State Consumer Disputes Redressal Commission
Kulpreet Kaur vs Sunshine Infrawell Pvt. Ltd. on 11 October, 2023
C.C 1256/2018 D.O.D.: 11.10.2023
MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 25.09.2018
Date of hearing: 03.05.2023
Date of Decision: 11.10.2023
COMPLAINT CASE NO.- 1256/2018
IN THE MATTER OF
MS. KULPREET KAUR,
A 8 G., DELHI POLICE APARTMENTS,
MAYUR VIHAR PHASE-I,
DELHI - 110091.
(Through: Saikrishna & Associates)
...Complainant
VERSUS
SUNSHINE INFRAWELL PVT. LTD.
SITE OFFICE,
GH-05 B, SECTOR-78,
NOIDA, UTTAR PRADESH - 201301.
ALSO, AT:
BUSINESS PARK SITE OFFICE -II,
PLOT NO.-5 A, SECTOR 94,
NOIDA, UTTAR PRADESH - 201301.
REGISTERED OFFICE,
KH. NO. 403/268/2,
H. NO. C-239, NEW ASHOK NAGAR,
NEAR KALI BADI MANDIR,
DELHI - 110096.
(Through: Mr. Dhruv Mohan, Advocates)
...Opposite Party
ALLOWED PAGE 1 OF 13
C.C 1256/2018 D.O.D.: 11.10.2023
MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRWAL, MEMBER (GENERAL)
Present: Nikita Sharma, counsel for the Counsel for the
Complainant.
Mr. Arjun Raghuvanshi, proxy counsel for the OP. (Enrl.
No. D/1218/2016).
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 Party and has prayed the following reliefs:
i. Direct the Respondent to withdraw its demand of Rs. 10,22,441/- made in the 'Final Demand Letter' dated 28th June, 2018, and execute and register the sub-lease deed as well as other documents necessary to be executed/registered for the apartment in favour of the Complainant; ii. Direct the Respondent to pay interest @ 12% per annum with effect from 15' December, 2015, on the total amount deposited by the Complainant with the Respondent, till the date of executing the sub- lease deed by the Respondent, along with all necessary documents;
iii. Direct the Respondent to pay Rs. 3,00,000/-
(Rupees Three Lakh), as compensation for disruption to living, mental torture, agony and harassment caused to the Complainant on account of the deficient and unfair practices of the Respondent;
iv. Direct to the Respondent to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) to the ALLOWED PAGE 2 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
Complainant, as a whole, towards litigation costs including mental agony.
Pass such further order or orders, which this Hon'ble Commission may deem fit in the circumstances of the case.
2. The brief facts necessary for adjudicating the present complaint are as that the Complainant booked a unit in the 'Sunshine Helios' project of the Opposite Party, located at plot no. 5B, Sector-78, Noida, Uttar Pradesh. Subsequently, the Opposite Party allotted unit no. B-604/SH to the Complainant vide an allotment letter with terms and conditions dated 23.09.2010. The Opposite Party was to hand over possession of the said unit by June 2013. However, the legal possession of the said unit has not been handed over to the Complainant till date. Further, after an inordinate delay of two and a half years, the Opposite Party sent an offer of possession, contingent upon the clearance of outstanding dues, which was duly paid by the Complainant. Accordingly, the Opposite Party also issued a 'no dues' certificate to the Complainant but failed to execute the sub-lease deed. Moreover, during the offer of possession, the Complainant was assured that the completion certificate of the project would be obtained shortly, enabling the execution of the sublease deed. Despite several communications from the Complainant regarding the registration of the sublease deed, the Opposite Party failed to execute it. Furthermore, instead of executing the sublease deed in favor of the Complainant, the Opposite Party issued an illegal demand of Rs. 10,22,441/- vide letter dated 28.06.2018. The Complainant promptly contacted the Opposite Party to express concerns about this demand and the sublease deed. In response, the Opposite Party threatened the ALLOWED PAGE 3 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
Complainant with eviction if the demand was not paid. Subsequently, the Complainant sent a legal notice dated 08.10.2018 to the Opposite Party, highlighting the non-execution of the sub- lease deed despite having received the full consideration from the Complainant and objecting to the arbitrary and illegal demand but the Opposite Party did not provide a satisfactory response.
