State Consumer Disputes Redressal Commission
Mr. Gyaneshwar Singh Pangtey vs Yuvraj Infra. Venture Pvt. Ltd. on 26 September, 2022
C. NO. 1858/2017 D.O.D.: 26.09.2022
MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 10.11.2017
Date of hearing: 22.07.2022
Date of Decision: 26.09.2022
COMPLAINT CASE NO.- 1858/2017
IN THE MATTER OF
MR. GYANESHWAR SINGH PANGTEY
HOUSE NO.- 136,
SECTOR-23, GURGOAN- 122017,
HARYANA
(Through: V.K. & S Partners)
...Complainant
VERSUS.
YUVRAJ INFRA VENTURE PVT. LTD.
D-226, GROUND FLOOR,
DEFENCE COLONY,
NEW DELHI-110024.
ALSO, AT:
GROUND FLOOR, TOWER A,
TAPASYA CORPORATE HEIGHTS,
SECTOR 126, NOIDA-201301
(Through: Juris Global Law Firm)
...Opposite Party
ALLOWED PAGE 1 OF 13
C. NO. 1858/2017 D.O.D.: 26.09.2022
MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
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 the Opposite Party and has prayed the following reliefs:
a. Directing the opposite party to refund the amount of Rs. 7,87,900.00/- (Seven lakhs Eighty-Seven thousand Nine hundred Ninety Only) paid by the complaint towards the sale consideration and further direct the Respondent to pay interest of @24% per annum on the aforesaid amounts from the month of April 30,2015.
b. In addition to the above, direct the Respondent to pay a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only) towards mental agony, harassment and delayed possession; c. In addition to the above, direct the Respondent to pay the legal cost including but not restricted to costs of the pleader; d. Pass any order which this Hon'ble Forum may deem fit in the interest of justice.
2. The brief facts necessary for the adjudication of the present complaint are that in the year 2003, the Complainant booked an apartment with the Opposite Party in the project "Beetle Orchid"
situated at Knowledge Park III, Greater Noida, Uttar Pradesh, UP. Thereafter, the Opposite Party allotted an apartment no. A-309 in Tower-1 vide letter of acceptance dated 05.07.2013. The Opposite Party assured the complainant that the possession of the said apartment will be handed over to him within 2 years from the date ALLOWED PAGE 2 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
of application i.e. by March 2015. The Opposite Party failed to execute the Builder Buyer agreement as stated in Clause 17 of the letter of acceptance despite various requests made by the complainant.
3. More so, the Opposite Party issued demand letters on the complainant as per Payment Plan without raising any construction. The complainant visited office of the opposite party numerous times to know about the construction of the said project but no satisfactory response was given by the builder. He further visited the site of the project in March 2015 and noticed that the construction work was still in its primary stage. Aggrieved by the delay in completing the project, the complainant cancelled the booking of the said apartment and asked for refund of amount paid by him vide email dated 30.04.2015. The request for cancelling the said flat was duly acknowledged by Mr. Firoz Mehndi, an employee of the Opposite Party. However, till date no amount has been refunded by the Opposite Party. The Complainant over the time had paid a sum of Rs. 7,87,990/- to the Opposite Party as and when demanded by it. The Complainant also sent legal notice dated 04.07.2015 to the Opposite Party seeking refund of the amount along with interest but was of no avail.
4. The Opposite Party has contested the present case and contended that the Complainant is not consumer under the Consumer Protection Act, 1986 as the Complainant invested the money to earn profit, which amounts to commercial purpose. He further submitted that the Complainant has no cause of action to file the present complaint.
ALLOWED PAGE 3 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022
MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
5. The counsel for the opposite party further submitted that the said project is registered under RERA and therefore, the present complaint cannot be adjudicated by this commission. He also submitted that the delay in the completion of the project was due to Force Majeure conditions i.e., litigations between the farmers and greater Noida industrial authority, orders passed by hon'ble NGT etc.
6. 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.
7. We have perused the material available on record and heard the counsel for the parties.
8. The fact that the Complainant had booked an apartment bearing no. A-309 with the Opposite Party is evident from the letter of acceptance dated 05.07.2013 (Annexure P-1). Payment to the extent of Rs. 7,87,990/- by the Complainant to the Opposite Party is also evident from the Applicant Ledger attached with the complaint (Annexure P-2).
