State Consumer Disputes Redressal Commission
Sh. Mahesh Yadav vs M/S M2K Infrastructure Pvt. Ltd. on 28 February, 2024
C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024
IN DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 16.04.2018
Date of hearing: 08.11.2023
Date of Decision: 28.02.2024
COMPLAINT CASE NO.- 887/2018
IN THE MATTER OF
MR. MAHESH YADAV,
S/O MUNSHI RAM,
R/O VILLAGE CHANDU,
P.O. BUDHERA,
DISTRICT GURGOAN, HARYANA.
(Through: Mr. Ashwani Kr. Sharma, Advocate)
...Complainant
VERSUS
M/S M2K INFRASTRUCTURE PVT. LTD.
F-13/29, HARSHA BHAWAN
CONNAUGHT PLACE
NEW DELHI
(THROUGH ITS MANAGING DIRECTOR
PRINCIPAL OFFICER.
(Through: Mr. Kushal Budhia, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 14
C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Mahesh Yadav, Complainant in person along with Mr.
Ashwani Kr. Sharma, Counsel for the Complainant.
Mr. Kaushal Budhia, Counsel for the OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been returned by the District Commission on the ground of pecuniary jurisdiction vide order dated 16.04.2018, filed by the Complainant before this Commission alleging deficiency in service and unfair trade practices by the Opposite party and has prayed the following:
"i. Direct the Opposite Party to refund the deposit amount of Rs. 10,59,094/- along with interest @ 24% per annum from the date of receipt till its realization to the Complainant.
ii. Award Rs. 2,00,000/- as damages/compensation to the Complainant for providing deficient services and for causing mental agony, pains and sufferings caused to the complainant.
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iii. Award a cost of Rs. 11,000/- towards litigation expenses in favour of the Complainant and against the Opposite Party.
iv. Pass any further order(s) which this Hon'ble Forum deem fit and proper in the facts and circumstances of the case."
2. Brief facts necessary for the adjudication of the present complaint are that Complainant along with his father (Joint Allottee) got registered for allotment of an apartment in 'M2K Country Heights Project' of the Opposite Party at Dharuhera, Haryana. After depositing the booking amount, the Complainant was allotted a provisional apartment bearing No E-8 in the said project. Thereafter, as per demands of the Opposite Party, the Complainant deposited a total sum of Rs. 10,59,094/- for purchase of the above said allotted apartment. Even after repeated requests to the Opposite Party either to hand-over the allotted apartment or to cancel the booking the apartment and refund the whole paid amount, the Opposite Party continued to linger on the matter. Thereafter, the Complainant came to know that the allotted apartment is not existing anywhere and there is no development or construction on the project. Seeing the conduct and malafide intentions of the Opposite Party, the Complainant sent a legal notice dated 04.04.2009 to the Opposite Party for refund of the whole amount along with interest @ 24% p.a. but the Opposite Party failed to give any reply to the Notice. Thus, left with no other option, ALLOWED PAGE 3 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 the Complainant approach this commission alleging deficiency on the part of the Opposite Party.
3. The Opposite Party has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party submitted that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986 and there is no cause of action in favour of the complainant to file the present complaint. The counsel for the Opposite Party further submitted that the jurisdiction of this commission is barred in view of the fact that the present complaint is in fact a suit for recovery on which court fees is payable and would lie in a Civil Court and as the matter involves complicated question of facts and law which is needed to be proved by detailed oral and documentary evidences.
4. The Counsel for the Opposite Party further submitted that the present complaint is an abuse and misuse of Law and the Complainant is trying to take undue advantage of their own wrong/defaults committed by them by not payment the due instalments. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint 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.
ALLOWED PAGE 4 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024
6. We have perused the material available on record and heard the counsel for the parties.
7. The first question for consideration is whether the present complaint is barred by limitation as per the consumer protection act, 1986?
8. The Opposite Party has contended that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986, which provides 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."
9. A perusal of the above statutory provision of law reflects that the complaint shall be filed before the State Commission within two years from the date on which the cause of action has arisen. It is clear from the record that till date neither possession of the said apartment has been delivered nor the amount has been refunded to the Complainant ALLOWED PAGE 5 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 by the Opposite party. We further deem it 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 is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
10. Relying on the above settled law, it is clear that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action in favour of the buyer and therefore, till the time possession is not delivered to the Complainant, he is within right to file the present complaint before this commission. Consequently, the present complaint is not barred by limitation as per Section 24A of the Act.
