State Consumer Disputes Redressal Commission
Parminder Singh vs M/S Tdi Infrastructure Ltd. on 6 July, 2023
C/1375/2018 D.O.D.: 06.07.2023
MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:18.10.2018
Date of hearing: 13.04.2023
Date of Decision: 06.07.2023
COMPLAINT CASE NO.-1375/2018
IN THE MATTER OF
MR. PARMINDER SINGH,
S/O MR.AMRIK SINGH,
R/O H.NO.379, BLOCK B SECTOR-19
DWARKA, NEW DELHI-110075.
(Through: Mr. Saket Paliwal, Advocate)
...Complainant
VERSUS
M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
THROUGH ITS MANAGING DIRECTOR/CEO/EXECUTIVE
CHAIRMAN
MAIN OFFICE: BHAGAT SINGH MARG,
GOLE MARKET, NEW DELHI-110001
(Through: Mr. Shaurya Punj, Advocate)
...Opposite Party
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C/1375/2018 D.O.D.: 06.07.2023
MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HO'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Saket Paliwal, Counsel for the Complainant
Mr. Shaurya Punj, counsel for the 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 for the following reliefs:
i) Direct the Respondent to develop the site and give possession of the plot to the Complainant requesting the dues to be paid correctly estimated as per Plan C payment schedule.
ii) Direct the respondent to restrain from asking for any further payment towards, any demand whatsoever, against incorrect statement of accounts which is estimated as per Plan B and charges interest on unpaid dues at 21% per annum and issues correct statement as per Plan C as on current basis and continues to do so on a monthly basis till the completion of development and allotment of the plot to the complainant.
iii) Direct the respondent to charge any EDC charges as per quoted (Rs 325 per sq Yard) at the booking of the Plot considering any increase in these ALLOWED PAGE 2 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD charges is due to the delay caused by the respondent in developing the site.
iv) Direct the respondent to develop the area and the plot site as per the layout / map committed to the complainant at the booking and no change in the layout shall be permitted.
v) Direct the respondent to pay compensation of Rs 10,00,000 to the complainants for inflicting mental pain, agony, harassment, torture and financial sufferings upon the innocent complainant for the past 13 years.
vi) Direct the respondent to pay litigation expenses of Rs. 60,000 to the complainant.
vii) Pass any other order or relief in favor of the complainant and against the respondent, which this Hon'ble consumer forum deems fit and proper."
2. Brief facts necessary for the adjudication of the present complaint are that on 13.12.2004, the Complainants booked a residential plot bearing no.C-C-35/I of 500 sq.yards with the Opposite Party for a total consideration of Rs.25,17,000/- in the project "TDI City Kundali" after an advance payment of Rs.2 lakhs and on on 25.05.2005received allotment letter for the said plot. Thereafter, on 14.10.2005, the Complainant received a letter issued by the Opposite Party dated 10.10.2005 wherein the payment plan was erroneously changed from 'Plan C' to 'Plan B', based on which the Opposite Party asked for further payment with an interest of 21% p.a. on the balance amount calculated as per 'Plan B'. On 19.03.2007, the Complainant met the Opposite Party's General Manager Mr. Ritesh Vijhani and he assured the Complainant in written that 'Plan C' will remain the same and interest shall not be ALLOWED PAGE 3 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD charged. The Opposite Party failed to offer possession of the said plot nor rectification in the payment schedule was carried out.
3. The Complainant visited the site of the project and was shocked to see that there was no demarcation of plot or any development whatsoever. Thereafter, Complainant sent various emails regarding the error in change of payment from 'Plan C' to 'Plan B' and also met the Director and Manager of the Opposite Party personally on several occasions at their office but no satisfactory response was received. More so, vide Offer of Possession letter dated 13.12.2017, the Opposite Party illegally demanded an amount of Rs.69,08,233.83/- calculated as per Plan B for the said plot. The counsel for the Complainant argued that the Complainant has been running from pillar to post for getting the possession of the said plot since 2005 but the Respondent's officers have harassed the Complainant by acting in an arbitrary manner.
4. The Opposite Party has filed its written statement and has submitted therein that the present Complaint is not maintainable since the Complainant is a mere investor and does not fall under the purview of a "Consumer' as defined under the Consumer Protection Act,1986. Secondly, it is submitted that no deficiency can be attributed to the Opposite Party since the Opposite Party sent Offer of Possession vide letter dated 13.12.2017. It was only later on 12.06.2018 that Opposite Party cancelled the allotment of plot due to non -payment of agreed amount despite giving various reminders to the Complainant.
5. The Complainant has filed his rejoinder and has denied the averments of the Opposite Party therein.
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MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
6. The Parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
7. We have perused the material available on record and heard the counsels for the parties.
8. The fact that the Complainants had booked a plot bearing no.C-C-
35/I of 500 sq.yards with the Opposite Party is evident from the Allotment Letter dated 25.05.2005 (pg 31 Annexure). Payment to the extent of Rs. 13,30,000/- by the Complainants to the Opposite Party is evident from the receipts issued attached with the complaint. (pg 28-39 of Annexure).
9. The preliminary question for adjudication is whether the Complainant falls in the category of a consumer as defined under the Consumer Protection Act, 1986.
10. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 1986 as the Complainant booked the flat for investment, 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 ALLOWED PAGE 5 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
11. 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."
