State Consumer Disputes Redressal Commission
Mrs. Preeti Parashar vs M/S Tdi Infrastructure Ltd. on 20 March, 2023
C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 10.12.2014
Date of reserving the order: 07.02.2023
Date of Decision: 20.03.2023
COMPLAINT CASE NO.- 623/2014
IN THE MATTER OF
MS. PREETI PARASHAR
W/O MR. MANOJ PARASHAR
R/O C-12/430, YAMUNA VIHAR, DELHI
THROUGH ITS GENERAL ATTORNEY
MR. P.N. PRASHAR S/O MR. DESH RAJ PRASHAR
R/O C-12/430, YAMUNA VIHAR, DELHI
(Through: Mr. Rajiv Vig, Advocate)
...Complainant
VERSUS
M/S TDI INFRASTRUCTURE LTD.
10, SAHEED BHAGAT SINGH MARG,
GOLE MARKET, NEAR JAIN BHAWAN,
NEW DELHI-110001
THROUGH ITS: MANAGING DIRECTOR/PRINCIPAL
OFFICER/MANAGER
(Through: Ms. Kanika Agnihotri, Advocate)
...Opposite Party
CORAM:
HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
ALLOWED PAGE 1 OF 16
C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023
Present: Mr. Rajiv Vig, counsel for the complainant
Mr. Shaurya Purohit, proxy counsel for the OP
PER: HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
JUDGMENT
1. The complainant in the present complaint, which was filed on 10.12.2014, has prayed for the following reliefs:
"(i) To immediately refund to complainant the entire amount of her deposits to the tune of Rs.18,40,000/-
(Eighteen lakh and forty thousand only) with interest @24% p.a. from the date of each and every deposit till its actual payment/refund; and
(ii) To pay to the complainant a sum of Rs.5,00,000/- (Five lakh only) as compensation for having caused huge financial losses besides physical and mental harassment, hardship and humiliation to the complainant during last 8 years; and
(iii) To pay the legal and other expenses/ cost of the present proceedings to the tune of Rs.1,00,000/-. Any other order[s] or relief[s], which the Hon'ble District Forum may deem fit and proper, in the facts and circumstances of the case, including cost of complaint, may also be passed in favour of complainant and against the opposite party."
2. Brief facts necessary for adjudication of the present complaint are that the Complainant had booked a commercial shop in the project of the Opposite Party by the name of "Rodeo Drive" Mall & Multiplex located at TDI City, Kundli, Sonepat, Haryana and had paid the registration amount of Rs.3,80,000/- vide cheque bearing ALLOWED PAGE 2 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 no. 57062 dated 19.12.2016. Complainant had entered into the Buyers Agreement on 29.12.2006 with Opposite Party qua office/shop/unit no. FF-90 on First Floor in the abovesaid mall admeasuring 335 sq. ft. and the total sale consideration of the said office/shop/unit was Rs.23,00,000/-.
3. The complainant had opted Payment Plan No. 2 which is also known as "Construction Linked Plan" by Opposite Party. As per Buyers Agreement dated 29.12.2006, the total sale consideration of the said flat was Rs.23,00,000/-. As per Construction Linked Plan, the payment plan of the said commercial shop was to be made as follows: (20% at the time of booking + 10% at the time of excavation + 10% on start of casting level one basement roof + 10% on start of casting of ground floor roof + 10% on start of casting of first floor roof + 10% on start of casting of second floor roof + 10% on start of casting of third floor roof + 10% on internal plastering, fire fighting, electrical work and common area flooring + 10% on possession).
4. As per Article 4 (1) of Buyers Agreement, possession of the said commercial shop was to be handed over within 24 months on the signing of the Buyers Agreement with a grace period of six months.
5. It is the case of the Complainant that out of the total 9 payments as per the "Construction Linked Plan", 7 payments amounting to Rs. 18,40,000/- had been paid by the complainant, as and when these were demanded by the opposite party. Remaining two instalments of Rs.2,30,000/- (each) were to be made at the time of ALLOWED PAGE 3 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 completion of construction and handing over possession of the said commercial shop to the Complainant.
6. It is further case of the complainant that after making 7 payments during the period from 19.12.2006 to 16.07.2010, Opposite Party stopped responding to the complainant. Despite several visits, opposite party failed to give any clear reply regarding possession of the shop and only excuses were given every time.
7. It is also pertinent to mention here that 7 payments out of total 9 payments had already been made by the Complainant as per the "Construction Linked Plan." However, the construction of the said project was not completed till 2014.