9. The first issue which needs our adjudication is whether the Complainant falls in the category of 'consumer' provided by the Consumer Protection Act, 1986. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 1986 as it invested the money to earn profit, which amounts to commercial purpose. 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 ALLOWED PAGE 4 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
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 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.
11. In the present case, the Opposite Party has merely made a statement that the Complainant 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.
ALLOWED PAGE 5 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022
MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
12. The second issue which needs our adjudication is whether the Complaint is filed within the period of limitation under Consumer Protection Act, 1986. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986 wherein it is provided 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 as this 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. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that this commission is empowered to admit a complaint if it is filed within a period of two years from the date on which cause of action has arisen. In the present case, neither possession of the said flat in question has been delivered by the Opposite Party nor the amount deposited by the Complainant has been refunded till date.
14. It is 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 ALLOWED PAGE 6 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
15. Applying the above settled law, it is clear that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to the Complainant, the Complainant is within his right to file the present complaint before this commission.
16. The counsel for the Opposite Party further contended that the project in question is registered under RERA and therefore, this commission cannot adjudicate the present complaint. The law is no more res integra on this issue and is well settled by the dicta in Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors." reported in (2021) 3 SCC 241, wherein the Apex Court has held as under:
"42. In a recent judgment delivered by this Court in Imperia Structures Ltd. Vs. Anil Patni, it was held that remedies under the Consumer Protection Act were in addition to the remedies available under specials statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are "without prejudice to any other remedy available". We place reliance on this judgment, wherein it has been held that: (SCC p.811, paras 31-32). "31. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the ALLOWED PAGE 7 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
proceedings under the CP Act with the permission of the Forum or Commission and file RCA No.3/2020 Smt. Manju Gupta & Anr. Vs. M/s Parsvnath Developers Ltd. Page No.10 of 14 an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.
32. Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under the said section is "without prejudice to any other remedy available". Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act".
17. It is clear from the above dicta that the remedies available under the Consumer Protection Act are in addition to the remedies provided under the special statutes and if the proceedings under the Consumer ALLOWED PAGE 8 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
Protection Act are initiated after RERA Act came into force, there is nothing in the RERA Act which bars such initiation. Relying on the above settled law, the contention of the Opposite party that this commission cannot adjudicate the present complaint complainant on the ground that the project is registered under RERA is devoid of any merit and dismissed.
18. The last issue which is to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainant. 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) 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 ALLOWED PAGE 9 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
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.
19. 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 apartment within two years from the date of application i.e., by March 2015 but we fail to find any document/provision which shows us the time period within which the Opposite Party had to handover the possession of the said apartment to the Complainant.
20. 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 ALLOWED PAGE 10 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
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."
21. A perusal of the above settled law makes it clear that 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. It is evident from the record that that the Opposite Party failed to handover the possession of the said apartment till date and more than fifteen years have been passed from the date of booking. Therefore, the deficiency on the part of Opposite Party stands proved.
22.The Opposite Party further submitted that the delay in the completion of the project was due to Force Majeure conditions i.e., litigations between the farmers and greater Noida industrial authority, orders passed by Hon'ble NGT etc. however, on perusal of record we do not find any evidence which shows us that any force majeure condition caused delay in the said project. 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 said project. It is the sole responsibility of the Opposite Party to complete the construction of the said project within time. The Complainants cannot be tormented due to the faults of the Opposite Party. Therefore, this contention of the Opposite Party is devoid of any merit and is dismissed.
ALLOWED PAGE 11 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022
MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
23. 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. 7,87,990/- 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 26.09.2022 (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 26.11.2022;
C. Being guided by the principles as discussed above, in case the Opposite Parties fails to refund the amount as per the aforesaid clause (A) on or before 26.11.2022, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
24. 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/-.
25. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
26. 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 ALLOWED PAGE 12 OF 13 C. NO. 1858/2017 D.O.D.: 26.09.2022 MR. GYANESHWAR SINGH PANGTEY VS. YUVRAJ INFRA VENTURE PVT. LTD.
uploaded forthwith on the website of the commission for the perusal of the parties.
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) JUDICIAL MEMBER Pronounced On:
26.09.2022 ALLOWED PAGE 13 OF 13