State Consumer Disputes Redressal Commission
Sanjeev Goel vs Tdi Infrastructure Ltd. on 8 February, 2023
C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 30.03.2017
Date of hearing: 05.09.2022
Date of Decision: 08.02.2023
COMPLAINT CASE NO.- 628/2017
IN THE MATTER OF
MR. SANJEEV GOEL,
S/O MR. ATMA RAM GOEL,
R/O B-3/297, PASCHIM VIHAR,
NEW DELHI.
(Through: Mr. Ajay Bansal, Advocate)
...Complainant
VERSUS
TDI INFRATECH LTD.,
CORPORATE OFFICE:
10, SHAHEED BHAGAT SINGH MARG,
GOLE MARKET, NEW DELHI-110001.
(Through: Mr. Vaibhav Agnihotri, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 10
C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Ajay Bansal, counsel for the Complainant.
Ms. Sneha Kaila, proxy counsel for Mr. Vaibhav Agnihotri,
counsel for the Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed under Section 17 of Consumer Protection Act, 1986 by the Complainant before this Commission alleging deficiency of service and unfair trade practice by the Opposite Parties and has prayed the following reliefs:-
a) "order the opposite party to reimburse the claim amount of Rs 74,48,409.00/- (Rupees Seventy Four Lacs Fourty Eight Thousand Four Hundred and nine Only) and pay the following claim along with interest @ 24% till the date of payment to the complainant.
b) order to pay the following claims:-
i. Compensation for deficiency in service, Mental agony and pain Rs 10,00,000/-
ii. Advocate‟s Fees and costs Rs 75,000/-
Total Amount in Rupees Rs 10,75,000/-
c) Any other and further relief as this Hon‟ble Forum deems fit and proper in facts and circumstances of the case may be also granted to the complainant."
2. Brief facts for the adjudication of the present complaint are that the Complainant was allotted a plot vide Plot ID-L-75 and Customer ID KR2-1353, in the Project of the Opposite Party namely „TDI City‟ situated at Kundli, Sonipat on 14.09.2005.
ALLOWED PAGE 2 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023
3. The Complainant had paid a total sum of Rs. 21,59,601/- as demanded by the Opposite Party till date. Thereafter, the Complainant requested the Opposite Party to give the date of delivery of the said Plot but was of no avail. On visiting the site by the Complainant, they found that Opposite Party did not start the construction work in the said project till 2016.
4. Aggrieved by the aforesaid, Complainant served legal notice dated 25.10.2016 and requested Opposite Party to refund the amount of Rs.21,59,601/- paid by the Complainant towards the purchase of the said Plot along with interest but of no avail.
5. The Opposite Party has contested the present case and 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 they invested the money to earn profit, which amounts to commercial purpose. He submitted that Complainant failed to make timely payments of the demands raised by the Opposite Party. Lastly, he contended that the delay in completion of project was due to unavoidable circumstances. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.
6. The Complainant has filed their Rejoinder rebutting the written statement filed by the Opposite Party. The Evidence by way of Affidavit of both the parties is on record.
7. We have perused the material available on record and heard the counsel for the parties.
8. Before delving into the merits of the present case, we found that initially the aforesaid Plot was allotted to Mrs. Renu Chawla vide Allotment No. R2-1353 dated 14.09.2005 thereafter; the same was ALLOWED PAGE 3 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023 transferred by her in favour of the Complainant (Annexure R-IV with the written statement). Moreover, payment to the extent of Rs.21,59,601/- has been paid by the Complainant till date to the Opposite Party .
9. The first question for adjudication before us is whether Complainant falls in the category of „consumer‟ under the consumer protection act, 1986. The Opposite Party contended that the Complainant is not a "Consumer" as defined under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. 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] ALLOWED PAGE 4 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023 Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;
10. 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 follows:
"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."
11. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the Plot 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.
12. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the Plot for commercial purpose and on perusal of the record before us; we fail to find any material which shows that the Complainant has booked the said Plot for commercial purpose and for gaining profit. Mere allegation, that the purchase of the Plot is for commercial purpose, cannot be the ground to reject the ALLOWED PAGE 5 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023 present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in negative.
13. Having discussed the preliminary objections raised on behalf of the Opposite Party, the last issue which arises is whether the Opposite Party was actually deficient in providing its services to the Complainant. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in the case of 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 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 ALLOWED PAGE 6 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023 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.
14. On perusal of record, we do not find any document/evidence which shows us the stipulated time within which the possession of the said plot was to be handed over to the Complainant by the Opposite Party. On this issue, we deem it appropriate to refer to the dicta of Hon‟ble National Commission in case titled as "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." in First Appeal No. 348 of 2016 decided on 10.05.2019, wherein it has been 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 ALLOWED PAGE 7 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023 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."
15. The aforesaid dicta make it clear that if the possession is delivered beyond 42 or 48 months by the builder, then the deficiency on the part of the builder stand proved. In the present case, the Opposite Party failed to handed over the possession of the said plot till date. Therefore, the deficiency on the part of the Opposite Party stands proved.
16. The Opposite Party further submitted that the delay in the completion of the project was due to unavoidable circumstances however; on perusal of record we do not find any evidence which shows us that any force majeure condition caused delay in the said project. We are of the considered view that neither any new legislation was enacted nor any existing rule, regulation or order was amended stopping, suspending or delaying the construction of the said project. It is the sole responsibility ALLOWED PAGE 8 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023 of the Opposite Party to complete the construction of the said project within time. The Complainant cannot be tormented due to the faults of the Opposite Party. Therefore, this contention of the Opposite Party is devoid of any merit and is dismissed.
17. In these circumstances, we hold 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 as well as giving the possession of the said Plot and kept the hard-earned money of the Complainant even after passing of 15 years.
18. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund an amount of Rs. 21,59,601/- (Entire amount paid by the Complainant till date) along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till 08.02.2023 (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 08.04.2023;
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 08.04.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till the actual realization of the amount.
ALLOWED PAGE 9 OF 10 C.No. 628/2017 MR. SANJEEV GOEL Vs. TDI INFRATECH LTD. D.O.D.: 08.02.2023
19. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of:
A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainant;
B. Rs. 50,000/- as litigation cost to the Complainant;
20. Applications pending, if any, stand 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 Regulations, 2005. 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.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On: 08.02.2023 ALLOWED PAGE 10 OF 10