11. The next question for consideration is whether whether the civil court has jurisdiction - jurisdiction of consumer commmission barred?
12. The Opposite Party has also contended that the jurisdiction of this Commission would be barred for the reason that the present complaint, is in fact, a suit for recovery on which court fees is payable and would lie in a Civil Court and the Complainant in order to save the payment of court fees has filed the complaint under the Consumer Protection Act, 1986.
ALLOWED PAGE 6 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024
13. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are effected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
14. The Consumer Protection Act, 1986 defines a Consumer as follows:
"(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 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 ALLOWED PAGE 7 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.-- For the purposes 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;"
15. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2) (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;"
16. Returning to the facts of the present complaint, perusal of the record shows that the Complainant entered into an agreement to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honour the terms of the agreement, aggrieved by which, the Complainant has approached this commission. Hence, the Complainant is entitled to file the present complaint before this commission since the Complainant is aggrieved by the deficient services of the Opposite Party i.e. the failure of the Opposite Party to handover the possession within a reasonable time period and it is only ALLOWED PAGE 8 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 due to this reason, that the Complainant has approached this Commission, which this Commission is authorized to adjudicate.
17. Our view is further fortified by 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.
18. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which cannot be settled on the basis of the pleadings filed on behalf of the contesting parties.
19. Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the Opposite Party.
20. The next question for consideration is whether the Opposite Party deficient in providing its services to the Complainant.
ALLOWED PAGE 9 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024
21. The Opposite Party contended that the Complainant failed to make the payments prescribed as per the construction linked payment plan opted, despite service of various reminder letter dated 25.11.2008, 14.01.2009, 12.02.2009, 06.04.2009, 13.08.2009, 05.04.2010, 18.04.2011, 26.04.2011, 27.06.2011, 27.07.2011, 18.08.2011 and 27.09.2011. Therefore, there is no deficiency on the part of the Opposite Party as the Complainant failed its contractual obligation to make payment timely.
22. 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 ALLOWED PAGE 10 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 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.
23. At this stage, we deem it appropriate to refer to Article 5(a) of the Apartment Buyer Agreement dated 30.05.2009 entered into by both contesting parties. It reflects that the Opposite Party was bound to complete the construction of the said apartment within 36 months from the date of commencement of construction of the particular tower in which the apartment is located. However, as per the first ALLOWED PAGE 11 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 payment receipt dated 11.12.2006, issued by the Opposite Party in favor of the Complainant, it clearly shows that the first payment in regard to the said apartment in question was made in the year 2006. Further, it is not clear from the record when the construction of the particular Tower E commenced, but even if we take the date of Bhoomi Pujan i.e., 11.12.2007, against which the Complainant paid an amount of Rs. 2,19,469/- then the Opposite Party was to complete the construction of the said apartment by 11.06.2011. However, by that time, the construction was running at Snell pace and the Opposite Party was sending demand letters as per the slow pace of the construction of the said project. Therefore, it is clear that the Opposite Party was lagging much behind the schedule for completing the construction of the said apartment. Moreover, the Complainant paid a huge sum of Rs. 10,59,094/- by 27.03.2009 towards the said apartment.
24. More so, it is admitted by the Opposite Party in para 11 of the written statement that it had received the occupation certificate on 13.08.2015 and 22.03.2016 and accordingly handed over the possession to the buyer. Furthermore, it has been well settled that the Complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard-earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
25. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite ALLOWED PAGE 12 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 Party had given false assurance to the complainant with respect to the time for delivery of possession of the apartment and had kept the hard-earned money of the Complainant for years.
26. 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.10,59,094/-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 28.02.2024 (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 28.04.2024;
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 28.04.2024, 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.
27. 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 ALLOWED PAGE 13 OF 14 C. NO. 887/2018 MR. MAHESH YADAV VS M2K INFRASTRUCTURE PVT. LTD D.O.D.: 28.02.2024 B. The litigation cost to the extent of Rs. 50,000/-.
28. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
29. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
30. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced on:
28.02.2024 LR-ZA ALLOWED PAGE 14 OF 14