State Consumer Disputes Redressal Commission
Mrs. Promil Yogeshwar Trehan & Anr. vs M/S Spaze Towers Pvt. Ltd. on 2 April, 2024
C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 04.10.2019
Date of reserving the order: 16.10.2023
Date of Decision: 02.04.2024
COMPLAINT CASE NO.- 934/2019
IN THE MATTER OF
1. MS. PROMIL YOGESHWAR
W/O MR. Y.N. TREHAN
R/O D/1-121, JANAKPURI,
NEW DELHI-110058
2. MR. UTPAL TREHAN
S/O MR. Y.N. TREHAN
R/O D/1-121, JANAKPURI,
NEW DELHI-110058
(Through: Complainant No. 2, In Person)
...Complainants
VERSUS
M/S SPAZE TOWERS PRIVATE LTD.
REGD. OFFICE:
A-307, ANSAL CHAMBERS-1,3,
BIKAJI CAMA PLACE, NEW DELHI-110066
CORPORATE OFFICE:
SPAZEDGE, SECTOR-47, GURGAON-SOHNA ROAD,
GURGAON, HARYANA-122002
(Through: Mr. Lokesh Bhola, Advocate)
...Opposite Party
CORAM:
HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Complainant No. 2, In Person
Mr. Lokesh Bhola, counsel for the OP
PER: HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
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JUDGMENT
1. The Complainants, in the present complaint, which was filed on 04.10.2019, have prayed for the following reliefs:
"(i) Direct the Opposite Party to give the possession of shop G-08 at the earliest;
(ii) Direct the Opposite Party to pay an amount equivalent towards delayed interest from 2009 onwards @18% as charged by the Opposite Party till date;
(iii) Direct the Opposite Party to refund 50% of the principal amount paid by the Complainants as actual area size of the shop was reduced to more than 50% than the initially sold shop area size of 886 sq. ft.;
(iv) Direct the Opposite Party to pay an amount of Rs.25,00,000/- as compensation for causing mental trauma an agony caused to a septuagenarian & injured Complainants due to delay in giving the possession that affected her source of earning a livelihood;
(v) Direct the Opposite Party to waive off undue illegal demands & interest as well as the maintenance charges raised;
(vi) Direct the Opposite Party to pay a sum of Rs.1,00,000/- towards cost of litigation;
(vii) Pass any other such order, as this Hon'ble Commission may deem fit and proper in the interest of justice."
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant No. 1 is a senior citizen whose profession is in interior and decor works since year 2008 and her son/Complainant No. 2 is developing handicap due to grievous accident injuries which he had met out in the year 2005. In the hope of earning the livelihood by means of self- employment, the Complainants had planned to have exclusive shop for themselves. Thus, on the representation of the agents of the Opposite Party, on 25.08.2009, the Complainants had booked commercial space of 886 sq. ft. in the "Spaze Business Park" commercial complex of the Opposite Party (as evident from Annexure-1 colly) and the Complainants had paid an amount of ALLOWED PAGE 2 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 Rs.5,12,108/- to the Opposite Party vide cheque bearing no. 183234 dated 25.08.2009 drawn on Punjab National Bank, towards advance booking amount (as evident from Annexure-2). Thereafter, the Complainants had further paid an amount of Rs.5,12,170/- to the Opposite Party vide cheque bearing no. 354341 dated 22.10.2009 drawn on Punjab National Bank, towards second installment (as evident from Annexure-2). Thereafter, the Opposite Party issued „Allotment Letter‟ dated 22.01.2010 (Annexure-3) to the Complainants, vide which Unit No. G-08 admeasuring of 805 sq. ft. on Ground Floor, Block-A in commercial complex namely „Spaze Business Park‟ upcoming in Sector-66, Golf Course Extension Road, Gurgaon, Haryana, was allotted to the Complainants. As per Allotment Letter, the total sale consideration of the commercial unit was of Rs.51,82,346/-. On 22.1.2010, the Opposite Party issued „Payment Plan‟ to the Complainants for making the payment of the booked commercial unit. As per Payment Plan, the payment of the said commercial unit was to be made as follows:
