State Consumer Disputes Redressal Commission
Dr. Lokesh C. Rohela vs The C.M.D. Of M/S Imperia Structures ... on 9 August, 2023
C.C 142/2014 D.O.D.: 09.08.2023
DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Admission: 30.04.2014
Date of hearing: 10.03.2023
Date of Decision: 09.08.2023
COMPLAINT CASE NO.- 142/2014
IN THE MATTER OF
DR. LOKESH C. ROHELA,
S/O MR. M.R. ROHELA,
R/O 491, VIKAS KUNJ, VIKASPURI,
NEW DELHI-110018.
(Through: Mr. Nitin Saxena, Advocate)
...Complainant
VERSUS
M/S IMPERIA STRUCTURE LTD.,
THE CHAIRMAN-CUM-MANAGING DIRECTOR,
A-25, MOHAN COOPERATIVE INDUSTRIAL ESTATE,
NEW DELHI-110044.
(Through: Athena Legal)
...Opposite Party
ALLOWED PAGE 1 OF 8
C.C 142/2014 D.O.D.: 09.08.2023
DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Complainant in Person along with Mr. Nitin Saxena,
Adv.
Mr. Umang Verma, Counsel for the Opposite Party.
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 Opposite Parties and has prayed the following reliefs:
a. "Diurect the opposite party to refund the said amount of Rs. 22,46,841/- to the complainant alongwith interest @ 24% p.a. as well as Rs.3,00,000/- towards the compensation amount in respect of flat No. 50, Tower F in project "Esfera" situated at Sector-37-C, Gurgaon, Haryana. b. The cost of litigation of Rs. 50,000/- be also Awarded in favour of the complainant and against the respondent/Opposite party.
c. Pass any other order or relief in favour of the complainant and against the respondent/O.P., which this Hon'ble court/Commission deems fit and proper."
2. The brief facts necessary for the adjudication of the present complaint are that in the year 2012, the Complainant booked a flat bearing no. 501 in the project 'The Esfera' of the Opposite Party situated at Sector 37-C, Gurgaon, Haryana. Subsequently, vide ALLOWED PAGE 2 OF 8 C.C 142/2014 D.O.D.: 09.08.2023 DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
Builder Buyer Agreement dated 24.07.2013, the Opposite Party allotted Flat no. 501, in the said project, to the Complainant.
3. The Complainant made payments as per the demands of the Opposite Party, believing in good faith that the construction of the project would be completed within the assured time period. However, the construction of the project significantly lagged behind the assured schedule.
4. The Complainant over the time had paid a sum of Rs. 22,46,841/-
to the Opposite Party as and when demanded by it. However, vide letter dated 16.10.2013, the Opposite Party cancelled the booking of the flat of the Complainant. More so, the Opposite Party refunded the amount of booking of Rs.10,92,996/- to the Complainant through cheque which was returned to the Opposite Party by the Complainant. The Complainant requested the Opposite Party to cancel the aforesaid cancellation letter and handover the possession of the said flat vide legal notice dated 16.10.2013. Aggrieved, by this alleging deficiency in service on the part of the Opposite Party, the Complainant approached this Commission.
5. The Opposite Party has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that there is no cause of action in favour of the Complainant to file the present complaint. He further submitted that the Complainant defaulted in making timely payments as per the payment schedule. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.
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DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
6. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. The Complainant has duly filed their Evidence by way of Affidavit in order to prove their averments on record. Written Argument of both the parties also 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 a Flat with the Opposite Parties is evident from the record available before us. Payment to the extent of Rs. 22,46,841/- by the Complainant for the said flat is not disputed by the parties.
9. The first issue to be adjudicated is whether the Complainant has cause of action to approach this commission. 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."
10. 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 ALLOWED PAGE 4 OF 8 C.C 142/2014 D.O.D.: 09.08.2023 DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
the date on which cause of action has arisen. In the present case neither possession of the said flat in question has been delivered, nor the amount deposited by the Complainant has been refunded till date. 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."
11. Applying the above settled law, it is clear that failure to deliver possession being a continuous wrong which constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to the Complainant. The Complainant is within their right to file the present complaint before this commission.
12. Whether the Opposite Party is deficient in providing its services to the Complainant.
13. On perusal of "Clause 1.2" in the Apartment Buyer Agreement dated 24.07.2013, we find that the construction of the said unit was to be handed over to the Complainant upto the expiry of 42 months from 21.10.2012 but the Opposite Party failed to complete the construction of the abovementioned project within the stipulated period.
14. We deem it appropriate to refer to 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:
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DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
"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 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."
15. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the Complainant with ALLOWED PAGE 6 OF 8 C.C 142/2014 D.O.D.: 09.08.2023 DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
respect to the time for handing over the possession of the said flat and kept the hard-earned money of the Complainant.
16. The Opposite Party further contended that there was a default in making payments by the Complainant as per the opted payment plan. However, upon perusal of the records, it is evident that the Complainant has already paid a significant amount of Rs.22,46,841/- towards the total basic price of the flat. Despite this, the construction of the said flat has not been completed till date. However, it is noted that the Complainant booked the said flat in the year 2012, and the Opposite Party was bound to hand over possession of the floor within 42 months. Hence, the Complainant cannot be expected to wait indefinitely for the possession of the flat. Consequently, the contention raised by the Opposite Party lacks merit and is dismissed.
17. 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. 22,46,841/- along with interest as per the following arrangement:
A. A simple interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 09.08.2023(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 09.10.2023; 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 09.10.2023, the entire ALLOWED PAGE 7 OF 8 C.C 142/2014 D.O.D.: 09.08.2023 DR. LOKESH C. ROHELA VS. IMPERIA STRUCTURES LTD.
amount is to be refunded along with a simple 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.
18. 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. 2,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
19. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
20. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
21. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
09.08.2023 ALLOWED PAGE 8 OF 8