State Consumer Disputes Redressal Commission
Pawan Singh & Anr. vs Imperia Structures Ltd. on 24 May, 2022
C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 08.08.2019
Date of hearing: 21.04.2022
Date of Decision: 24.05.2022
COMPLAINT CASE NO.- 756/2019
IN THE MATTER OF
1. PAWAN SINGH
S/O BRAHAM SINGH
R/O B-110, SURAJMAL VIHAR,
EAST DELHI, DELHI - 110092
2. VIKAS PANWAR
S/O JAGDISH SINGH
R/O 78 C, JHANG APARTMENT
SECTOR-13, PLOT NO. 40, ROHINI
DELHI-110085
(Through: Gayatri Nandwani, Advocate)
...Complainants
VERSUS
1. IMPERIA STRUCTURES LIMITED
THROUGH ITS AUTHORISED REPRESENTATIVE
HAVING ITS REGISTERED OFFICE AT
A-25, MOHAN COOPERATIVE INDUSTRIAL ESTATE
NEW DELHI-110044
(Through: ATHENA LEGAL, Advocates)
...Opposite party
ALLOWED PAGE 1 OF 8
C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MR. RAJAN SHARMA, (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 complainants before this commission alleging deficiency of service and unfair trade practice by the opposite party and has prayed the following:
"A. Pass an Order directing the Opposite Party to handover complete vacant physical possession of Flat No. 604, situated on 6th Floor of Block-1 of Opposite Party's upcoming project titled 'Imperia Mirage' to the Complainants within a period of three months from filing of the present Complaint; and B. Pass an order directing the Opposite Party to execute Sale Deed in favour of the Complainants for allotted Flat No. 604, situated on 6th Floor of Block-1 of Opposite Party's upcoming project titled 'Imperia Mirage' within a period of three months from filing the Complaint; and C. Pass an order directing the Opposite Party to pay interest calculated @ 18% per annum from the date when the payment was made by the Complainants till the date of handing over of vacant physical possession of Flat No. 604, situated on 6th Floor of Block-1 of Opposite Party's upcoming project titled 'Imperia Mirage' and execution and registration of the Sale Deed in favour of the Complainants within three months from filing the Complaint;
OR D. In the alternate, direct the Opposite Party to refund the amount paid by the Complainant to the tune of Rs. 13, 93, 595/- (Rupees Thirteen Lacs Ninety Three Thousand Five ALLOWED PAGE 2 OF 8 C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022 Hundred and Ninety Five Only) alongwith interest @ 18% p.a from the date of payment; and E. Pass an Order directing the Opposite Party to pay Penalty in terms of Original Penalty Clause in the Confirmation Letter/Builder Buyer Agreement for such delay caused in delivering possession of Flat No. 604, situated on 6th Floor of Block-1 of Opposite Party's upcoming project titled 'Imperia Mirage' in terms of which clause the Opposite Party is liable to pay Penalty to the Allottees @ Rs. 5 Per sq. ft. of Unit Per month for any delay in Possession beyond the given date plus grace period of 3 months till the offer of possession or handing over of Unit whichever is earlier; and F. Pass an order directing the Opposite Party to pay a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only) towards mental harassment and agony caused to the Complainants; and G. Pass an Order directing the Opposite Party to pay Rs. 75,000/- towards the cost of Litigation of the present Complaint; and H. Pass any order(S) or reliefs(S) as this Hon'ble commission may find deem fit and proper in the facts and circumstances of this case."
2. Brief facts necessary for the adjudication of the present complaint are that on 02.03.2013, the Complainants booked a flat bearing no. 604 with the opposite party in the project 'Imperia Mirage' situated at Greater Noida, Uttar Pradesh. At the time of booking, it was assured to the complainants that the possession of the said flat will be delivered within 36 months of the booking i.e. by March 2016. Thereafter, Apartment buyer agreement was signed between the parties on 17.05.2015. The complainants were shocked to see that as per clause D(10) of the agreement dated 17.05.2015, the Opposite Party has to give the possession of the said flat within 48 months instead of 36 months, which was initially promised to the ALLOWED PAGE 3 OF 8 C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022 complainants. The complainants alleged that the Opposite party tampered and fabricated paragraph 10 of the Agreement. The complainants over the time had paid a sum of Rs. 13,93,595/- to the Opposite Party as and when demanded by it. Till date neither construction of the said project has been completed nor the possession has been handed over by the Opposite Party.
3. During the course of proceedings, notice was issued to the opposite party on 02.09.2019, the Opposite party filed the memo of appearance on 12.12.2019 and was directed to file the written statement. However, the Opposite party failed to file its written statement within the stipulated period. Consequently, this commission, vide order dated 05.10.2020, closed the right to file written statement of the Opposite Party. Since the Opposite party has failed to file its written statement, the averments made by the complainant in the present case remains unrebutted.
4. The Complainant has duly filed his evidence and written arguments.
5. We have perused the material available on record and heard the counsel for the complainant.
6. The only question of consideration before us 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:
"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 ALLOWED PAGE 4 OF 8 C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022 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.
7. At this stage, we deem it appropriate to refer to clause D(10) of the Agreement dated 17.05.2015 entered into by both the contesting parties. It reflects that the Opposite Party was bound to handover the possession of the said flat within 48 months plus grace period of 3 months from issue of the confirmation letter. However, till date neither the construction of the said flat has been completed by the ALLOWED PAGE 5 OF 8 C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022 opposite party nor the possession of the said flat has been delivered to the complainants.
8. 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.
9. 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 had given false assurance to the complainant with respect to the time for handing over the possession of the said flat and kept the hard-earned money of the complainants for about 7 years. Therefore, now the complainants are not bound to take the possession of the said flat after the stipulated period.
10. Although the Complainants submitted that the opposite party fabricated clause D(10) of the Apartment Buyer Agreement to enlarge the time for handing over possession of the said flat but we failed to find anything from the records which shows us that the said Agreement was fabricated by the Opposite Party. It is further noted that Apartment Buyer Agreement was duly signed by the parties.
11. Keeping in view the facts of the present case and the extensive law as discussed above, since the opposite party is deficient in providing its services to the complainants, we direct the Opposite Party to ALLOWED PAGE 6 OF 8 C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022 refund the entire amount paid by the complainants i.e., Rs. 13,93,595/- 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 24.05.2022 (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 24.07.2022;
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 24.07.2022, 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.
12. 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 compensation for mental agony and harassment caused to the complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
13. The opposite party is also directed not to deduct any TDS on the amount being paid/refunded. Our view was 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).
14. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
ALLOWED PAGE 7 OF 8 C.C 756/2019 PAWAN SINGH & ANR. VS. IMPERIA STRUCTURES LIMITED D.O.D. : 24.05.2022
15. 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.
16. File be consigned to record room along with a copy of this Judgment (JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER Pronounced On: 24.05.2022 ALLOWED PAGE 8 OF 8