(Rs.5,00,000/- at the time of booking + Rs.4,30,636/- within 60 days of booking + Rs.3,48,989/- on excavation + Rs.4,11,155/- on casting of 2nd Basement Floor slab + Rs.4,11,155/- on casting of 1st Basement Floor slab + Rs.4,11,155/- on casting of Ground Floor slab + Rs.4,11,155/- on casting of 2nd Floor slab + Rs.3,48,989/- on casting of 4th Floor slab + Rs.3,98,989/- on casting of 6th Floor slab + Rs.3,98,986/- on completion of superstructure + Rs.3,98,989/- on installation of plumbing + Rs.3,98,989/- on installation of electrical + Rs.3,13,159/- on notice of possession)
2. It is the case of the Complainants that the Opposite Party vide letter dated 25.02.2010 (Annexure-4) reduced the area of commercial unit from 886 sq. ft. to 805 sq. ft., but the Opposite Party did not reduce the total cost of the commercial unit. The ALLOWED PAGE 3 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 Opposite Party always kept assuring that the Buyers Agreement would be executed soon. The Opposite Party had also concealed the information that the owner of the project land was M/s Kay Kay Designers Pvt. Ltd. and the petition had also been filed in the Hon‟ble High Court for transfer of ownership of land. Despite not even executing the Buyer‟s Agreement, the Opposite Party raised a demand of Rs.2,61,923/- in June 2010. The Complainants went to the project site in the month of August 2010, where they found that the demarcation and zoning plans of the project were not approved by Director, Town & Country Planning, Haryana, Chandigarh. The demarcation and zoning plans of the project were approved by Director, Town & Country Planning, Haryana, Chandigarh vide Memo No. ZP- 563/JD(BS)/2010/11631 dated 17.09.2010.
3. It is the further case of the Complainants that they were shocked to receive reminder letter dated 21.12.2010 wherein the Opposite Party had charged interest upon the Complainants.
The Complainants wrote letter dated 24.12.2010 to the GM of Opposite Party regarding pending concerns of signing of Buyers Agreement, reduction in shop area, revised payment plan and reason for no construction work at the site. In response, Mr. Bhatia, Authorized Signatory of Opposite Party got in touch with Complainants, who assured that the Complainants amount was lying deposited with them and the Complainants were not required to pay any interest charges and further informed that the delay was on account of getting approval from concerned authorities. Upon the assurance of the Authorized Signatory of Opposite Party, the Complainants paid the instalment of Rs.2,61,923/- to Opposite Party vide cheque bearing no. 354348 dated 11.03.2011 drawn on Punjab National Bank. But, the ALLOWED PAGE 4 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 Authorized Signatory of Opposite Party blatantly refused of having made any such promise to the Complainants about waiving of interest. Thereafter, the Buyers Agreement was executed between parties in the mid of year 2011 wherein it was highlighted that the license for the said commercial project was approved on 17.09.2010, whereas the Opposite Party always kept assuring that they had all the required licenses for the said project. As per Buyers Agreement, the Opposite Party further increased the time period of handing over of possession by three years.
4. It is the further case of the Complainants that the Opposite Party falsely claiming stage-wise construction payments from the Complainants vide letters dated 03.11.2011, 08.10.2011, 05.01.2012, 28.03.2012, 10.04.2012, 08.05.2012, 06.06.2012, without even raising construction at the site. Thereafter, the Opposite Party issued demand letter dated 17.07.2012 & 31.12.2012 stating that the said project was completed, but when the Complainants visited the site they found that construction work had just started. In demand letter dated 31.12.2012, the Opposite Party stated that the possession would be given in the 2nd quarter of 2013 and the Complainants were required to pay Rs.34,26,511/- towards principal & Rs.5,11,506/- towards interest and threatened the Complainants to cancel the booking by forfeiting the whole amount deposited by Complainants, if the payment is not made by the Complainants. On 19.02.2013, the Opposite Party cancelled the booking of the Complainants‟ unit and forfeited the deposited amount. Thereafter, the Complainants approached Mr. Bharat Kumar/Director of the Opposite Party, who assigned Capt. I.B. Singh to look into the matter and resolve the issue.
