State Consumer Disputes Redressal Commission
Sushma Dhawan vs M/S Taneja Devlopers & Infrastructure ... on 23 September, 2022
C.C 1562/2016 D.O.D.: 23.09.2022
MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 21.12.2016
Date of hearing: 21.07.2022
Date of Decision: 23.09.2022
COMPLAINT CASE NO.- 1562/2016
IN THE MATTER OF
MRS. SUSHMA DHAWAN
W/O MR. RAMESH DHAWAN,
R/O HOUSE NO. WZ-2150,
RANI BAGH, SHAKUR BASTI,
DELHI-110034.
(Through: Mr. Ankit Karla, Advocate)
...Complainant
VERSUS
1. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD.
9, KASTURBA GANDHI MARG,
NEW DELHI-110001.
THROUGH ITS CEO/MANAGING DIRECTOR.
2. M/S TDI INFRASTRUCTURE LTD.
(FORMELY: INTIME PROMTERS PVT. LTD.)
REGD. OFF.: 9, KASTURBA GANDHI MARG,
NEW DELHI-110001.
THROUGH ITS CEO/MANAGING DIRECTOR.
ALSO AT:
COLLECTION CENTRE: G-7, GROUND FLOOR,
CONNAUGHT CIRCUS, NEW DELHI-110001.
(Through: Ms. Kanika Agnihotri & Mr. Vaibhav Agnihotri,
Advocates)
...Opposite Parties
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C.C 1562/2016 D.O.D.: 23.09.2022
MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, (JUDICIAL MEMBER)
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 Parties and has prayed the following reliefs:
a. Direct the Opposite Party to take the balance amount of Rs. 5,03,023/- and handover the physical vacant possession of the flat bearing No. S1-1303 situated at 13th floor of Kingsbury Flats, "TDI City" Kundli Sonepat, Haryana without any further delay; Or in alternative Direct the Opposite Party to handover any other similarly situated flat in the same complex i.e. Kingsbury Flats or at any other flats constructed at "TDI City" Kundli Sonepat Haryana at the same rates as booked by the Complainant and of similar size; b. Direct the Opposite party to pay the interest @ 24% per annum on the whole amount paid by the Complainant to the Opposite Parties towards the cost of flat till the day and date of handing over the physical vacant possession of flat;
c. Direct the Opposite Party to pay a sum of Rs. 5,00,000/- (Rupees five Lakh Only) towards compensation/damages;
d. Direct the Opposite Parties to pay a sum of Rs. 1,00,000/-(Rupees One Lakh Only) towards Litigation Charges.
e. Direct the Opposite Party to pay the cost of present complaint;
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MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
f. 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.
2. Brief facts necessary for the adjudication of the present complaint are that on 31.08.2005, the Complainant booked a residential flat in the project 'Kingsbury' of the Opposite Party no. 2 situated at TDI City, Kundli, Sonipat, Haryana. Thereafter, the Opposite Party no.2 allotted flat no. S1-1303 vide letter dated 20.02.2007 to the Complainant. The Complainant over the time has paid a sum of Rs. 15,59,550/- to the Opposite party no. 2 as and when demanded by it. The Opposite Party no. 2 assured the Complainant that the possession of the said flat will be handed over within a maximum period of 36 months. However, the Opposite Party no. 2 failed to handover the possession of the said flat till date. The Complainant sent legal notice dated 19.09.2015 to the Opposite Parties seeking refund of the amount paid by him along with interest @ 24% per annum but was no avail.
3. The Opposite Party no. 2 has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party no.2 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. The counsel for the Opposite Party no. 2 also contended that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986 and there is no cause of action in favour of the complainant to file the present complaint.
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MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
4. The counsel of the Opposite Party no. 2 further submitted that this commission does not have the territorial jurisdiction to try and entertain the present complaint as the subject property in question is situated at Haryana and therefore, only courts at Haryana will have the jurisdiction to adjudicate the present complaint. He further submitted that the complainant defaulted in making timely payments as per the payment schedule. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party no. 2 prayed that the complaint be dismissed.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party no. 2. Both the parties have duly 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. 2 is evident from the allotment letter dated 20.02.2007 (Annexed-C3). Payment to the extent of Rs.14,01,050/- by the Complainant for the said flat is evident from the receipts issued by the Opposite Party no. 2. (Annexure-C1,2,5,6,7,12) WHETHER THE PRESENT COMPLAINT IS BARRED BY LIMITATION AS PER THE CONSUMER PROTECTION ACT, 1986?
