual price of the flat, the entire amount advanced by the IBHF would be refunded by the Opposite Party to IBHF. Further, as per clause 13 of Tripartite Agreement, in the event of occurrence of default under loan agreement would result in cancellation of allotment and in that event the amount payable to the Complainant would be paid directly to the financer. As per clause 14 of Tripartite Agreement, the Complainant subrogated his right in favour of financer to receive any amount payable by the Opposite Party to the Complainant in the event of cancellation of unit.
8. It is the further case of Opposite Party that on 21.09.2015, IBHF sent loan recall notice to Complainant and the Opposite Party towards outstanding amount of Rs.9,26,119.59 including principal, interest and late charges. Thereafter, the Opposite Party sent reminder dated 05.10.2015 to the Complainant to make payment to financer otherwise the booking of unit would be cancelled in terms of clause 13 of Tripartite Agreement. The Opposite Party vide letter dated 19.11.2015 informed the Complainant that the allotment of unit was cancelled as per the information received from IBHF vide letter dated 21.10.2015 of non-payment of due amount by the Complainant. Further, the Opposite Party informed the Complainant that in compliance of Tripartite Agreement, the Opposite Party remitted the sum of Rs.93,18,131/- to the IBHF vide cheque bearing no. 004162 dated 31.10.2015 drawn on HDFC Bank. The remaining amount of Rs.17,42,000/- paid by the Complainant was deducted as ALLOWED PAGE 6 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 cancellation charges in terms of clause 10 of Flat Buyers Agreement. The Complainant is still liable to pay a sum of Rs.4,76,187/- to the Opposite Party. There is no question of deficiency in service on the part of Opposite Party. Moreover, the Complainant is not a 'Consumer within the ambit of Consumer Protection Act. In view of judgment of Hon'ble National Commission in Amrish Kumar Shukla V. Ferrous Infrastructure (2016 SCC Online NCDRC 1117) decided on 07.10.2016, this Commission does not have pecuniary jurisdiction to entertain the present complaint as the basic sale price of the unit in question was Rs.1,06,50,000/-. The Opposite Party has prayed for dismissal of the complaint with exemplary costs.
9. The Complainant has filed rejoinder to the written statement of Opposite Party, wherein he denied all the allegations leveled by the Opposite Party and reiterated the facts narrated by him in his complaint.
10. The Complainant has filed evidence by way of his affidavit.
11. The Opposite Party has filed evidence by way of affidavit of Mr. Sushil Singh, Authorized Signatory of the Opposite Party.
12. The Complainant and Opposite Party have filed their respective written arguments.
13. We have gone through the material available on record.
14. First, of all, we would like to deal with the preliminary objection taken by the Opposite Party.
"Whether the Complainant is Consumer or not."
15. It is the case of Opposite Party that the Complainant is not a 'Consumer and does not come within the ambit of Consumer Protection Act.
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16. To resolve this issue, we deem it appropriate to refer to Section 2 (1)(d) of Consumer Protection Act, 1986:
"Section 2(1)(d) Consumer" means any person who- i. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or ii. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]"
17. In the present case, the Complainant entered into 'Flat Buyers Agreement' dated 13.12.2012 (Page 10 to 31 of complaint) with the Opposite Party, according to which the Complainant hired/availed the services of the Opposite Party for consideration. However, the Complainant was aggrieved by the deficient services of the Opposite Party as Opposite Party failed to complete the construction within time and opted to approach this Commission for redressal of his grievances. Further, the Opposite Party has not placed on record any material to show that the Complainant is not a 'Consumer' and has merely made a bald statement that the Complainant is not a 'Consumer.' Hence, we are of the considered view that the Complainant is 'Consumer' as defined in ALLOWED PAGE 8 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 the Section 2(1)(d) of the Consumer Protection Act, 1986. Consequently, the objection raised on behalf of the Opposite Party is answered in negative.
"Whether this Commission has no pecuniary jurisdiction."
18. It is the case of Opposite Party that this Commission does not have pecuniary jurisdiction to entertain the present complaint as the basic sale price of the unit in question was Rs.1,06,50,000/-.
19. To deal with this contention, I would like to refer Section 17 of the Consumer Protection Act, 1986 which reads as under:
"(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction-
(a) to entertain-
(i) Complaints where the value of the goods or services and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore]."
20. Perusal of Section 17 of Consumer Protection Act, 1986 makes it clear that State Commission shall have jurisdiction to entertain a complaint where the value of goods or services and compensation claimed exceeds Rs. 20 lakhs but does not exceeds Rs. 1 crore.
21. In the present case, it is worth noting that as per prayer clause, the Complainant has prayed for directions to the Opposite Party to pay a sum of Rs.18,42,944/- along with interest @ 12% p.a. and as sum of Rs.5,00,000/- towards compensation, which is more than Rs.20 lakhs but does not exceeds Rs.1 crore. Thus, we are of the considered view that this Commission has pecuniary jurisdiction to entertain the present complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in negative.