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Capt. I.B. Singh directed the Complainants to pay the
outstanding amount as per stage-wise construction status, therefore, the Complainants paid another sum of Rs.5,00,000/- to the Opposite Party vide cheque bearing no. 012161 dated 04.03.2013 drawn on Punjab National Bank. Thereafter, the Complainants issued two cheques amounting to Rs.5,00,000/- each to the Opposite Party, but the same were not deposited for clearance by Opposite Party and the Authorized Signatory of OP insisted the Complainants to pay accrued interest. Thereafter, the Opposite Party once again cancelled the booking of the unit just to pressurize the Complainant for paying the accrued interest. The Complainants made payment of Rs.5,00,000/- through RTGS to the Opposite Party, but the Opposite Party reversed the payment, stating that booking was already cancelled which could only be revoked by paying an interest of Rs.13,22,351/-.
5. It is the further case of the Complainants in June 2014 they visited the project site wherein they found that area of the shop was further reduced to 400 sq. ft. on the pretext of 50% loading in commercial unit. The Complainants filed complaint before CREDAI NCR, but the Opposite Party did not arrive at settlement, thus, the Complainants were advised to take appropriate proceedings in accordance with law for redressal of the matter. In April 2015, Opposite Party contacted Complainants and assured that Mr. Bhatia had been removed from services and further assured that possession will be given soon and further requested to pay the instalments. Thus, the Complainants made payment of Rs.23,20,000/- through RTGS to the Opposite Party. Thereafter, the Opposite Party further raised demand of Rs.52,742/- towards VAT charges for shop.
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Thus, the Complainants paid an amount of Rs.52,742/- through cheque to the Opposite Party on 21.11.2016. On 30.01.2019, the Opposite Party applied for occupancy certificate from concerned government authorities. The Opposite Party received Occupation Certificate for the said project from Office of Director, Town & Country Planning Department vide Memo No. ZP/563/SD(DK)/2019/10829 dated 30.04.2019. Thereafter, the Opposite Party again raised demand for maintenance charges. Aggrieved by the aforesaid conduct of the Opposite Party, the Complainants sent a legal notice dated 25.07.2019 to the Opposite Party, but the Opposite Party did not respond to the same.
6. Thus, the Complainants were left with no other option but to file the present complaint alleging deficiency of service and unfair trade practice on the part of the Opposite Party.
7. After the present complaint case was filed before this Commission by the Complainants, notice of the complaint was issued to the Opposite Party on 23.10.2019.
8. Upon service, the Opposite Party filed the written statement, wherein the Opposite Party contended that the Complainants are not consumers because they had booked the unit for investment purposes and not for their self-livelihood. The Complainants were never interested in the possession of the unit but had kept it as an investment for future profits. Despite repeated reminders, the Complainants failed to return the executed copy of Buyers Agreement. The Complainants were relying upon only provisional allotment letter and the purchase of commercial unit can only be authenticated after execution of Buyers Agreement. The Opposite Party promised to complete the construction within three years from the date of execution of ALLOWED PAGE 7 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 Buyers Agreement and the Complainants never executed Buyers Agreement, hence, the Complainants cannot take defence of the provisions of the Buyers Agreement. The delay in the completion of the project was due to obtaining necessary approvals from the concerned departments. The Complainants had defaulted in making timely payments as is evident from letters dated 11.12.2012, 19.02.2013 & 19.10.2013 issued by the Opposite Party to the Complainants. As per statement of accounts dated 25.11.2019, the Complainants were required to pay outstanding amount of Rs.14,14,251/-, which was pending towards the basic consideration of the said unit. Due to non-payments by the Complainants, the unit was cancelled as per the provisions of Buyers Agreement. Further, the Opposite Party stated that the concerned department had taken 8 months in providing approval of building plans, 20 months in providing clarification regarding applicability of forest laws, 74 months in providing environment clearance & 27 months in providing occupation certificate. The construction of the project had also been banned for seven days by the order dated 08.11.2016 of National Green Tribunal. After removal of embargo, period of two weeks were ordinarily required to commence the construction. Even after these consequences, the Opposite Party rapidly raised construction and filed an application for grant of occupation certificate on 23.01.2017, but the occupation certificate was received from Directorate of Town & Country, Planning, Haryana, Chandigarh on 30.04.2019 vide memo no. ZP- 563/SD(DK)2019/10823.