8. Time and again, complainant had tried to inquire from the opposite party about the progress of the aforesaid project but every time excuses were given by the Opposite Party with regard to completion of aforesaid project. Complainant was left with no other option but to serve a legal notice dated 26.09.2014 and requested the Opposite Party to refund the entire amount paid by complainant along with interest @24% and damages to the tune of Rs.5,00,000/- towards not handing over the possession of the said commercial shop, but of no avail.
9. Aggrieved by the aforesaid, 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.
10. Notice of the complaint was issued to the Opposite Party on 07.01.2015.
ALLOWED PAGE 4 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023
11. Upon service, the Opposite Party had filed the written statement along with an application seeking dismissal of complaint on 11.03.2016, wherein it was submitted that the Complainant had availed the services for commercial purpose so Complainant is not a consumer and the present Complaint needs to be dismissed and does not come under the purview of the Consumer Protection Act, 1986. Mere averment made by the Complainant that commercial shop is booked to earn her livelihood is not enough, the same has to be proved by the Complainant. Further that the Complainant is a resident of Yamuna Vihar, Delhi and the commercial shop in question is situated in Kundli, Sonepat, Haryana, so it has to be assumed that shop is purchased for sole purpose of gaining profits. Complainant has not paid instalment on time and the present complaint is barred by limitation.
12. The complainant filed rejoinder on 26.04.2017, rebutting the averments made in the written statement filed by the Opposite Party. Complainant has also denied the allegations raised by the Opposite Party and recapitulated the facts stated by her in the complaint.
13. Complainant had filed evidence by way of affidavit on 26.04.2017 in order to prove her averments on record. Evidence by way of affidavit is duly supported by an affidavit of Mr. P.N. Prashar S/o Mr. Desh Raj Prashar, General Attorney of the Complainant.
14. Opposite Party had also filed evidence by way of affidavit on 15.12.2018 in order to prove their averments on record.
ALLOWED PAGE 5 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023
Evidence by way of affidavit is duly supported by an affidavit of Mr. Paras Arora S/o Mr. Deepak Arora, AR of the Opposite Party.
15. Written arguments have also been filed on behalf of both the parties.
16. We have given considerable thought to the submissions put forth by the parties and perused the material available on record.
17. The Opposite party contested the present case and raised the preliminary objections as to the maintainability of the present complaint. Counsel for the Opposite Party has submitted that consumer complaint can only be filed by a "Consumer" as defined under the Consumer Protection Act and the present complaint involves complicated questions of law, which cannot be decided in summary procedure adopted by this Commission and defaulters ought not to be granted compensation/interest and the present complaint is filed without any cause of action and the present complaint is barred by limitation.
18. Before delving into the merits of the case, we deem it appropriate to adjudicate all the preliminary objections raised by the Opposite Party in the present complaint.
19. The first question for consideration before us is whether a consumer complaint can only be filed by a "Consumer" as defined under the Consumer Protection Act. The Opposite Party contended that the consumer complaint can only be filed by a consumer as defined under the Consumer Protection Act. To resolve this issue, we deem it appropriate to refer to Section 2 (1) (d) of Consumer Protection Act, 1986:
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"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] 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;
20. In the present case, Complainant had submitted that she is an educated lady and had booked the said shop for her own profession/business to earn her livelihood. But, on the other hand, Opposite Party has merely made a statement that the Complainant purchased the said shop for commercial purpose and on perusal of the record before us; we fail to find any material which shows that the Complainant had booked the said shop for commercial ALLOWED PAGE 7 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 purpose and for gaining profit. Mere allegation, that the purchase of the said shop is for commercial purpose and consumer complaint can only be filed by a consumer as per Consumer Protection Act, cannot be the ground to reject the present consumer complaint. Hence, we are of the considered view that the shop purchased by the Complainant is only for earning her livelihood and Complainant is a consumer as defined in 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.
21. The second question for consideration before us is whether the present complaint involves complicated question of facts and law, which should be decided by the civil court. The Opposite Party contended that the jurisdiction of this Commission would be barred since the present complaint is in fact a suit for recovery on which court fees is payable and would lie in a Civil Court and the Complainant in order to save the payment of court fees has filed the complaint under the Consumer Protection Act, 1986. Moreover, the complicated question of facts and law which have been raised in the present complaint can only be decided before the Civil Court.
22. It is imperative to refer to the dicta of the Hon'ble Supreme Court in J.J. Merchant Versus Shrinath Chaturvedi (2002) 6 SCC 635 wherein it was inter alia held by the Hon'ble Supreme Court as under:
"Under the Act the National Commission is required to be headed by a retired Judge of this court and the State Commission is required to be headed by a retired High Court Judge. They are competent to ALLOWED PAGE 8 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumes should be directed to approach the civil court. It was further held that merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."
