State Consumer Disputes Redressal Commission
Smt. Alka Ahuja vs M/S Piyush Buildwell India Ltd. on 25 October, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
JUDGMENT RESERVED ON: 29.09.2021
JUDGMENT PRONOUNCED ON: 25.10.2021
COMPLAINT NO. 77/2016
IN THE MATTER OF
SMT. ALKA AHUJA ....COMPLAINANT
VERSUS
M/S PIYUSH BUILDWELL INDIA LTD. ....OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. Kamal Mehta, Counsel for the complainant alongwith
complainant in person.
None for the Opposite Party.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The present complaint has been filed by the complainants under Section 17 of the Consumer Protection Act, 1986 alleging deficiency of service and unfair trade practice by the opposite parties and have prayed the following reliefs:
(a) Direct the Respondent to give immediate possession to the complainant pending the present complaint as the complainant has CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 1 of 14 paid 100% of the payments towards the demands raised up to offer of possession.
(b) Direct Respondent to obtain a permanent electricity connection for the society and also replace the existing generators with new ones.
(c) Direct the Respondent company to rectify the defects caused to the flat of the Complainant and if the same are permanent and incurable, compensate the complainant.
(d) Direct the Respondent to refund an amount of Rs. 77,317/- illegally charged from the Complainant in the name of open to sky car parking and to handover the common areas in which said parking slots have been created, to the Residents welfare Association of the society for appropriate common use of all the flat owners of the society.
(e) Direct the Respondent to Refund the Amount of Rs. 2,00,000/-
(Rupees Two Lacs Only) towards cost of furnishing within the flat of the complainant as promised but not provided.
(f) Direct the Respondent to refund an amount of Rs. 3,28,050/-(Rupees Three lacs twenty eight thousand fifty Only) charged in the name of increase in super area whereas there has been reduction in actual area against what was committed.
(g) Direct the Respondent to refund an amount of Rs. 72,168/- (Rupees Seventy two thousand one hundred sixty eight Only) illegally charged in the name of external development charges (EDC) and enhanced external development charges (EEDC).
(h) Direct the Respondent to refund the amount of Rs. 2,25,106/- (Rupees Two Lacs Twenty Five Thousand One Hundred and Six only) arbitrarily charged in the name of additional development charges even while the said development was part of the basic sale price.
(i) Direct Respondent to refund an amount of Rs. 56,180/-(Rupees Fifty six thousand one hundred eighty Only) charged in the name of club charges while the said land is a community space required to be provided by the Respondent at its own cost as per the bilateral agreement.
(j) Direct the Respondent to refund an amount of Rs. 19,775/-(Rupees Nineteen thousand seven hundred seventy five) charged towards gas pipeline installation whereas the respondent is not authorized to CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 2 of 14 execute the said job as respondent does not have a license from the state authorities for execution of this job.
(k) Direct the Respondent to pay penalty @ Rs.5/- (Rupees Five only) per sq.ft. per month on account of delayed delivery of possession as committed contractually.
(l) Direct the Respondent company to pay interest @ 18% p.a. on all the amounts due to the complainant.
(m) Direct the Respondent to pay a compensation of Rs. 4,00,000/-
(Rupees Four lacs Only) to complainant, towards the loss, mental agony and harassment caused to the complainant for over so many years.
(n) Pass such further order as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present case.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked a flat bearing no. O-713 with the opposite party in the project named as 'Piyush Heights' situated at Faridabad, Haryana. Thereafter, flat buyer agreement was executed between the parties on 13.10.2008. As per clause 27 (a) of the flat buyer agreement, the Opposite party had to complete the construction of the said flat within 36 months from the date of execution of this agreement. However, delayed possession was offered to the complainant by the opposite party on 18.03.2014 along with an arbitrary demand of Rs. 7,73,681/-. The complainant protested the said demand to the opposite party but it was of no avail. Thereafter, under compelling circumstances, the complainant made payment of Rs. 7,44,004/- on the assurance that no dues will be left after this payment but the possession of the said flat has not been handed over by the opposite party till date.