9. Along with written statement, the Opposite Party had also filed an application seeking permission to place on record additional documents.
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10. Vide order dated 11.01.2020 passed by our Learned
Predecessors, the application filed by the Opposite Party was dismissed with cost of Rs.2,000/-.
11. The Complainants filed rejoinder rebutting the averments made in the written statement filed by the Opposite Party.
12. The Complainants filed evidence by way of affidavit in order to prove their averments on record. The evidence by way of affidavit is duly supported by an affidavit of Ms. Promil Yogeshwar W/o Mr. Y.N. Trehan, the Complainant No. 1 herein.
13. The Opposite Party had also filed evidence by way of affidavit in order to support its averments on record. The evidence by way of affidavit is duly supported by an affidavit of Mr. Ashish Bhandari, Assistant General Manager (Legal) of the Opposite Party/company.
14. Written submissions were also filed on behalf of both the parties.
15. The Opposite Party filed an appeal before the Hon‟ble National Consumer Disputes Redressal Commission against the order dated 11.01.2020 passed by this Commission whereby the request of the Opposite Party to place on record additional documents was rejected by this Commission.
16. Vide order dated 23.02.2022 passed by Hon‟ble NCDRC, the order dated 11.01.2020 passed by this Commission was set aside and the Opposite Party was allowed to file additional documents before this Commission.
17. Thus, as per order dated 04.05.2022 passed by this Commission, the additional documents filed by the Opposite Party were taken on record and the liberty was also granted to the parties to file additional written submissions.
18. The Complainant had also filed additional written submissions vide diary no. 8196 dated 18.10.2022.
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19. We have given our considerable thought to the submissions put forth by the parties and perused the material available on record.
20. The fact that the Complainants had booked a commercial space with the Opposite Party is evident from the „Allotment Letter‟ dated 22.01.2010 (Annexure-3 of the complaint). Payment to the extent of Rs.41,58,943/- by the Complainants to the Opposite Party is evident from receipts dated 27.08.2009, 24.10.2009, 24.03.2011, 06.04.2013, 06.05.2015, 06.05.2015, 07.05.2015, 20.05.2015, 08.06.2015, 08.06.2015 & 23.11.2016 issued by the Opposite Party (which are annexed at 26, 28, 42, 88, 97, 99, 100, 101, 102, 103 & 104 of the complaint).
21. The first question for adjudication before us is "whether the Complainants are "Consumers" as defined under the Consumer Protection Act."
22. To resolve this issue, we deem it appropriate to refer to Section 2 (1) (d) of Consumer Protection Act, 1986:
"Section 2(1)(d) Consumer" means any person who- i. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or ii. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for ALLOWED PAGE 10 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
23. It is imperative to refer to the dicta of Hon‟ble National Commission passed in Anju Vinod Saraswat (Mrs.) Vs. Sahara Prime City Limited IV (2022) CPJ 206 (NC), it was held as under:
"Onus of establishing that complainant was dealing in real estate, i.e., in purchase and sale of plots/flats for commercial purpose to earn profits lies upon opposite party."
24. In the present case, the Complainant No. 1 stated that she is a senior citizen and professionally working in interior and decor works since year 2008 and her son/Complainant No. 2 was developing handicap due to grievous accident injuries met out in the year 2005, and for these reasons, both the Complainants had planned to have exclusive shop for themselves for earning their livelihood by means of self-employment. But, on the other hand, Opposite Party has merely made a statement that Complainants are not Consumers as the property in question was purchased by the Complainants for investment purposes. On perusal of the record before us; we fail to find any material which shows that the Complainants are involved in the daily business of selling and purchasing of shops to earn profits. Hence, we are of the considered view that the said commercial ALLOWED PAGE 11 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 unit purchased by the Complainants was only for earning their livelihood and to secure their future. Hence, Complainants are „Consumers‟ as defined under the Section 2(1)(d) of the Consumer Protection Act, 1986. Consequently, the objection raised on behalf of the Opposite Party is answered in negative.
25. The second question for adjudication before us is "whether the Opposite Party is deficient in providing its services to the Complainants or not."