23. Returning to the facts of the present complaint, and the perusal of the record shows that the Complainant had availed the services of the Opposite Party for a consideration. However, the Opposite Party failed to handover the possession of the said shop within the stipulated time, aggrieved by which, the Complainant has sought refund of her money along with the compensation for delay from the Opposite Party. 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 i.e., the failure of the Opposite Party to handover the possession within stipulated time.
24. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such ALLOWED PAGE 9 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 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.
25. The third question for consideration is whether Complainant is a defaulter in making the timely payment. The Opposite Party contended that defaulters ought not to be granted compensation/interest as the complainant is defaulter because she had not made timely payments to the Opposite Party and had placed reliance on the judgment of the Hon'ble National Commission passed in Revision Petition No. 1829 of 2012 titled Khandrika Aruna Vs. Janachaitanya Housing Ltd. Dated 03 January 2013 by the Opposite Party, relevant portion of the judgment has been reproduced under:
"It was also clear that those who committed default in payment, their membership was to be cancelled without further notice and all amounts paid by such members till then were to be forfeited treating as compensation and liquidated damages for such breach of trust."
26. However, bare perusal of the facts of the present case, it is noted that out of the total nine payments, seven payments have already been paid by the complainant during the period from 19.12.2006 to 16.07.2010. As on date, total amount of Rs.18,40,000/- has already been paid by the Complainant and remaining two instalments of Rs.2,30,000/- (each) were to be made at the time of handing over the possession, this fact is also not disputed by the Opposite Party. Thereafter, Opposite Party did not ALLOWED PAGE 10 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 raise any demand letter and when on several occasions Complainant had visited the office of the Opposite Party, the Opposite Party failed to give clear reply regarding possession of the shop.
26. Keeping in view the brief facts of the case, we are of the considered view that Complainant is not a defaulter in making the timely payment to the Opposite Party. Default is in fact on the part of the Opposite Party as Opposite Party stopped responding to the Complainant after receiving the substantial amount from the Complainant. Consequently, the objection raised on behalf of the Opposite Party is answered in negative.
27. The fourth question for consideration before us is whether the complaint is barred by Limitation and whether the complainant has any cause of action to approach this commission under the Consumer Protection Act, 1986. The facts of the present case show that the possession of the said commercial shop has not been handed over to the Complainant till date. To adjudicate this issue, it is imperative to refer Section 24A of the Consumer Protection Act, 1986:
"24A. Limitation Period.- (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 had 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 ALLOWED PAGE 11 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 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."
28. Analysis of Section 24A of the Consumer Protection Act, 1986 shows that this Commission is empowered to admit a complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. We 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:
"The Opposite Party contested the complaint as being barred by limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 since the last date stipulated in the buyers' agreement for giving possession of the flat expired more than 2 years ago. 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. It is only when the seller virtually refused to give possession, that the period of limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer. In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time. Therefore, the cause of action continues to subsist in favour of the Complainant."
29. Applying the above settled law, since the Opposite Party has not refused to hand over the possession of the commercial shop and not even given any clear reply to the ALLOWED PAGE 12 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 complainant with regard to handing over possession of the commercial shop. Hence, the cause of action continues to subsist in favour of the Complainant and the present complaint is within the period of limitation/not barred by the limitation. It is also clear that the complainant is within his right to file the present complaint as the possession of the said commercial shop is still pending; giving the complainant a recurrent cause of action to file the present complaint.
30. The last question for consideration is whether the Opposite Party is deficient in providing its services to the Complainants or not. 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) ALLOWED PAGE 13 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 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.
31. We deem it appropriate to refer to Article 4 (1) of Buyers Agreement dated 29.12.2006 entered between both the contesting parties. It reflects that the Opposite Party was bound to hand over the possession of the said shop within 30 months from the date of entering into Buyers Agreement i.e. before July 2009. However, till date offer of possession has not been issued by opposite party. However, it is settled law that the Complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which she had spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC
442)
32. Consequently, we hold that the Opposite Party is deficient in providing its services to the Complainants since it has failed to hand over possession of the commercial shop within a reasonable time period and Complainant is ALLOWED PAGE 14 OF 16 C/623/2014 MS. PREETI PARASHAR VS. M/S TDI INFRASTRUCTURE LTD. D.O.D.: 20.03.2023 entitled for the refund of the money deposited by her to the Opposite Party.
33. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e., Rs.18,40,000/- 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 20.03.2023 (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 19.05.2023;
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 19.05.2023, 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.
34. 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; and B. The litigation cost to the extent of Rs.50,000/-.
35. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
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36. 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.
37. File be consigned to record room along with a copy of this Judgment.
(RAJAN SHARMA) MEMBER (JUDICIAL) (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On: 20.03.2023 ALLOWED PAGE 16 OF 16