State Consumer Disputes Redressal Commission
Animesh Arya vs Parsavnath Developers Ltd. on 22 August, 2022
C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:24.12.2018
Date of hearing: 12.07.2022
Date of Decision: 22.08.2022
COMPLAINT CASE NO.- 1644/2018
IN THE MATTER OF
MR. ANIMESH ARYA
S/O LATE MR. GYAN CHAND ARYA
R/O D-11, SHUBHAN ENCLAVE,
PASCHIM VIHAR, NEW DELHI.
(Through: Mr. Ravinder Kumar Yadav, Advocate)
...Complainant
VERSUS
PARSVNATH DEVELOPERS LTD.
HAVING ITS CORPORATE OFFICE AT:
6TH FLOOR ARUNCHAL BULIDING
19, BARAKHAMBA ROAD, NEW DELHI-110001
REGISTERED OFFICE AT:
PARSVNATH METRO TOWAER,
NEAR SHAHDARA METRO STATION
SHAHADARA, DELHI.
(Through: KNM & Partners, Law Offices)
...Opposite Party
ALLOWED PAGE 1 OF 13
C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022
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 Party and has prayed the following reliefs:
(A) Direct Opposite Party to refund entire amount of Rs. 20,92,999/- along with interest @ 18 % p.a. from the date of respective payment till its realization to the Complainant i.e., Rs. 37,66,186/- (till 10.12.2018 interest on the principle amount); (B) Direct the Opposite Party to pay damages for the loss the Complainant would suffer due to increase in the cost of plot in a similar situated area for a plot of same size i.e Rs. 37,37,500/-;
(C) Direct the Opposite Party to pay damages for the loss the Complainant would suffer due to increase in the cost of construction i.e Rs. 29,49,000/-; (D) Direct the Opposite Party to pay damages of Rs 1,50,000/- to Complainants on account of mental agony, pain, suffering and harassment suffered due to deficiency in service, unfair and deceptive trade practice of the Opposite Party;
(E) Award Complainants Rs. 1,00,000/- as cost of this litigation, and;
(F) Impose exemplary costs upon the Opposite Party for the cheating, misappropriation and delay in delivering possession;
(G) Pass any other or further orders/direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case in favour of the Complainant and against the Opposite Party.
ALLOWED PAGE 2 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022
2. Brief facts necessary for the adjudication of the present complaint are that on 21.02.2005, the Complainant booked a residential plot bearing no. B-3413 with the Opposite Party in the project 'Parsvnath City' situated at Sonipat, Haryana. Thereafter, the Opposite Party issued allotment letter dated 22.09.2009 to the Complainant and assured to hand over the possession of the said plot within nine months from the date of booking. However, till date neither the construction has been completed nor the possession has been handed over by the Opposite Party. The Complainant over the time had paid a sum of Rs. 20,92,999/- to the Opposite Party as and when demanded by it. The counsel for the complainant further argued that License no. 878 to 894 of 2006 dated 25.04.2006 granted to the Opposite Party for the said project was cancelled vide order dated 04.02.2015 by the competent authority of Haryana. More so, the Opposite Party collected EDC/IDC from the buyers but the same was not deposited by the Opposite Party with the concerned authority. The Complainant sent legal notice dated 21.05.2018 to the Opposite Party seeking refund of the amount already paid by him alongwith interest but was of no avail.
3. 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 the Complainant is not consumer under the Consumer Protection Act, 1986 as the Complainant invested the money in real estate to earn profit. He further submitted that the present complaint involves complicated question of facts and law, which cannot be adjudicated in a summary procedure before this commission.
ALLOWED PAGE 3 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022
4. The counsel for the Opposite Party submitted that the delay, if any, occurred on account of global recession all over the world including the Indian economy. Pressing the aforesaid objections, the counsel appearing on behalf of the opposite party prayed that the complaint be dismissed.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have 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 complainant.
7. The fact that the Complainant had booked a plot with the Opposite Party is evident from the allotment letter dated 22.09.2022 (Annexure-C/7 of the complaint). Payment to the extent of Rs.
20,92,999/- by the Complainant is evident from the customer ledger issued by the Opposite Party. (Annexure-C/17 of the complaint).
WHETHER COMPLAINANT FALLS IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
8. The Opposite Party 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 ALLOWED PAGE 4 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 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."
9. 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."
10. 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.
11. 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 ALLOWED PAGE 5 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 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 plot. 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 PRESENT COMPLAINT IS BARRED BY LIMITATION AS PER THE CONSUMER PROTECTION ACT, 1986?
12. The Opposite Party 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.--
(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."
13. From perusal of above statutory provision of law, it is clear 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 ALLOWED PAGE 6 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 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. 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."
14. 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 is not delivered to the Complainant, he 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 THE PRESENT COMPLAINT INVOLVES COMPLICATED QUESTIONS OF FACTS AND LAW, WHICH SHOULD BE DECIDED BY THE CIVIL COURT?
15. The Opposite Party 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 and the Complainant is 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.
ALLOWED PAGE 7 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022
16. 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.
17. 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 undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
18. Returning to the facts of the present complaint, the perusal of the record shows that the Complainant avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to complete the said project, aggrieved by which, the Complainant has sought the refund of the amount paid by him. Hence, the Complainant are 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 reasonable time and it is only due to this reason, that the refund of the amount paid is sought from the Opposite Party, which this Commission is authorised to adjudicate.
19. 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 flat constructed by the Development Authority and enters into an ALLOWED PAGE 8 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 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.
20. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties.
21. 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.
WHETHER THE OPPOSITE PARTY IS DEFICIENT IN PROVIDING ITS SERVICES TO THE COMPLAINANT?
22. The main question for consideration before us is whether the Opposite Party is actually deficient in providing its services to the Complainant 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 ALLOWED PAGE 9 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 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.
23. Returning to the facts of the present case, it is noted that though the Complainant submitted that the Opposite Party assured him to hand over the possession of the said plot within nine months from the date of booking, however, we failed to find any document/provision which shows us that the possession of the said flat was to be handed over within 9 months from the date of booking by the Opposite Party.
ALLOWED PAGE 10 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022
24. 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."
25. 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. However, in the present case, it is clear that the Opposite Party failed to handover the possession of the plot 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 stand proved.
26. The Opposite Party further submitted that the delay in handing over the possession was on account of global recession which hit ALLOWED PAGE 11 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 economies all over the world including the Indian Economy, but more particularly the real estate sector. 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 complex in which the apartments were agreed to be sold to the Complainant. There was no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of project within the time stipulated in the Flat Buyer Agreement. Therefore, this contention of the Opposite Party, is devoid of any merit.
27. 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.20,92,999/-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 till 22.08.2022 (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 22.10.2022;
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 12.10.2022, the entire amount is to be refunded along with an interest 9% p.a. calculated from the date on which each ALLOWED PAGE 12 OF 13 C. NO.1644/2018 MR. ANIMESH ARYA VS. PARSVNATH DEVELOPERS LTD. D.O.D.: 22.08.2022 installment/payment was received by the Opposite Party till the actual realization of the amount.
28. 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/-.
29. The Opposite Party is also directed not to deduct any TDS on the amount being paid/refunded. Our view is fortified by the dicta of Bombay High Court in the case of Sainath Rajkumar Sarode & Ors. Vs. State of Maharashtra & Ors. reported in [2021] 283 TAXMAN 494 (Bom).
30. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
31. 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.
32. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) (JUDICIAL MEMBER) Pronounced On:
22.08.2022 ALLOWED PAGE 13 OF 13