8. The Opposite Party no. 2 has contended that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986, which provides as under:
24A. Limitation period.--
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MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2)Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the Complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
9. A perusal of the above statutory provision of law reflects that the complaint shall be filed before the State Commission within two years from the date on which the cause of action has arisen. It is clear from the record that till date neither possession of the said flat has been delivered nor the amount has been refunded to the Complainant by the Opposite party no. 2. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon'ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
10. Relying on the above settled law, it is clear that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action in favour of the buyer and therefore, till the time possession ALLOWED PAGE 5 OF 13 C.C 1562/2016 D.O.D.: 23.09.2022 MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
is not delivered to the Complainant, she is within right to file the present complaint before this commission. Consequently, the present complaint is not barred by limitation as per Section 24A of the Act.
WHETHER COMPLAINANT FALLS IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
11. The Opposite Party no. 2 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 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."
12. 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.
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MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
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."
13. 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.
14. In the present case, the Opposite Party no.2 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 flat. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party no. 2 is answered in the negative. WHETHER THIS COMMISSION HAS THE TERRITORIAL JURISDICTION TO ADJUDICATE THIS COMPLAINT?
15. The next question for consideration is whether this commission has the jurisdiction to adjudicate the present complaint. We deem it ALLOWED PAGE 7 OF 13 C.C 1562/2016 D.O.D.: 23.09.2022 MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
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."
16. 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.
17. Having discussed the statutory position, the facts of the present case reflect the registered office of the Opposite Party no.2 is at 9, Kasturba Gandhi Marg, New Delhi - 110001. Since the registered office falls within the territory of Delhi, this commission has the ALLOWED PAGE 8 OF 13 C.C 1562/2016 D.O.D.: 23.09.2022 MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
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."
18. 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 OPPOSITE PARTY NO.2 IS DEFICIENT IN PROVIDING ITS SERVICES TO THE COMPLAINANT?
19. The main question for consideration before us is whether the Opposite Party no. 2 is deficient in providing its services to the Complainant. 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 ALLOWED PAGE 9 OF 13 C.C 1562/2016 D.O.D.: 23.09.2022 MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
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.
20. Returning to the facts of the present case, it is noted that though the Complainant submitted that the Opposite Party no.2 assured her to hand over the possession of the said flat within a maximum period of 36 months, however, we failed to find any document/provision which shows us the time period within which Opposite Party no.2 had to handover the possession of the said flat to the Complainant.
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MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
21. To resolve the aforesaid issue, it is appropriate to refer to the First Appeal no. 348/2016 tiled as "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." decided on 10.05.2019, wherein the Hon'ble NCDRC has held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:
46.Time for performance of promise, where no application is to be made and no time is specified -
Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation - The question "what is a reasonable time"
is, in each particular case, a question of fact".
19. from the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of construction and delivery of possession. If the possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved."
22. Relying on the above settled law, if the possession is delivered beyond the 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved. It is clear that the Opposite Party no.2 failed to handover the possession of the flat in question even after the passing of more than fifteen years from the date of booking. Therefore, the deficiency on the part of Opposite Party no.2 stands proved.
23. The Opposite Party no.2 further submitted that the there was default in making payments by the Complainant as per opted payment plan.
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MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
However, perusal of record shows that the complainant paid a huge amount of Rs. 14,01,050/- towards the total basic price of the flat. More so, it is accepted by the opposite party no.2 in Para 6 of the written statement that the construction of the said property is progressing at a slow pace due to reasons beyond its control. Hence the complainant cannot wait for infinite time for the possession of the said flat. Consequently, the contention raised by the Opposite Party no.2 is devoid of any merits and is dismissed.
24. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite party no.2 to deliver the physical possession of said flat in the name of the Complainant within two months after receiving the outstanding amount of total sale consideration from the Complainant as per the payment plan opted by the complainant, OR, IN ALTERNATIVE Handover any other similarly situated flat in the same complex i.e., Kingsbury Flats or at any other flats constructed at "TDI City" Kundli, Sonepat Haryana at the same rates as booked by the Complainant and of similar size.
25. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party no.2 is directed to pay:
A. Rs. 3,00,000/- as cost for mental agony and harassment to the complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
26. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
27. 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 ALLOWED PAGE 12 OF 13 C.C 1562/2016 D.O.D.: 23.09.2022 MRS. SUSHMA DHAWAN VS. M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD & ANOTHER.
uploaded forthwith on the website of the commission for the perusal of the parties.
28. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) JUDICIAL MEMBER Pronounced On:
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