The Complainant over the time had paid a sum of Rs. 26,71,785/- to the opposite party as and when demanded by it.
CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 3 of 143. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that this commission does not have the territorial jurisdiction to adjudicate this complaint as the project in question is situated at Faridabad, Haryana. He further submitted that the complainant is not a consumer under the Consumer Protection Act, 1986 and the present complaint is barred by limitation.
4. The counsel for the Opposite Party submitted that the instant matter involves the violation of contractual obligations and therefore, needs to be dealt by the civil courts. The counsel for the Opposite Party further submitted that the arbitration clause mentioned in the flat buyer agreement bars the jurisdiction of this commission. He submitted that the complainant defaulted in making timely payments and therefore penalty for delayed possession is not applicable to her. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should 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. The opposite party failed to appear for final arguments, however his written arguments have been perused.
7. The fact that the Complainant had booked a flat with the Opposite Party is not in dispute from the evidence available on record. Payment to the extent of Rs. 29,55,983/- made by the Complainant to the Opposite party is evident from the receipts issued by the opposite party, attached with the complaint.
CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 4 of 148. Before delving into the merits of the case, we deem it appropriate to adjudicate the preliminary objections raised on behalf of the Opposite Parties.
WHETHER THE PRESENT COMPLAINT IS BARRED BY LIMITATION UNDER SECTION 24A OF THE CONSUMER PROTECTION ACT, 1986?
9. The Opposite Party has contended that the present complaint is barred by limitation. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986, which states 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."
10. Perusing the 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 arises. On perusal of record before us, it is clear that the possession was offered to the complainant by the opposite party on 18.03.2014 and the present complaint was filed on 23.01.2016, which is within the period of 2 years as provided under Section 24A of the Consumer Protection Act, 1986. Therefore, the present complaint is not barred by limitation.
CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 5 of 14WHETHER THIS COMMISSION HAS JURISDICTION TO DECIDE THE PRESENT COMPLAINT?
11. The counsel for the Opposite Party has raised an issue relating to the jurisdiction of this commission to try the present suit. He contended that the present matter involves violation of contractual obligation and therefore, needs to be adjudicated by the civil courts. He further contended that this commission does not have the territorial jurisdiction to adjudicate this complaint as the property in dispute is situated in Faridabad, Haryana.
12. The jurisdiction of consumer commissions to entertain cases of this nature has been settled via array of judgments. We tend to rely on 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 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.
13. The Hon'ble National Commission in the case of Rohit Srivastava v.
Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, has held as under:
"Having heard learned Counsel for the parties at some length, we are of the opinion that the order cannot be sustained. 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 CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 6 of 14 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. In the light of the said provision, in our view, it was open to the Complainant to choose the Forum to file the Complaint, which on the second occasion he decided to file before the State Commission at Delhi."
14. Relying on the above settled law, there is no iota of doubt that this commission has the jurisdiction to entertain the cases alleging deficiency of service in housing construction or building activity, as the present complaint is filed due the deficiency in service by the opposite party and not for any other reason. Consequently, the said contention of the opposite party is answered in the negative. Moreover, the Opposite Party has its registered office at A-16/B-1, Mohan Cooperative, Industrial Estate, New Delhi - 110044, which is evident in the flat buyer agreement dated 13.10.2008 till which, the jurisdiction of this commission extends. Therefore, this commission is fully empowered to adjudicate the present consumer complaint and is not paralyzed due to the want of territorial jurisdiction. WHETHER COMPLAINANT FALL IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
15. The Opposite Party contended that the complainant is not Consumer as defined under the Consumer Protection Act, 1986. 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 CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 7 of 14 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."
16. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the flat 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 has merely made a statement that the Complainant has purchased the flat 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 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.
EXISTENCE OF ARBITRATION CLAUSE IN THE AGREEMENT TO SELL
18. The objection raised by the Opposite Party is that since there exists an arbitration clause in the flat buyer agreement dated 13.10.2008, the parties should be referred to arbitration and this commission is barred CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 8 of 14 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 opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
19. 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 authorised to adjudicate the case and the existence of an arbitration clause in the agreement does not affect the jurisdiction of this commission.
