National Consumer Disputes Redressal
Pranav Mittal vs M/S. Dynamic Infradevelopers (P) Ltd. & ... on 27 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 115 OF 2017 (Against the Order dated 07/09/2016 in Complaint No. 827/2016 of the State Commission Delhi) WITH IA/1348/2017 1. PRANAV MITTAL S/O VINAY MITTAL, R/O 62 C, NEHRU NAGAR, AGRA-282 002, UTTAR PRADESH ...........Appellant(s) Versus 1. M/S. DYNAMIC INFRADEVELOPERS (P) LTD. & 4 ORS. REGISTERED OFFICE AT: 30/27, EAST PATEL NAGAR, 1ST FLOOR, NEW DELHI-110 008 2. MR. SUDHIR GULATI DIRECTOR, DYNAMIC INFRADEVELOPERS (P)LTD, A-42, SARASAWATI GARDEN, KIRTI NAGAR, NEW DELHI-110 015 3. MR. MANISH AGARWAL DIRECTOR, DYNAMIC INFRADEVELOPERS (P) LTD E-62, SECTOR-40, NOIDA-201301 UTTAR PRADESH 4. MR. VISHNU PARASAD AGARWAL DIRECTOR, DYNAMIC INFRADEVELOPERS (P) LTD, WZ-405, JANAK PARK, HARI NAGAR, NEW DELHI 110006 5. MR. RAJEEV AGRAWAL E-67, KIRTI NAGAR, NEW DELHI-110 015 ...........Respondent(s) FIRST APPEAL NO. 187 OF 2017 (Against the Order dated 07/09/2016 in Complaint No. 828/2016 of the State Commission Delhi) WITH
IA/1348/2017 1. BELA MITTAL W/O. LATE SH. MUKESH MITTAL, R/O. 62-B, NEHRU NAGAR, AGRA-282002 ...........Appellant(s) Versus 1. M/S. DYNAMIC INFRADEVELOPERS (P) LTD. & 4 ORS. REGISTERED OFFICE AT: 30/27, EAST PATEL NAGAR, 1ST FLOOR, NEW DELHI-110008 2. MR. SUDHIR GULATI DIRECTOR, DYNAMIC INFRADEVELOPERS (P) LTD., E-62, SECTOR-40, NOIDA-201301 UTTAR PRADESH 3. MANISH AGARWAL DIRECTOR, DYNAMIC INFRADEVELOPERS (P). LTD., E-62, SECTOR-40, NOIDA-201301 UTTAR PRADESH 4. MR. VISHNU PARASAD AGARWAL DIRECTOR, DYNAMIC INFRADEVELOPERS (P). LTD., E-62, SECTOR-40, NOIDA-201301 UTTAR PRADESH 5. RAJEEV AGRAWAL E-67, KIRTI NAGAR, NEW DELHI-1100015 ...........Respondent(s) FIRST APPEAL NO. 188 OF 2017 (Against the Order dated 07/09/2016 in Complaint No. 829/2016 of the State Commission Delhi) WITH IA/1348/2017 1. ANIL AGARWAL S/O. SH. NAVAL KISHORE, R/O. 142, JAIPUR HOUSE, AGRA-282002 ...........Appellant(s) Versus 1. M/S. DYNAMIC INFRADEVELOPERS (P) LTD. & 4 ORS. REGD. OFFICE AT: 30/27, EAST PATEL NAGAR, 1ST FLOOR, NEW DELHI-110008 2. MR. SUDHIR GULATI DIRECTOR, DYNAMIC INFRADEVELOPERS (P) LTD., A-42, SARASWATI GARDEN, KIRTI NAGAR, NEW DELHI-110015 3. MR. MANISH AGARWAL DIRECTOR, DYNAMIC INFRADEVELOPERS (P) LTD., A-42, SARASWATI GARDEN, KIRTI NAGAR, NEW DELHI-110015 4. MR. VISHNU PARASAD AGARWAL, DIRECTOR DIRECTOR, DYNAMIC INFRADEVELOPERS (P) LTD., A-42, SARASWATI GARDEN, KIRTI NAGAR, NEW DELHI-110015 5. MR. RAJEEV AGRAWAL E-67, KIRTI NAGAR, NEW DELHI-110015 ...........Respondent(s) BEFORE: HON'BLE MRS. M. SHREESHA,PRESIDING MEMBER For the Appellant : MR. HIMANSHU GUPTA For the Respondent :
Dated : 27 Feb 2017 ORDER PER MRS. M. SHREESHA, PRESIDING MEMBER
For reasons cited in the applications seeking condonation of delay, the delay of 60 days in FA/115/2017, 110 days in FA/187/2017 and FA/188/2017 is hereby condoned.
2. Aggrieved by the orders in Complaint Nos. 827 of 2016, 828 of 2016 and 829 of 2016 passed by the State Consumer Disputes Redressal Commission, Delhi (in short the State Commission), the Complainants preferred these Appeals under Section 19 of the Consumer Protection Act,1986 (in short the Act). Since all the Appeals deal with common facts, they are being disposed of by this common order.
