State Consumer Disputes Redressal Commission
Anil Jindal & Anr. vs Smv Agences Pvt.Ltd. on 5 May, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 03.03.2021
JUDGMENT PRONOUNCED ON: 05.05.2021
COMPLAINT NO. 74/2013
IN THE MATTER OF
ANIL JINDAL & ANR. .......COMPLAINANTS
VERSUS
M/S SMV AGENCIES PVT. LTD. ....OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. Rupesh Tyagi, Counsel for the Complainants.
Mr. Anish Verma, Counsel for the Opposite Party
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. Brief facts necessary for the adjudication of the present complaint are that in September, 2005, the Complainants booked three plots in the project of the Opposite Party by the name and style of "Jaipuria's Sunrise Greens" located at Village Bahmetha, Ghaziabad, Uttar Pradesh, and paid the registration advance of Rs. 5,00,000/- for each plot as per the booking receipts dated 24.09.2005.
CC 74/2013 Page 1 of 132. Subsequently, the Complainants were issued three allotment letters dated 10.11.2006 and were provisionally allotted Plots no. B-19, B- 20 and E-26, all admeasuring 300 sq. yards. The total sale consideration of each plot was agreed at Rs.17,16,568/-.
3. At the time of booking, the Complainants were promised that the possession of the plots would be delivered within one year from the date of issuance of the allotment letter. However, the allotment letter is silent on this aspect and does not prescribe a specific time period for delivery of possession.
4. The complainants time and again inquired about the date of completion of the project, but the Opposite party always referred to reasons being beyond their control for delayed start in construction and slow progress at the project site.
5. Eventually, the Opposite Party vide letter dated 22.01.2011 informed the Complainants that the plot no. B-20 as allotted to them has been changed to plot B-126 and the plot no. B-19 as allotted to them has been changed to plot B-125 and the super area of the aforesaid plots has been decreased from 300 sq.yards. to 270 sq.yards.
6. It is pertinent to mention here that the Opposite Party completely ignored the booking made by the Complainants for Plot no. E-26. On a visit to the project site, the complainants learned that the plot E-26 was non existent.
7. The Opposite Party raised various demands with respect to the outstanding amount for Plot numbers B-125 and B-126 and arbitrarily kept on increasing the Infrastructural Developmental Charges and External Developmental Charges.
8. Subsequent thereto, the complainants got served a legal notice dated 19.11.2012 upon the Opposite Party demanding compensation for CC 74/2013 Page 2 of 13 delay caused and possession of the aforesaid booked plots. The opposite party failed to revert to the aforesaid legal notice.
9. During the course of time and till the filing of the present complaint, the Complainants made a total payment of Rs. 43, 38, 000/- to the Opposite Party for three plots, which have been duly acknowledged.
10. Aggrieved by such laxity in keeping the hard earned money of the complainants for nearly 7 years, the complainants approached this commission alleging deficiency of services on part of the Opposite Party.
11. The Opposite Party contested the present case and raised some preliminary objections as to the maintainability of the present complaint and contended (a) that the said plots have been purchased solely for the purpose of investment, merely for "Commercial Purpose", hence, the complainants are not Consumers within the provisions of the Consumer Protection Act, 1986; (b) that the present complaint is barred by limitation; (c) that the present complaint is not maintainable before this commission on lack of territorial jurisdiction since the plots are location in Ghaziabad ; (d) that any dispute arising between the parties is to be referred to Arbitration (e) that the Complainants have failed to establish any kind of deficiency in providing services by the Opposite Party. Pressing the aforesaid preliminary objections, the Opposite Party prayed that the present Consumer Complaint should be dismissed.
12. The complainants filed their Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record. After the completion of the pleadings, the Final Arguments on part of the both the parties were heard.
CC 74/2013 Page 3 of 1313. We have heard the counsel for both the parties and perused through the material on record.
14. The fact that the complainants had booked three plots with the Opposite Party is not in dispute from the evidence on record. Moreover, in its written statement, the Opposite Party has not denied the receipt of an amount of Rs. 43, 38, 000/- paid by the Complainants, hence, the same stands unrebutted.
15. Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues as to the maintainability of the Consumer Complaint.
TERRITORIAL JURISDICTION
16. The first question for consideration is whether this commission has the territorial jurisdiction to adjudicate the present complaint. We deem it appropriate to refer to Section 17(2) of the Consumer Protection Act, 1986 which provides as under:
".........(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or CC 74/2013 Page 4 of 13
(c) the cause of action, wholly or in part, arises."
17. Analysis of Section 17(2) of the Consumer Protection Act, 1986 leads us to the conclusion that this commission shall have the territorial jurisdiction to entertain cases where Opposite Party at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or the cause of action arose.
18. Having discussed the statutory position, the facts of the present case reflect that the registered office of the Opposite Party is at 8-C, Hansalaya Building, 16, Barakhamba Road. Since the registered office falls within the territory of Delhi, this commission has the territorial jurisdiction to adjudicate the case.
