State Consumer Disputes Redressal Commission
Naresh Chawla vs Jbb Everst Buildtech Pvt. Ltd. on 19 December, 2022
C.No. 1290/2016 D.O.D.: 19.12.2022
MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of institution: 21.10.2016
Date of hearing: 12.09.2022
Date of Decision: 19.12.2022
COMPLAINT CASE NO.- 1290/2016
IN THE MATTER OF
MR. NARESH CHAWLA,
R/O B-10, MOHAN GARDEN,
UTTAM NAGAR, DELHI
(Through: Mr. Sushil Kumar, Advocate)
...Complainant
VERSUS
JBB EVEREST BUILDTECH PVT. LTD.,
HAVING ITS OFFICE AT:
SH3, 2ND FLOOR,
VARDHMAN GRAND PLAZA,
MANGLAM PLACE, SECTOR-3,
ROHINI, NEW DELHI-110085.
ALSO AT:
509, ANSAL BHAWAN,
16 K.G. MARG, CONNAUGHT PLACE,
NEW DELHI.
(Through: Mr. Indresh Kumar, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 9
C.No. 1290/2016 D.O.D.: 19.12.2022
MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Surinder Singh and Mr. Rakesh Sharma for
Complainant.
None for Opposite Party.
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 Party and has prayed the following reliefs:
a) "Pass an order directing the O.P. to refund Rs.22,00,000/-
deposited by the complainant along with interest @21% from the date of deposit of each amount/instalment till realization.
b) Pass an order directing the O.P for compensation amounting to Rs.10,00,000/- for loss of opportunity in finding similar property now at high price due to rise in value of land and cost of construction, for deficiency in service, unfair trade practice, mental agony and harassment faced by the complainant.
c) Direct the opposite party to bear the litigation cost.
d) Direct the opposite party to pay Rs 5,00,000/- to the complainant for the mental harassment and mental agony.
e) Such any other/further relief which this Hon'ble Court may deem fit and proper be passed in favour of the Complainant."
ALLOWED PAGE 2 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022
MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
2. Brief facts for the adjudication of the present complaint are that the Complainant booked a Unit T-1A/1002, in Project of Opposite Party namely "Grand Square" situated at Kundli, Haryana vide Allotment Letter dated 29.08.2009. Thereafter, the Complainant paid Rs.22,00,000/- towards full and final payment for the aforesaid unit. The Complainant then entered into Memorandum of Understanding with the Opposite Party dated 29.08.2009. As per the Memorandum of Understanding the Complainant was assured that the possession of the unit would be handed over by the Opposite Party till August, 2012. Despite the payment of the above mentioned substantial amount and passing of over 3 years after the said M.O.U. the construction of the aforesaid unit was completely halted by the Opposite Party.
3. The Complainant further requested the Opposite Party to provide the expected date of delivery of the said unit but was of no avail. The Complainant made numerous attempts to communicate with the Opposite Party regarding the construction and possession of the said unit but was of no avail. The Complainant had paid a total sum of Rs.22,00,000/- as and when demanded by the Opposite Party till date but they failed to handover the physical possession of the said unit to the Complainant.
4. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant approached this Commission.
5. The Opposite Party has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party submitted that Complainant is not a „consumer‟ under the Consumer Protection Act, 1986 as the Complainant has invested the money to earn profits, which amounts ALLOWED PAGE 3 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022 MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
to commercial purpose. The counsel for the Opposite Party submitted that the Complainant defaulted in making due payments as per the Apartment Buyer Agreement which was not signed by the Complainant. 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 payment to the extent of Rs.22,00,000/- has been paid by the Complainant till date to the Opposite Party, is not in dispute in the present complaint.
WHETHER COMPLAINANT FALL IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
9. 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 comment on 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 ALLOWED PAGE 4 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022 MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
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."
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 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.
11. From the aforesaid dicta of the Hon‟ble National Commission, it flows that it is for the Opposite Party to prove that the apartment 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 said apartment 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 ALLOWED PAGE 5 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022 MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
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 complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
WHETHER THE OPPOSITE PARTY IS LIABLE FOR DEFECIENCY IN SERVICE?
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 or not. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection 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.
14. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:
(o)"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
15. The Opposite Party contended that the Complainant failed to make the payments prescribed as per the payment plan.
ALLOWED PAGE 6 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022
MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
16. On perusal of the record, we find that the Opposite Party failed to file any documentary proof, cogent evidence or any photographs regarding the progress of the construction as per the payment plan. However, till date the construction of the said Unit has not been completed by the Opposite Party.
17. At this stage, we deem it appropriate to refer to 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 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 7 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022 MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
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."
18. Relying on the above settled law, 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 Unit and kept the hard-earned money of the Complainant even after passing of 9 years.
19. 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.22,00,000/- (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 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 pays the entire amount on or before 19.02.2023; 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 19.02.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each instalment/payment ALLOWED PAGE 8 OF 9 C.No. 1290/2016 D.O.D.: 19.12.2022 MR. NARESH CHAWLA Vs. JBB EVEREST BUILDTECH PVT. LTD.
was received by the Opposite Party till the actual realization of the amount.
20. 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. 1,00,000/- as cost for mental agony and harassment to the Complainant;
B. Rs. 50,000/- as litigation cost to the Complainant;
21. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
22. 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.
23. 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 9 OF 9