12. The main question that falls for our consideration is whether the Opposite Party arbitrarily changed the payment plan from 'Plan C' to 'Plan B'
13. On a bare perusal of the demand letter dated 11.04.2005 ((pg 30 of Annexure) it is clear that initially, the Complainant opted for payments according to Plan C. Similarly, a perusal of the demand letter dated 02.06.2005 (pg 32 of Annexure) also reflects the schedule of payments as per Plan C. It is to be noted that as per the demand letter dated 10.10.2005, the payment schedule has been suddenly changed to Plan B from Plan C without any prior intimation to the Complainant and without recording any reasons in writing. The objections raised by the Complainant against the arbitrary change in plan of payment schedule can be gauged ALLOWED PAGE 6 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD through the letters/emails dated 10.10.2005, 24.10.2005, 18.02.2006, 14.08.2008, 12.12.2009, 09.04.2011, 22.09.2011, 29.03.2012, 20.04.2012, 06.07.2012, 05.011.2012, 05.09.2013, 23.09.2016, 29.08.2017, 30.12.2017, 27.06.2018 sent to the Opposite Party. Furthermore, we deem it appropriate to reproduce the Revised Annexure dated 19.03.2007 (Pg-38-39 of Annexure).
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MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
14. The Revised Annexure dated 19.03.2007 (Pg-38-39 of Annexure) clearly records handwritten assurance given to the Complainant as "Plan C interest shall not be charged and further information/demand shall be made as per site details" and bears the signature of Mr. Ritesh Vijhani, GM, Business and Development. The Revised Annexure further records a handwritten assurance dated 9.05.2007 bearing the signature of Mr. Ritesh Vijhani which mentions "payment shall be demanded as per development status from the customer and the customer shall be updated about the same within 90 days".
15. We do not find any merit in the submissions of the Respondent that the Complainant has made payments in part, belatedly after gaps of months/years. It is to be noted that the Complainant has sent 16 letters complaining to the Opposite Party which is itself sufficient to indicate that the Opposite Party did not rectify the discrepancy in the payment plan and did not provide possession to the Complainant for over 13 years. In our view, the Complainant cannot be expected to make payments as per the altered plan i.e. 'Plan B' in view of the fact that the plan was changed arbitrarily by the Opposite Party, without knowledge and consent of the Complainant. Furthermore, it is evident from the aforesaid letters of communication that despite giving assurances, the Opposite Party did not cater to the requests of the Complainant for rectification of the discrepancy in the payment plan. Additionally, the medical record filed by the Complainant explains the inability of the Complainant to conduct deliberations with the Opposite Party during the period of 2013-2015 and further strengthens the ALLOWED PAGE 8 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD submission that despite suffering from colon cancer, Complainant visited the office of the Opposite Party multiple times requesting for rectification of the discrepancy in the payment schedule.
16. It is to be noted that plot in question was allotted to the Complainant on 25.05.2005 as is evident from then letter of allotment dated 25.05.2005 (pg 31 Annexure). Furthermore, we deem it appropriate to reproduce the "Alternate Provisional Allotment Letter dated 10.12.2019" (pg 43-44 alongwith the rejoinder) sent by the Opposite Party to the Complainant:
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MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
17. The Alternate Provisional Allotment Letter clearly records the admission on part of the Opposite Party that on account of reasons beyond its control, the Opposite Party has been unable to offer the ALLOWED PAGE 10 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD unit to the Complainant even after roughly 14 years from the date of allotment till the date of the issuance of the alternate provisional allotment letter i.e. 10.12.2019, which clearly establishes the deficiency on part of the Opposite Party.
18. In this regard, it is appropriate to refer to the recent pronouncement of Hon'ble NCDRC in the case of "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." reported in MANU/CF/0296/2019, 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 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."
19. The aforesaid dicta makes 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 stands proved. In the present case, the Complainants were allotted the plot vide letter dated 25.05.2005. The Complainants were offered possession only in 2017 vide offer ALLOWED PAGE 11 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD of possession letter dated 13.12.2017. Thus, it is established that the possession of the said flat has not been offered to the Complainant even after expiry of 46 months from the date of booking. Therefore, the deficiency on the part of the Opposite party stands proved.
20. We also deem it appropriate to refer to Aashish Oberai vs. Emaar MGF Land Limited reported in I (2017) CPJ 17 (NC), wherein the Hon'ble National Commission has held as under:
"I am in agreement with the learned senior counsel for the Complainant that considering the default on the part of the Opposite Party in performing its contractual obligation, the Complainant cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.
21. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite Party for no reason made the Complainant run pillar to post and did not rectify the discrepancy in payment plan, thus highly delaying the transfer of possession by more than a decade. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to :
A. Issue correct statement of accounts as per Plan C on current basis till the allotment of the plot to the Complainant B. The Opposite Party is directed to the complete the development as per the layout map committed to the Complainant without any changes and allot the said plot ALLOWED PAGE 12 OF 13 C/1375/2018 D.O.D.: 06.07.2023 MR. PARMINDER SINGH VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD within one month from 06.07.2023 ( being the date of the present judgment) C. The Opposite Party is further directed not to charge any EDC charges from the Complainant
22. 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. 12,00,000/- as cost for mental agony and harassment to the Complainant; and B. Rs. 1,00,000/- to the Complainant as litigation charges
23. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
24. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
25. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) ( J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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