3. For the sake of convenience, First Appeal No. 115 of 2017 is being taken as the lead case.
4. The brief facts stated in the Complaint are that the Complainants have purchased three apartments from the Opposite Parties namely, G-230/B. S-230/B AND S-227/B at Blosk-B, "Tulsi Residency" at Parimma Marg, Goverdhan, Tehsil-Gorba, District Mathura vide three individual sale deeds, each dated 27.05.2014, after payment of the full consideration amount of Rs.16,05,000/- (Rs.5,35,000/- each). It was averred that prior to the purchase of the subject property by the Complainant, a meeting was held between the parties in April 2014, wherein the Opposite Parties had informed the Complainant that certain works namely, flooring, kitchen furnishing, toilets, woodwork, wall paint, doors etc., remain incomplete and he was assured that the aforesaid incomplete works along with the internal infrastructure namely, lighting, sewerage, electric connection etc., would be completed within a period of 12 to 14 months. The same was acknowledged by the Opposite Parties vide letter dated 05.05.2014 inter alia on the basis of the assurance given by the Opposite Parties regarding completion of work. It is pleaded that the Complainant purchased the subject property on 27.05.2014, subsequently, when the Complainant visited the said property in July, 2014, he was surprised to observe that the balance work remained incomplete, and the same was brought to the notice of the Opposite Parties vide letter dated 28.07.2015, for which there was no response between July, 2015 and December, 2015. Several requests and reminders were made by the Complainant to the Opposite Parties, but there was no response. Thereafter a legal notice dated 28.02.2016 demanding completion of works and handing over of possession of the subject property was issued. Despite receipt of legal notice, it was pleaded that the Opposite Parties failed to complete the works.
5. Hence the Complainants approached the State commission seeking the following reliefs:-
" i) The Opposite Parties jointly and severally be directed to pay Rs. 24,67,848/-(interest added for the period between May 2014 to May 2016) to the Complainant alongwith interest @ 24% per annum until payment to the Complainant;
ii) In the alternative, the Opposite Parties jointly and severally be directed to pay to the Complainant interest @ 24% per annum on the total consideration amount of Rs.16,05,000/- from 01 June 2014 until completion of all balance works including internal infrastructure work such as roads, drainage system ,etc.(such that the subject property is ready to move in);
iii) Award Rs. 2 lacs as the cost of litigation in favour of the Complainant as against the Opposite Parties."
6. The State Commission vide order dated 07.09.2016 dismissed the Complainant in limine observing as follows:-
"Once Sale deed is executed and possession is taken over person booking the same does not remain consumer. This is so asper the decision of National Commission in Smita Roy Vs. Excel Construction & another II (2012) CPT 204. The remedy of the complainant may lie in civil court for breach of agreement.
2. The second hurdle in the way of complainant is that he booked three flats. Apparently the purpose can ne to sell them later on when the prices increased. Thus it was with a view to earn the profit in which event booking would become for commercial purpose. In this regard reliance is placed on decision of National Commission in Saavi Gupta Vs. Omaxe CC 208/12 decided on 1.10.12, Ved Kumari vs. Omaxe CC143/13 decided on 5.3.2014 & Mohan Sehgal Vs. Omaxe CC 270/13 decided on 20.03.12.
3. The third hurdle in the case of the complainant is that he has filed one complaint for three flats to create pecuniary jurisdiction in this Commission. Had he filed three separate complaints for Rs.5,35,000/- each the jurisdiction would have vested with district forum. The complainant cannot be allowed to defeat the legislative scheme by creating hierarchy of jurisdiction.
7. Dissatisfied by the said order the Complainants preferred three Appeals which are being disposed of by this common order.
8. The Learned Counsel for the Complainants submitted as follows:-
Even if sale deed is executed and possession was not handed over after the completion of amenities, the purchaser is a Consumer, and that the remedy of the Complainant does not lie in a civil suit for breach of agreement.
The Complainant had booked three flats, but not with an intention to earn profits or trade in real estate and hence, the booking cannot be termed as commercial purpose.
The Complainant had filed one Complaint for three flats as the agreement dated 05.05.2014, between the parties, required the completion of all balance works pertaining to all the flats and thereafter delivery of possession within 12 to 14 months from the date of execution of the sale deeds. Learned Counsel submitted that service agreement was a composite agreement for all the flats and hence, a common complaint was filed for all the three flats.
9. Regarding the first finding of the State Commission that the Complainants are not Consumers as the sale deed has already been executed, an extract of the letter dated 05.05.2014 is necessary for better understanding of the exact cause of action. The same is reproduced hereunder:-
Date: 05.05.2014 Mr. Pranav Mittal Dear Client Sub:- Specification of Project Tulsi Residency This is reference to flat no. G-230/B, S-230/B, S227/B Tulsi Residency, we inform you that possession will be given 12-14 months from the date of the Sale Deed.
Flat Size: 425 Sq. Ft. (Studio Apartment) Following are the specification and amenities provided in the flat for the project.
FLOORING: Vitrified tiles.
KITCHEN: 2ft. Ceramic tiles in flooring and 7 ft. height Glazed ceramic tiles on walls with standard fittings.