DEFICIENCY OF SERVICE
20. Having discussed the preliminary objections raised on behalf of the Opposite Party, the next issue which arises is whether the Opposite Party is actually 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:
CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 9 of 14"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 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.
21. At this stage, we deem it appropriate to refer to clause 27 (a) of the flat buyer agreement dated 13.10.2008 entered into by both the contesting parties. It reflects that the Opposite Party was bound to complete the construction of the flat within 36 months from the date of execution of this agreement. However, the possession was offered CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 10 of 14 by the opposite party on 18.03.2014 along with a demand of Rs. 7,73,681/-. It is clear that the possession was offered by the opposite party after a delay of around 3 years from the stipulated date of delivery of possession mentioned in the flat buyer agreement dated 13.10.2008.
22. The opposite party further contended that the complainant defaulted in making timely payments. However, on perusal of record before us, we find that the complainant had already paid an amount of Rs. 19,27,781/- to the opposite party by the year 2011, which is more than 95% of the basic cost of the flat. Even after receiving more than 95% of the amount from the complainant, the opposite party failed to complete the construction of the said flat within the stipulated time period. We also find that the complainant had paid a sum of Rs. 29,55,983/- to the opposite party but the opposite party failed to handover the possession of the said flat till today. Therefore, the contention of the opposite party that the complainant defaulted in making timely payments does not hold merit.
23. On perusal of letter dated 27.10.2008 sent by the opposite party to the complainant, we find that the total cost of the flat in question is Rs. 20,14,780/-, which includes carparking charges, power backup charges, maintenance security charges, preferential location charges, external development charges (EDC) and Infrastructure Development Charges (IDC). However, the complainant had paid Rs. 29,55,983/- to the opposite party.
24. On perusal of statement of account attached with the letter dated 18.03.2014 vide which possession of the said flat was offered to the complainant by the opposite party, we find that various charges like cooking gas connection charges, club membership charges, development charges etc., which are not even mentioned in the flat CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 11 of 14 buyer agreement or letter dated 27.10.2008, have been incorporated by the opposite party.
25. As per the aforesaid discussions, we find that the opposite party had already taken Rs. 29,55,983/- from the complainant, which is more than the total cost of the flat mentioned in letter dated 27.10.2008 but still failed to handover the possession of the said flat to the complainant. 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 delivery of possession of the said flat and also failed to handover possession despite taking an amount of Rs. 29,55,983/- from the complainant.
26. Now we have to decide whether refund can be awarded in the present case as the complainant had prayed for possession of the flat. On this point, we deem it appropriate to refer to Parsvnath Exotica Resident Association Vs Parsvnath Developrs Ltd. & Ors. reported in IV (2016) CPJ 328 (NC), wherein the Hon'ble National Commission has held as under:-
"Though, in Consumer Complaint No. 45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the file deed in their favour, when this matter came up for hearing on
27.4.2016, the learned Counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them. The learned Counsel for the opposite party submitted in this regard that no prayer for CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 12 of 14 refund has been made in Consumer Complaint No. 45 of 2015. In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case."
27. Relying on the above settled law, it is clear that this commission, even in absence of specific prayer, can grant a relief which is justified and warranted in the facts and circumstances of the case. On perusal of record before us, we find that the Opposite Party failed to hand over the possession of the said plot even after receiving the amount of Rs. 29,55,983/-. In these circumstances, it appears that the Opposite Party is not in a position to handover the flat in question to the complainant. Therefore, as per the facts and circumstances of the present case, we are of the view that it is justified to refund the amount already paid by the complainant.
28. 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. 29,55,983/- 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 25.10.2021 (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 24.12.2021;
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 24.12.2021, the entire amount is to be refunded along with an interest @ 9% p.a. CC 77/2016 ALKA AHUJA VS M/S PIYUSH BUIDWELL Page 13 of 14 calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
29. 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. 2,00,000/- as cost for mental agony and harassment to the complainant; and D. The litigation cost to the extent of Rs. 50,000/-.
30. Applications pending, if any, stands 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.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
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