26. As per Annexure-1 (colly) i.e. Booking Form dated 25.08.2009, the Complainants had booked the commercial space of 886 sq. ft. @ Rs.5780/- per sq. ft. with the Opposite Party.
27. As per Annexure-3 i.e. Allotment Letter dated 22.01.2010, the Opposite Party allotted a commercial unit bearing no. G-08 admeasuring of 805 sq. ft. to the Complainants at the total sale consideration price of Rs.51,82,346/-.
28. The Complainants have stated that at the time of issuing allotment, the Opposite Party reduced the area of the commercial unit from 886 sq. ft. to 805 sq. ft., but the cost of the unit was not reduced and the Opposite Party without executing Buyers Agreement, raised demand letters dated 20.11.2010 & 21.12.2010. And for this reason, the Complainants wrote letter dated 24.12.2010 (Annexure-7) to the Complainants wherein they requested the Opposite Party to execute the Buyers Agreement immediately and to issue revised payment plan as per the reduced area of the unit and to explain the reason for not carrying out construction at the site. Thereafter, the Complainants further sent e-mails dated 05.07.2011 & 18.07.2011 for the same purpose.
29. On the other hand, the Opposite Party has stated that the total cost of the unit mentioned in the Allotment Letter was revised ALLOWED PAGE 12 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 and was calculated according to 805 sq. ft. The Opposite Party further stated that the Complainants had failed to return the signed copy of the Buyers Agreement, which was sent to the Complainants along with letter dated 19.07.2011.
30. It is pertinent to mention here that as per Payment Plan dated 22.01.2010 (at page no. 30 of the complaint) issued along with the Allotment Letter, the total sale price of the commercial unit was Rs.51,82,346/-. It is noteworthy that it has been specifically mentioned in the payment plan that the total cost of the commercial unit was calculated as follows: (basic price @ Rs.5780.35 per sq. ft., IDC @ Rs.37.65 per sq. ft., EDC @ Rs.271.25 per sq. ft., IBMS @ Rs.100 per sq. ft., Car Parking for Rs.2,00,000/-).
Calculation: i) Basic price Rs.5780.35 × 805 = Rs.46,53,181.75
ii) IDC Rs.37.65 × 805 = Rs.30308.25
iii) EDC Rs.271.25 × 805 = Rs.218356.25
iv) IBMS Rs.100 × 805 = Rs.80,500
v) Car Parking = Rs.2,00,000 Total = Rs.51,82,346.25
31. In view of the foregoing and as discussed above, we are of the considered view that the total price of the commercial unit i.e. Rs.51,82,346/- mentioned in the Allotment Letter & Payment Plan dated 22.01.2010 was according to 805 sq. ft. area and not to 886 sq. ft. area. Thus, the Opposite Party is not liable to issue any revised payment plan. Furthermore, the Complainants are also not liable to pay for any other additional charges for the commercial unit, as the total price of the commercial unit i.e. Rs.51,82,346/- is inclusive of all other allied charges.
32. The Opposite Party contended that the Complainants failed to make the payments prescribed as per the payment plan opted, ALLOWED PAGE 13 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 despite service of various reminder letters dated 11.12.2012, 19.02.2013 & 19.10.2013.
33. On perusal of the record, we fail to find any documentary proof, cogent evidence or any photographs regarding the progress of the construction as per the payment plan and demand letters raised by the Opposite Party. Further, we fail to find any executed Buyer Agreement, in accordance to which the delayed interest has been charged by the Opposite Party from time to time. However, we find only Allotment Letter dated 22.01.2010, which has been issued by the Opposite Party. Therefore, it is clear that Buyer Agreement has not been executed between the parties till date.
34. At this stage, we deem it appropriate to refer to Consumer Case Nos. 1394, 1395, 1396, 1397, 1398, 1399, 1400, 1401 and 1402 of 2015 titled as Vikram Jain and Ors. Vs. AAA Estate Pvt. Ltd. decided on 07.11.2017, wherein, the Hon‟ble National Commission has held as under:
"......So far as the Complaint Nos. 1401 and 1402 of 2015 are concerned, wherein there is no builder buyer agreement signed by the parties and only allotment letters are there, I am of the opinion that if even after taking huge amount of the consideration, the builder buyer agreement is not signed, this also speaks of the deficiency on the part of the builder. Even in the case referred to by the learned counsel for the OP which is Hansa V. Gandhi (supra), the Supreme Court has agreed with the order of the High Court for refund of the amount with interest."
