State Consumer Disputes Redressal Commission
Ankur Arora vs M/S Orris Infrastructure Pvt. Ltd. & ... on 19 December, 2022
C.C 1324/2016 D.O.D.: 19.12.2022
MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Admission: 17.11.2016
Date of hearing: 26.09.2022
Date of Decision: 19.12.2022
COMPLAINT CASE NO.- 1324/2016
IN THE MATTER OF
MR. ANKUR ARORA,
S/O MR. B.K. ARORA,
R/O A-238, FIRST FLOOR,
HARI NAGAR CLOCK TOWER,
NEW DELHI-110064.
(Through: Mr. Anupam Kumar Jha & Mr.
Dharmendra Kumar, Advocates)
...Complainant
VERSUS
1. M/S ORRIS INFRASTRUCTURE PVT. LTD.,
RZ- D- 5, MAHAVIR ENCLAVE,
NEW DELHI - 110045.
ALSO AT:
J-10/5, DLF PHASE-II,
M.G. ROAD, GURGOAN-122002,
HARYANA.
2. THE MANAGING DIRECTOR,
M/S ORRIS INFRASTRUCTURE PVT. LTD.,
RZ- D- 5, MAHAVIR ENCLAVE,
NEW DELHI - 110045.
ALSO AT:
J-10/5, DLF PHASE-II,
M.G. ROAD, GURGOAN-122002,
HARYANA.
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C.C 1324/2016 D.O.D.: 19.12.2022
MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
(Through: Mr. Bharat Bhushan, Advocates)
...Opposite Parties
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER(JUDICIAL)
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 Respondents / O.P.'s to pay/return the sum of Rs.26,79,200/- along with interest @ 24% per annum from the date of payment till its realization towards the refund of the amount paid by the complainant for the booked plot, b. Direct the Respondents to pay a sum of Rs. 10,00,000/- (Rupees Ten Lacs only) as compensation for harassment, mental pain and agony suffered by the complainant, c. Direct the respondents to pay a sum of Rs. 11,000/- towards the cost of legal notice and a sum of Rs. 55,000/- towards litigation charges to the complainant, d. Pass any such other order(s) as deemed fit and proper as per the facts and circumstances of the case in favour of the Complainant and against the respondents as the same is very necessary in the interest and furtherance of justice and equity.
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2. Brief facts necessary for the adjudication of the present complaint are that on 28.02.2013, the Complainant booked a plot in the project 'Curiocity' of the Opposite Party 1 situated at Yamuna Expressway, Gautambudh Nagar, Uttar Pradesh. Thereafter, the Opposite Party no.1 allotted plot bearing no. B-67 vide letter dated 09.04.2013 to the Complainant. The Complainant over the time has paid a sum of Rs. 26,79,200/- to the Opposite party no. 1 as and when demanded by it. The Opposite Party no. 1 assured the Complainant that the possession of the said flat will be handed over within a maximum period of 36 months plus 6 months of grace period. However, the Opposite Party no. 1 failed to handover the possession of the said flat till date. The complainant made several communications regarding handing over the possession of the said plot but no satisfactory response given by it. The Complainant also sent legal notice dated 01.08.2016 to the Opposite Parties seeking refund of the amount paid by him along with interest but was no avail.
3. The Opposite Party no. 1 has contested the present case and 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 consumer under the Consumer Protection Act, 1986 as he invested the money to earn profit, which amounts to commercial purpose. He further submitted that the complainant has no cause of action to file the present complaint.
4. The counsel for the Opposite Party no.1 that this commission does not have jurisdiction to adjudicate the matter as the property in question is situated at Gautam Budh Nagar, UP. He further submitted that the jurisdiction of this commission is barred as there is an arbitration agreement between the parties.
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5. He also submitted that the present complaint involves complicated question of facts and law which need to be proved by way of evidence and cross examination of the witness, the present complaint cannot be disposed of by way of summary proceeding. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party no. 1 prayed that the complaint be dismissed.
6. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party no. 1. Both the parties have duly filed their Evidence by way of Affidavit in order to prove their averments on record.