3. The Opposite Party has contested the present case and raised preliminary objections regarding the maintainability of the complaint case. The counsel for the Opposite Party submitted that the Complainant is not a consumer under the Consumer Protection Act, 1986, as she invested the money with the intention of earning a profit, which amounts to a commercial purpose. The counsel for the Opposite Party further submitted that the Complainant has been in wrongful possession, as possession was originally handed over for fit-outs only. However, the Complainant has been residing there with her family in violation of the contractual terms and the law. He also submitted that the Complainant was a defaulter in the transactions, and therefore, should not be allowed to benefit from her own wrongdoing.
4. The counsel for the Opposite Party argued that the delay, if any, was not due to any act or omission of the Opposite Party but rather due to the lessor (Noida) granting a defective lease of the land for the project, which was never disclosed to the lessor or the Opposite Party. Furthermore, it was argued that continuous agitation by farmers and villagers at the site had disrupted construction activities. The project was also adversely affected by an order passed by the National Green Tribunal, which prevented the Opposite Party from extracting groundwater for the project's use. Additionally, the ALLOWED PAGE 4 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
project faced challenges due to orders dated 14.04.2013, 17.09.2013, and 28.10.2013, which prohibited the Opposite Party from carrying out construction activities within a 10 km radius of the Okhla Bird Sanctuary without obtaining prior environmental clearance. 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 duly filed their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. The fact that the Complainant had booked a unit with the Opposite Party is evident from the allotment letter dated 23.09.2013 (Annexed-C2).
8. The first question for consideration is whether complainant falls in the category of 'consumer' under the consumer protection act, 1986?
9. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 1986 as she invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. ....... A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In ALLOWED PAGE 5 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
10. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
11. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the unit purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant.
12. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the unit for commercial purpose or ALLOWED PAGE 6 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
for resell and on perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such unit. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
13. The Opposite Party further contented that the delay, if any, in handing over the possession of said unit was due to force majeure circumstances, which were beyond the control of the Opposite Party.
14. The Opposite Party further contends that any delay, if present, is not a result of any act or omission on their part, but rather due to the lessor (Noida) granting a defective lease of the land for the project, which was never disclosed to the lessor or the Opposite Party. However, the Complainant should not be made to suffer due to actions or omissions between the Opposite Party as lessee and the lessor, as the Complainant is an honest buyer of the said unit and is paying consideration for it. It is evident that the Opposite Party also failed to provide any opportunity for opting out of the said project, while simultaneously sending reminders for payment towards the said unit, which constitutes negligence on their part. This omission could have allowed buyers to reconsider their participation in this project.
15. The Opposite Party further contended that there was continuous agitation by farmers and villagers at the site, which had stopped construction on the land. Additionally, the said project suffered due ALLOWED PAGE 7 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
to the orders passed by the National Green Tribunal, which prevented the Opposite Party from extracting groundwater for the purpose of the said project. The project also faced challenges due to orders dated 14.04.2013, 17.09.2013, and 28.10.2013, which prohibited the Opposite Party from carrying out construction activities within a 10 km radius of the Okhla Bird Sanctuary without obtaining prior environmental clearance. However, the Opposite Party relied on all these orders, which were issued after the expiry of the stipulated period within which they were required to complete the construction of the said project. Furthermore, in a similar case wherein groundwater extraction in the Haryana region was banned and the Hon'ble National Green Tribunal directed a halt to construction activities in Delhi NCR to prevent emissions, as seen in Consumer Case no. 1624 of 2018 titled 'Sachin Goel & Anr. v. M/S. Ansal Housing & Construction Limited,' decided on 13.07.2022, the Hon'ble NCDRC held:"
"12.Admitted facts of the case are that complainants were to get possession of the apartment within 48 months with 6 months grace period. It is submitted that extraction of ground water was banned in Gurgaon by Punjab and Haryana High Court, therefore, construction was delayed. This cannot be a ground for Force Majeure because the opposite party could have used tankers and other sources to get water for the construction purpose and, therefore, this plea of Force Majeure is not a valid plea.