WOODWORK: Door and window frames in power coated alluminium with 4mm thick glass.
WALLS:- Internal: POP punning & acrylic paint. External: Weather proof paint.
DOORS:- External: Door with hard wood chaukhat, Internal: Flush door with hard wood chaukhat.
PAINTS: Internal Acrylic Paints and External weather proof paint.
STUDIO APARTMENT FURNISHING: Split A.C. in Bed Room, LCD T.V., 2 Seater Sofa and Double Bed, Gas Chimny, Two Geyser, cloth Pressing Iron with Pad, Floor Matt, Micro-Wave, Fridge, Writing Desk, LCD Cabinet, Crockery Cabinet, Inverter Line, Fan in Bad- Room, Gas Stove, 2 Chair& Table for Balcony, Ward robe and Kitchen with Trolleys complete and cooking Range.
EXTRA AMINITIES: Alluminium Ladder, Towels, Hangers, Table Lamp & Safe.
10. It is observed from the aforementioned letter dated 05.05.2014, that the possession would be given within 12 to 14 months from the date of the sale deed. Sale deeds were executed on 27.05.2014. It is the main case of the Complainants that the premises could not be occupied since the very basic amenities were not complete. There is a specific pleading in para 10 of the Complaint that the Complainant was constrained to issue a legal notice, dated 28.02.2016, demanding completion of the works and handing over of the possession of the subject property within 30 days of receipt of the legal notice. The State Commission has not addressed itself to this aspect. The finding of the State Commission that once the sale deed is executed and possession is offered, the purchaser ceases to be a "Consumer" is contrary to what has been laid down by this commission in Yash Pal Marwaha versus Pushpa Builders Ltd. & Anr., II (2006) CPJ 259(NC).
11. The Hon'ble Supreme Court in Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) held as follows:
" 3. The learned counsel the petitioner made efforts to convince us that the complaint filed by the respondent in 2009 was hopelessly time barred because the cause of action accrued to the respondent in 1992 and the Consumer forums committed serious error by ordaining execution of the sale deed and at the same time relieving the respondent of his obligation to pay interest for delayed payment of the balance price of the plot but we have not at all felt impressed.
4. In our view, the complainant filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District forum as barred by limitation because he had recurring cause for filing a complaint in the matter of non-delivery of possession of the plot."
12. Hence, keeping in view the aforementioned judgment and facts of the case that there is a specific prayer for delivery of possession, it is held that there is continuing cause of action and the Complaint cannot be said to be barred by limitation.
13. Now, I address myself to the second finding of the State Commission, that since the Complainant has purchased three flats it can be construed that it is for earning profit and therefore, purchased for commercial purpose. Commercial purpose is a mixed question to be decided by the facts of each case, it is not the "value of goods" that matters, but the purpose for which the goods bought, is what is to be considered. This Commission in Kavit Ahuja Versus Shipra Estate Ltd. & Jaikrishna Estate Developers Pvt. Ltd. & Ors., I (2016) CPJ 31 (NC) has laid down that merely because the Complainant has booked three flats, it cannot be said that it is for commercial purpose, and that the Complainant falls within the definition of "Consumer" within Section 2(1)(d) of the Act. The purchase can be said to be for a commercial purpose only when it is shown that the purchaser is engaged in the business of purchasing and selling houses/plots on a regular basis, solely with the view to make profit by sale of such houses. Without expressing final opinion, I am of the prima facie view that unless it is shown by bringing on record, some cogent material that a purchaser is engaged in the purchase and sale of flats/ houses on regular basis with a view to make profit by such sale, a mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for "commercial purpose". It is manifest from the order that after the pleadings and evidence has been brought on record, the fora would decide the question on its jurisdiction to entertain Complaints, before proceeding to deal with the rival stands of the claims made in the Complaints. This Commission also dealt with this aspect of purchase of more than one flat, whether it can be construed as commercial purpose or not in another decision dated 21.07.2015 in First Appeal No. 531 of 2015 between Sai Everest Developers & Anr. Vs. Harbans Singh Kohli & Ors. The aforementioned law laid down by this commission establishes that onus to prove whether the purchase of houses is for commercial purpose or not shifts to the Opposite Party and in the instant case the State Commission has dismissed the Complaints in limine.
14. The third finding of the State Commission was that the Complainant has clubbed three independent sale deeds to attract the pecuniary jurisdiction of the State Commission and that he ought to have filed three separate Complaints for each property.
15. In the view of the matter, I do not find any illegality in the last finding of the State Commission that the Complainant ought to have filed three separate Complaints, as three independent sale deeds were executed where the value of goods and services and compensation claimed in each Complaint does not attract the jurisdiction vested with the State Commission. It is needless to add that it would be open to the Complainants to file the Complaints before an appropriate Forum, if so advised, along with application for condonation of delay. In that event, their application for condonation of delay shall be considered keeping in view the observations of the Hon'ble Supreme Court in Laxmi Engineering works Vs. P.S.G. Industrial Institute, 1995 SCC(3) 583.
16. In the result, these appeals are disposed of to the extent indicated above.
...................... M. SHREESHA PRESIDING MEMBER