22. The last question for consideration is whether there is deficiency in service on the part of Opposite Party.
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23. To deal with this issue, we would like to refer Section 2 (1) (g) of Consumer Protection Act, 1986, which is reproduced herein for ready reference:-
"(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. Further, we would also like to refer the judgment in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors.2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"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) (0) 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 ALLOWED PAGE 10 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 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 fulfillment of a contractual obligation."
25. In the present case, the 'Flat Buyers Agreement' dated 13.12.2012 (Page 10 to 30 of complaint) was executed between the parties for the flat bearing no. 092, 9th Floor, Block-K1 admeasuring 2000 sq. ft. super area in the project of the Opposite Party, namely, „Centrum Park‟ Gurgaon, Haryana. As per Buyers Agreement, the total sale price of the flat was Rs.1,06,50,000/-. The Complainant had paid a sum of Rs.17,42,000/- to the Opposite Party is evident from the receipts (Page 35, 41, 42 & 43 of complaint) issued by the Opposite Party. As per clause 21 of Buyers Agreement, the construction was to be completed by the Opposite Party within a period of three years plus six months grace period from the date of execution of Flat Buyers Agreement i.e. by June 2016. Further, as per Payment Schedule (Page 31 of complaint), the Complainant opted for 'Subvention Scheme' according to which the 80% cost of the flat was to be paid by India Bulls Housing Finance. Accordingly, the Tripartite Agreement dated 24.12.2012 (Page 37 to 40 of complaint) was executed between Complainant, Opposite Party and India Bulls Housing Finance (IBHF) and the loan amount was to be paid in 30 monthly installments. Further, as per clause 4 of Tripartite Agreement, the Opposite Party was to pay Pre-EMI till 26.04.2015. But, at that time the construction of the unit in question was not completed and the Complainant was constrained to pay the first EMI of Rs.1,00,944/- to the IBHF vide cheque no. 623203 dated 21.08.2015 drawn on Canara Bank.
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26. It is worth noting that in August 2015, the Complainant visited the project site, wherein he was shocked to see that the construction work was just started and it would take further two-three years for completion. The Complainant also sent various e-mails (Page 49 to 52 of complaint) to the concerned officials of the Opposite Party requesting to increase the period of the Subvention Plan till the building was ready for possession as there was inordinate delay on the part of Opposite Party. However, there was no response from the Opposite Party. The Complainant also sent letter dated 23.09.2015 to the Opposite Party, but the Opposite Party did not reply to that letter. Further, when no communication was received from the Opposite Party, the Complainant personally visited the office on 03.12.2015 at Gurgaon and requested the officials to settle the dispute either by refunding his amount or to increase the period of Subvention Scheme, but of no avail.
27. It is significant to note that on 24.10.2016, the Complainant saw the big front page advertisement of the project of Opposite Party in various leading newspapers offering a fresh beginning with Subvention Scheme till handing over of possession, which clearly showed that the Opposite Party had intention to cheat him from the beginning. Thus, the Complainant was left with no other option but to send a legal notice dated 23.12.2016 upon the Opposite Party seeking for cancellation of booking and refund of his entire money along with interest and damages for mental torture. However, the Opposite Party without completing the project in time put an illegal demand of the remaining payment and refused to pay the Pre-EMI, due to which, he had to face the harassment and mental agony. Even, ALLOWED PAGE 12 OF 15 CC/549/2017 AVNISH MALHOTRA VS. SELENE CONSTRUCTIONS LTD. DOD: 16.01.2026 the Opposite Party cancelled his allotment and forfeited the entire amount paid by him.
28. At this juncture, we find it relevant to refer to the judgment in Lucknow Development Authority Vs. M.K. Gupta (1994) 1 SCC 243, wherein it was held as under:
"when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a "service" as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over the possession of the flat clearly amounts to deficiency of service."
29. Further, in Fortune Infrastructure & Anr. Vs. Trevor D. Lima & Ors. 3 (2018) 5 SCC 442, wherein it was held as under:
"A person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him, along with compensation."
30. It is worth noting that the Opposite Party has not placed any documentary proof on record regarding the completion of the construction of the unit in question. Further, the Opposite Party has also not placed on record any Occupancy/Completion Certificate in respect of the project in question.
30. Relying on the above settled law, we are of the considered view 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/handing over possession of the flat in question. Further, we are of the considered view that the Opposite Party did not have any right to forfeit the hard-earned money paid by the Complainant.
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31. Accordingly, the complaint filed by the Complainant is hereby allowed.
32. Consequently, we direct the Opposite Party to refund the amount of Rs.18,42,944/- (Rs.17,42,000/- paid to Opposite Party + Rs.1,00,944/- paid towards first EMI) to the Complainant with 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 16.01.2026 (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 16.03.2026.
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 16.03.2026, 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.
33. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to further pay a sum of:
A. Rs.2,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs.50,000/-.
34. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
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35. A copy of this judgment be provided to all the Party 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 Party.
36. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) (PRESIDENT) (BIMLA KUMARI) MEMBER (FEMALE) Pronounced on: 16.01.2026 ALLOWED PAGE 15 OF 15