13. As regards ban on the mining of sand in Haryana and Rajasthan is concerned, it is not such an act which was beyond ALLOWED PAGE 8 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
the control of the opposite party or would have made it impossible for the opposite party to complete the construction because dust could have been obtained from other sources. It is also submitted that delay had occurred due to ban on the use of dust in 2015-2016 by the National Green Tribunal. It is expected form the opposite party that while making the promise regarding the date of possession, it should assess the anticipated date of possession after taking construction or the likely impediment in the construction. The opposite party certainly would have considered all these factors and that is why it gave time of 6 months of Force Majeure. It is also clear that no specific period during which the use of dust etc was banned by the National Green Tribunal has been mentioned by the opposite party. It is apparent that promised date of possession was 02.04.2017 and the present complaint was filed in the year 2018 and continued till 2022 and till date, there is no evidence that construction had been completed and the occupancy certificate has been obtained. Therefore, the ground that they could not complete the construction due to these reasons are meritless and baseless and has been taken with the intention to gain some advantage. It is a proved fact that opposite party had failed to give offer of possession of the subject apartment till date i.e. even after the expiry of five years."
16. Above dicta reflect that the bans on groundwater extraction and the orders of the NGT, do not fall within the scope of circumstances beyond their control and factors like farmers agitation cannot be considered force majeure events. Therefore, in the present matter, ALLOWED PAGE 9 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
the Opposite Party also could have used tankers and other sources to get water for the construction purpose. Furthermore, there is a lack of concrete documentary evidence to support the claim that these reasons have genuinely caused delays in delivering possession. Therefore, it can be concluded that the contentions made by the Opposite Party in relation to force majeure hold no substantive basis. Also, in the present case the allotment letter was executed way back in year 2010. Therefore, the contention taken by the Opposite Party is devoid of any merits.
17. The main question for consideration is whether the Opposite Party is deficient in providing its services to the Complainant?
18. The main question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainant. 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 ALLOWED PAGE 10 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
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."
19. At this stage, we deem it appropriate to refer to terms and condition of the said allotment letter dated 23.09.2010 entered into by both the contesting parties. It also reflects that the Opposite Party was bound ALLOWED PAGE 11 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
to hand over the possession of the said unit to the Complainant by 30.06.2013. However, the Opposite Party offered possession of the said unit on 20.10.2023 for fit out, after a delay of almost two and half year and also failed to executed sub lease deed in favour of the Complainant till date.
20. Furthermore, the Opposite Party contended that there was a default in making payment towards the total consideration of the said unit. Upon perusal of the record, it is clear that the Complainant had made a payment of Rs. 40,94,880/-. In response, the Opposite Party issued a no-objection certificate, and the only outstanding due against the said unit amounted to Rs. 3,20,000/-. However, the Opposite Party sent a demand notice for Rs. 10,22,441/-, along with a hefty penalty amounting to Rs. 5,70,038/- for default in payment, without any justification as there was already inordinate delay in handing over the possession of the said unit. Consequently, we deem the demand for this delayed penalty as illegal and arbitrary.
21. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to execute and register the sub-lease deed as well as other documents necessary to be executed/registered for the said unit in favour of the Complainant after receiving amount of Rs. 4,52,403/- as per demand letter 28.08.2018.
22. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay:
A. we direct Opposite Party to pay the penalty for delayed possession @ Rs. 5 per Sq. ft per month from 30.06.2013 (the date on which possession of the said unit has to be ALLOWED PAGE 12 OF 13 C.C 1256/2018 D.O.D.: 11.10.2023 MS. KULPREET KAUR VS. SUNSHINE INFRAWELL PVT. LTD.
given to the Complainant) till the legal date of handing over possession.
B. Rs. 2,00,000/- as cost for mental agony and harassment to the complainant; and C. The litigation cost to the extent of Rs. 50,000/-.
23. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
24. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
25. 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:
11.10.2023 ALLOWED PAGE 13 OF 13