35. From the aforesaid dicta of the Hon‟ble National Commission, it flows that it is the duty of the Opposite Party to execute the Buyer Agreement and in the present case, the Buyer Agreement was not executed between the parties. Therefore, the interest on ALLOWED PAGE 14 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 delayed payment relying upon the basis of an unexecuted agreement is not justified.
36. In the light of the above discussion, the contention raised by the Opposite Party on the basis of unexecuted agreement is not maintainable.
37. In the present case, we find that till date the possession of the commercial unit in question has not delivered by the Opposite Party even after receiving the amount to the extent of Rs.41,58,943/- (i.e. 80% amount of the unit) from the Complainants.
38. However, the Opposite Party stated that the delay in handing over the possession was due to the delay in receiving approvals from the various concerned authorities and was due to the ban of the construction work for seven days by the National Green Tribunal vide its order dated 08.11.2016.
39. On perusal of the record, we find that the Opposite Party applied for grant of occupation certificate on 23.01.2017 and the occupation certificate was received to the Opposite Party on 30.04.2019 from the Directorate of Town & Country, Planning, Haryana, Chandigarh which thereby means that the construction of the project was completed by the Opposite Party in end of the year 2016. Hence, we are of the considered view that the said grounds are only an excuse to justify the inordinate delay caused by the Opposite Party due to its own default.
40. On perusal of Allotment Letter dated 22.01.2010, we do not find any stipulated time for handing over possession of the commercial unit in question. On this issue, we deem it appropriate to refer to First Appeal No. 348 of 2016 titled "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and ALLOWED PAGE 15 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024 Ors.", wherein the Hon‟ble National Commission 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."
41. On perusal of above settled law, it is clear that if the possession of the unit is delivered beyond 42 months or 48 months, then there is deficiency of service on the part of builder. Thus, the Opposite Party was duty bound to hand over the possession of the said commercial unit within 48 months i.e. before 22.01.2014, as the allotment letter was issued to the Complainants on 22.01.2010. But, the possession of the commercial unit in question has still not been delivered by the Opposite Party even after elapse of more than 13 years from the date of allotment. Therefore, the deficiency on the part of the Opposite Party stands proved, hence, the Opposite Party is guilty of harassing the innocent consumers by charging unjustified interest even after the delay was on its part.
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42. In view of the foregoing, the complaint filed by the Complainants is allowed with the following directions:
(i) The Complainants shall be liable to pay the outstanding amount of Rs.10,23,403/-, (Rs.51,82,346 - Rs.41,58,943) (as discussed above) to the Opposite Party within two months from the date of receipt of this judgment.
(ii) On the receipt of the aforesaid amount, the physical and vacant possession of commercial unit bearing no. G-08 admeasuring of 805 sq. ft. in the project "Spaze Business Park" be handed over to the Complainants by the Opposite Party without enforcing any additional demand.
(iii) The Opposite Party shall also be liable to pay for the delay which had occurred in handing over possession @ Rs.5 per sq. ft. per month from 22.01.2014 (the date on which the possession of the said flat was to be given to the Complainants) till the actual date of handing over possession of the said commercial unit to the Complainants.
(iv) In addition to this, the Opposite Party is also liable to compensate the Complainants for the mental agony and harassment to the Complainants. Accordingly, we direct the Opposite Party to pay a sum of Rs.1,50,000/- to the Complainants.
(v) The litigation cost to the extent of Rs.50,000/-.
43. Accordingly, the complaint filed by the Complainants is hereby allowed.
44. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
ALLOWED PAGE 17 OF 18 C/934/2019 MS. PROMIL YOGESHWAR & ANR. VS. M/S SPAZE TOWERS PRIVATE LTD. D.O.D.: 02.04.2024
45. 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.
46. File be consigned to record room along with a copy of this Judgment.
(RAJAN SHARMA) MEMBER (JUDICIAL) (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On: 02.04.2024 ALLOWED PAGE 18 OF 18