7. The Complainant has filed his written arguments, wherein, he relied upon following judgments:
A) Shalabh Nigam versus Orris Infrastructure pvt. ltd. & anr. B) Fortune Infrastructure & anr. Vs Trevore d'lima & ors. C) Pioneer land and infrastructure ltd. Vs Govindan Raghavan D) Kolkata west international city pvt. ltd. Vs devasis rudra
8. We have perused the material available on record and heard the counsel for the parties.
9. The fact that the Complainant had booked a plot with the Opposite Party no. 1 is evident from the Allotment letter dated 09.04.2013 (Annexed on the 17 page of the complaint). Payment to the extent of Rs.26,79,200/- by the Complainant for the said plot is admitted by the opposite party no.1 in the para 4 of the written statement.
10. The first question for adjudication is whether the complainants have any cause of action to approach this commission. 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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(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."
11. 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 plot has been delivered nor the amount has been refunded to the Complainant by the Opposite party no. 1. 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."
12. 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 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
is not delivered to the Complainant, he is within right to file the present complaint before this commission.
13. The second question for consideration is whether the complainant falls in the category of consumer under the consumer protection act 1986?
14. The Opposite Party no. 1 contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 1986 as he 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."
15. 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:
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"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."
16. 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.
17. In the present case, the Opposite Party no.1 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 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. 1 is answered in the negative.
18. The next question for consideration is whether this commission has the territorial 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-
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(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."
19. 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.
20. Having discussed the statutory position, the facts of the present case reflect the registered office of the Opposite Party no.1 is at RZ-D-5, MAHAVIR ENCLAVE, NEW DELHI - 110045. 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:
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"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."
21. Relying on the above settled law, we are of the view that this commission has the territorial jurisdiction to adjudicate the present complaint.
22. The next preliminary objection raised by the Opposite Party no.1 is that since there exists an arbitration agreement between the parties, 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:-
"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 ALLOWED PAGE 9 OF 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
23. 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 authorized to adjudicate the case and the existence of an arbitration agreement does not affect the jurisdiction of this commission.
24. The Opposite Party no.1 contended that the jurisdiction of this Commission would be barred in view of the fact that the present complaint is in fact a suit for recovery on which court fees is payable and would lie in a Civil Court. Moreover, the complicated question of facts and law which have been raised in the present complaint can only be decided before the Civil Court.
25. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are affected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
1. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2) (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 ALLOWED PAGE 10 OF 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
2. Returning to the facts of the present complaint, it is clear that the Complainant avail the services of the Opposite Party no.1 for a consideration. However, the Opposite Party no.1 failed to complete the said project, aggrieved by which, the Complainant has sought the refund of the amount paid by him. Hence, the Complainant is entitled to file the present complaint before this commission since the Complainant is aggrieved by the deficient services of the Opposite Party no.1 i.e., the failure of the Opposite Party no.1 to handover the possession of the said shop within reasonable time and it is only due to this reason, that the refund of the amount paid is sought from the Opposite Party no.1, which this Commission is authorised to adjudicate.
3. Our view is further fortified by the dicta of Hon'ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that when a person applies for the allotment of a building or site or for a shop constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers.
4. Moreover, nothing cogent has been brought on record by the Opposite Party no.1 which would reflect that there are such ALLOWED PAGE 11 OF 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties. Consequently, we are of the view that the present complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the Opposite Party no.1.
5. The main question for consideration before us is whether the Opposite Party no. 1 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 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 ALLOWED PAGE 12 OF 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
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.
26. Returning to the facts of the present case, it is noted that though the Complainant submitted that the Opposite Party no.1 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.1 had to handover the possession of the said flat to the Complainant.
27. 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 ALLOWED PAGE 13 OF 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
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."
28. 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.1 failed to handover the possession of the plot in question even after the passing of more than eight years from the date of booking. Therefore, the deficiency on the part of Opposite Party no.1 stands proved.
29. 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. 26,79,200/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party no.1 till 19.12.2022 (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 no.1 pays the entire amount on or before 19.02.2023;
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 19.02.2023, the entire amount is to be refunded along with an interest @ ALLOWED PAGE 14 OF 15 C.C 1324/2016 D.O.D.: 19.12.2022 MR. ANKUR ARORA VS. M/S ORRIS INFRASTRUCTURE PVT. LTD. & ANR.
9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party no.1 till the actual realization of the amount.
30. 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. 2,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 1,00,000/-.
31. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
32. 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.
33. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On: 19.12.2022 ALLOWED PAGE 15 OF 15