19. To strength the aforesaid findings, we tend to rely on Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, wherein it has been held as under:
"It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint."
20. Relying on the above settled law, we are of the view that this commission has the territorial jurisdiction to decide the present complaint.
CC 74/2013 Page 5 of 13PERIOD OF LIMITATION
21. The next issue to be adjudicated is whether the complaint is within the period of limitation as prescribed in the Consumer Protection Act, 1986. 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."
22. Analysis of Section 24A of the Consumer Protection Act, 1986 shows that this commission is empowered to admit a complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. We deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. reported at I (2020) CPJ 93 (NC) wherein the Hon'ble National Commission has held as under:
"13. The Opposite Party contested the complaint as being barred by limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 since the last date stipulated in the buyers' agreement for giving possession CC 74/2013 Page 6 of 13 of the flat expired more than 2 years ago. 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. It is only when the seller virtually refused to give possession that the period of limitation prescribed under section 24(A) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer. In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time. Therefore, the cause of action continues to subsist in favour of the Complainant."
23. Applying the aforesaid law, in the present case also, since the possession of the plots have not been delivered to the complainants, the cause of action continues to subsist in favour of the complainants and the present complaint is within the period of limitation.
COMPLAINANTS- CONSUMERS OR NOT?
24. The Opposite Party has further contended that the complainants are not Consumers as defined under the Consumer Protection Act, 1986 since the plots were purchased for investment, which constitutes commercial purpose.
25. 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 Apartments were purchased for commercial CC 74/2013 Page 7 of 13 purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants 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 Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."
26. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the plot purchased was for commercial purpose, by way of some documentary proof and a bald statement is not sufficient to raise adverse inference against the Complainants.
27. In the present case also, the Opposite Parties have merely made a statement that the Complainants purchased the plots for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainants are 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 houses. 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 Parties in answered in the negative.
WHETHER THE COMPLAINT IS MAINTAINABLE AS PER THE ARBITRATION CLAUSE OF THE ALLOTMENT LETTER ?
28. The next question for consideration before us is whether the complaint is maintainable as per Clause 17 of the Allotment letter CC 74/2013 Page 8 of 13 entered into and duly executed between the Complainants and the Opposite Party. Clause 17 of the Allotment Letter has been reproduced below for ready reference:-
"17. That all disputes and disagreements arising out of or in connection with or in relation to this allotment which can not be amicable settled shall be finally decided as per Arbitration and Conciliation Act, 1996."
29. On the point of the existing arbitration clause, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at (2019) 12 SCC 751, wherein the Hon'ble Supreme Court held as under:
"5. This Court in the series of judgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act as noticed above."
30. Hence, the perusal of the aforesaid dicta of the Hon'ble Apex Court reflects that the existence of an Arbitration clause is no bar for the consumer fora to entertain a complaint under the Consumer Protection Act, 1986.
CC 74/2013 Page 9 of 13DEFICIENCY OF SERVICE
31. Having discussed the maintainability of the present complaint, the next issue to be adjudicated is whether the Opposite Parties are actually deficient in providing its services to the Complainants. 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) 12 SCC 512, wherein it has been held as follows:
"28. 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 CC 74/2013 Page 10 of 13 present case is guilty of a delay of years in the fulfilment of a contractual obligation."
32. Returning to the facts of the present case, we deem it appropriate to refer to Clause 9 of the Allotment letter, which reads as follows:
"9. The company shall endevour to give possession of the unit to the intending allottee(s) subject to force majeure circumstances and on receipt of all the payments as per the installment plan from the date of booking and on receipt of complete payment of the basic price and other charges due and payable up to the date of possession according to the payment plan applicable to him/her. The company shall issued final call notice to the intending allottee(s) , who shall within 30 days thereof remit all dues and take possession of the unit......."
33. Clause 9 of the Allotment letter stipulates no specific time as to the delivery of possession. It is settled law that the complainants 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).
34. The Opposite party failed to handover the possession of the plots within a reasonable time period and thus the Opposite Party is deficient in providing its services to the Complainants and the Complainants are entitled for the refund of the money deposited by them with the Opposite Parties.
CC 74/2013 Page 11 of 13CONCLUSION
35. Having discussed the liability of the Opposite Party for its deficient services and keeping in view the facts of the present, we allow the following reliefs as prayed for by the Complainant:
I. We direct the Opposite Party to pay an amount of Rs. 43, 38, 000/- along with interest as per the following arrangement:
A. An interest @ 6% calculated from the date of each instalment/payment received by the Opposite Party till 05.05.2021 (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 30.06.2021; C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 30.06.2021, the entire amount is to be refunded with an interest @ 9% p.a. calculated from the date of each instalment/payment received by the Opposite Party till the actual realization of the amount.
II. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is also directed to pay to the complainant A. A sum of Rs. 2,00,000/- as cost for mental agony and harassment;
B. And the litigation cost to the extent of Rs. 50,000/-.
36. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
CC 74/2013 Page 12 of 1337. 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.
38. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
05.05.2021 CC 74/2013 Page 13 of 13