State Consumer Disputes Redressal Commission
Shalu Gupta & Anr. vs Taneja Devlopers & Infrastructure Ltd. on 11 January, 2023
C.No. 69/2017 D.O.D.: 11.01.2023
MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 16.01.2017
Date of hearing: 14.10.2022
Date of Decision: 11.01.2023
COMPLAINT CASE NO.- 69/2017
IN THE MATTER OF
1. MS. SHALU GUPTA,
2. MR. SANDEEP GUPTA,
BOTH AT:
779/49, GALI NO. 49,
LEKHU NAGAR, TRI NAGAR,
DELHI
(Through: Mr. Sanjay Bansal, Advocate)
...Complainants
VERSUS
TANEJA DEVELOPERS INFRASTRUCTURE LTD.,
THROUGH ITS MANAGING DIRECTOR/DIRECTOR,
NOW KNOWN AS: TDI INFRASTRUCTURE LTD.
G-7 GF CONNAUGHT CIRCUS, OPP. MADRAS HOTEL,
NEW DELHI-110001.
(Through: Ms. Yashodhara Gupta, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 10
C.No. 69/2017 D.O.D.: 11.01.2023
MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Sanjay Bansal, counsel for the complainant.
Ms. Yashodhara Gupta, counsel for the Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainants before this Commission alleging deficiency of service on the part of Opposite Party and has prayed the following reliefs:
a) "The Present Complaint may please be allowed and the respondent be directed to hand over peaceful possession of plot no. K-521 A alongwith an amount of Rs. 18,00,000/- as damages towards delay in handing over peaceful possession or in alternative refund the amount as deposited to the extent of Rs 3096198/- as paid by the purchaser to the respondents as per receipts with interest @24% P.a since the date of deposits till date of payment.
It is also prayed that the cost of filing the present petition be also allow and the respondents be burdened with exemplary cost for not releasing the money of the petitioner. Any other or order or prayer which this Hon'ble Court may please pass in the facts and circumstances of the present case."
2. Brief facts for the adjudication of the present complaint are that the Complainants purchased a residential plot no. K-521 at a rate of ALLOWED PAGE 2 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE Rs.11,750/- per sq. yd., in Project of Opposite Party for a total price of Rs.29,37,500/-.
3. The Complainants had paid a total sum of Rs.26,43,750/- plus an amount of Rs.4,52,450/- towards EDC and IDC and Rs.37,500/- in cash towards transfer charges, as demanded by the Opposite Party till date. Thereafter, the Complainants requested the Opposite Party to give the date of delivery of the said plot but was of no avail.
4. The Complainants sent legal notice to the Opposite Party vide which they asked the Opposite Party to give the possession of the plot but the Opposite Party failed to pay any heed towards the requests of the Complainants.
5. 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 Complainants are not a 'consumer' under the Consumer Protection Act, 1986 as the Complainants have invested the money to earn profits, which amounts to commercial purpose. The counsel for the Opposite Party submitted that the Complainant is a subsequent allottees to the subject plot. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.
6. The Complainants have filed their Rejoinder rebutting the written statement filed by the Opposite Party. The Evidence by way of Affidavit of both the parties is on record.
7. We have perused the material available on record and heard the counsel for the parties.
8. Before delving into the merits of the present case, we found that payment to the extent of Rs.30,96,198/- has been paid by the Complainants till date to the Opposite Party . The Complainants ALLOWED PAGE 3 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE were allotted Plot No. K-521A by the Opposite Party which is evident from the Allotment letter dated 21.06.2011 (Annexure R-VI with the present written statement) WHETHER COMPLAINANTS FALL IN THE CATEGORY OF „CONSUMER‟ UNDER THE CONSUMER PROTECTION ACT, 1986?
9. The Opposite Party contended that the Complainants are not a "Consumer" as defined under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Section 2 (1) (d) of Consumer Protection Act, 1986:
"Section 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 the first mentioned person [but does not include a person who avails of such services for any commercial purpose] Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and ALLOWED PAGE 4 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;
10. From, the explanation to the above statutory provision, it flows that commercial purpose does not include if it is for the purpose of earning his livelihood by means of self-employment.
11. 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 follows:
"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."
12. 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 mere bald statement is not sufficient to raise adverse inference against the Complainants.
13. In the present case, the Opposite Party has merely made a statement that the Complainants purchased the Plot for commercial purpose and on perusal of the record before us; we fail to find any material which shows that the Complainants have booked the said Plot for commercial purpose and for gaining profit. Mere allegation, that the ALLOWED PAGE 5 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE purchase of the unit 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 negative.
WHETHER THE OPPOSITE PARTY IS LIABLE FOR DEFECIENCY IN SERVICE?
14. Having discussed the preliminary objections raised on behalf of the Opposite Party, the last issue which arises is whether the Opposite Party was actually deficient in providing its services to the Complainants or not. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection 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.
15. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:
(o)"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal ALLOWED PAGE 6 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE service"
16. At this stage, we deem it appropriate to refer to the case of 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 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 ALLOWED PAGE 7 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE 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.
17. Further on perusal we find that the Opposite Party did not fixed the date on which possession is to be handed over to the Complainants. On this issue, we deem it appropriate to refer to "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." reported in MANU/CF/0296/2019, wherein it has been held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:
46. Time for performance of promise, where no application is to be made and no time is specified -
Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation - The question "what is a reasonable time"
is, in each particular case, a question of fact".
19. From the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of construction and delivery of possession. If the possession is delivered beyond 42 months or beyond 48 months, the deficiency in ALLOWED PAGE 8 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023 MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE service on the part of the opposite party shall stand proved."
18. Relying on the above settled law, it is clear that the Opposite Party failed to handover the possession of the plot in question even after the passing of more than 10 years from the date of allotment.
19. In these circumstances, we hold that the Opposite Party is deficient in providing its services to the Complainants and the Complainants are entitled to get the refund of the amount already paid by them.
20. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund an amount of Rs. 30,96,198/- (Entire amount paid by the Complainants till date) along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till 11.01.2023 (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 11.03.2023;
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 11.03.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till the actual realization of the amount.
21. 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:
ALLOWED PAGE 9 OF 10 C.No. 69/2017 D.O.D.: 11.01.2023
MS. SHALU GUPTA & ANR. Vs. TANEJA DEVELOPERS & INFRASTRUCTURE A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainants;
B. Rs. 50,000/- as litigation cost to the Complainants;
22. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
23. 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.
24. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On: 11.01.2023 ALLOWED PAGE 10 OF 10