State Consumer Disputes Redressal Commission
Mr. Ashutosh Ahluwalia vs Mr. Mahesh Bhagchandka Chairman, M2K ... on 6 February, 2024
C.C 257/2016 D.O.D.: 06.02.2024
MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Admission: 07.04.2016
Date of hearing: 13.09.2023
Date of Decision: 06.02.2024
COMPLAINT CASE NO.- 257/2016
IN THE MATTER OF
MR. ASHUTOSH AHLUWALIA,
H/O LATE MRS. RENU AHLUWALIA,
212 SUKHDEV VIHAR,
NEW DELHI- 110025.
(Through: Mr. Jai Dehadrai, Advocate)
...Complainant
VERSUS
MR. MAHESH BHAGCHANDKA,
CHAIRMAN,
M2K INFRASTRUCTURE PVT. LTD.,
E-13/29, HARSHA BHAWAN,
CONNAUGHT CIRCUS,
NEW DELHI- 110001.
(Through: Mr. Kaushal Budhia, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 10
C.C 257/2016 D.O.D.: 06.02.2024
MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. 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. Jai Dehadrai,
Counsel for the complainant.
Mr. Kaushal Budhia, counsel for the OP.
(Email: [email protected])
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. That the Opposite Party be directed to transfer the ownership of the said plot, bearing the address, G-29 admeasuring 263.99 sq. yards which is currently unregistered, which was allotted to late Mrs Renu Ahluwalia in the name of her rightful husband and complainant Mr. Ashutosh Ahluwalia. b. That the Opposite Party be directed to waive-off the unjustified demand of Rs.13,45,861/-, c. Opposite Party be directed to compensate the complainant o the tune of Rs. 10,00,000/- for the mental agony and harassment caused to him, d. Cost of litigation may also be awarded suitable and, e. Any other/further order/direction as the forum deems fit as per the facts and circumstances mentioned above in the interest of justice.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant's wife vide application form applied for the allotment of a plot in the 'M2K County' project of the Opposite Party, situated at Dharuhera, Haryana. Subsequently, the Opposite Party ALLOWED PAGE 2 OF 10 C.C 257/2016 D.O.D.: 06.02.2024 MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
allotted plot no. G-29 in the aforementioned project, and a Plot Buyer Agreement was executed between the wife of the Complainant and the Opposite Party on 03.12.2008. As per Article 4 of the said agreement, the Opposite Party was to hand over possession of the said plot within 18 months from the date of execution of the agreement dated 03.12.2008. However, the Opposite Party has failed to hand over possession of the said plot till date.
3. Furthermore, the Complainant's wife has paid a total sum of Rs.25,74,222/- (including EDC of Rs. 2,79,301/-) towards the total consideration of the said plot, i.e., Rs. 27,96,945/-, to the Opposite Party as and when demanded by it. Additionally, on 05.02.2013, the Complainant received an enhanced unjustified amount of Rs.5,42,115/- towards the said plot. More so, the Complainant sought clarification from the Opposite Party regarding the new demand. However, the Opposite Party failed to provide any satisfactory response to the Complainant. Furthermore, in 2014, the Complainant visited the site of the said project and was shocked to find that the Opposite Party had failed to complete the construction of the said plot. Therefore, the Complainant again contacted the Opposite Party to inquire about the status of construction of the said project. However, instead of providing any explanation for the delay in completing the construction, the Opposite Party vide letter dated 09.12.2012, demanded an exorbitant amount of Rs.13,45,861/- along with penal interest at the rate of 24% per annum on delayed payment, which is illegal and unjustified. The Complainant sent a legal notice dated 01.02.2016 to the Opposite Party regarding the unjustified demand of Rs. 13,45,861/- towards the said plot but the ALLOWED PAGE 3 OF 10 C.C 257/2016 D.O.D.: 06.02.2024 MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
Opposite Party failed to provide any satisfactory response to the Complainant.
4. 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 this commission does not have pecuniary jurisdiction to entertain the present complaint. He further submitted that after the death of the original owner, the Complainant has no locus standi to file the present complaint as he was neither a nominee nor a party to the plot agreement. He also submitted that the present complaint is an abuse and misuse of the legal process, through which the Complainant is attempting to take undue advantage of his own wrongs and defaults already committed by the original allottee, who failed to pay the installments due since 2013 as demanded by the Opposite Party at the offer of possession stage. Additionally, he argued that the Complainant failed to demonstrate any deficiency on the part of the Opposite Party, as the Complainant did not comply with the necessary requirement of payment of outstanding dues amounting to Rs.13,45,861/-. 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. Written Argument of both the parties is on record.
6. We have perused the material available on record and heard the counsel for the parties.
ALLOWED PAGE 4 OF 10 C.C 257/2016 D.O.D.: 06.02.2024
MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
7. The first question for consideration is whether this commission have pecuniary jurisdiction to adjudicate the present complaint?
8. The Opposite Party contended that this commission does not have the pecuniary jurisdiction to adjudicate the present complaint. We deem it appropriate to refer to Section 17 of the Consumer Protection Act, 1986 which provides as under:
"(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain-
(i) complaints where the value of the goods or services and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore]; and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (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 ALLOWED PAGE 5 OF 10 C.C 257/2016 D.O.D.: 06.02.2024 MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
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
(c) the cause of action, wholly or in part, arises."
9. Analysis of Section 17 of the Consumer Protection Act, 1986 leads us to the conclusion that this commission shall have the pecuniary jurisdiction in cases where the total claim including the compensation is more than twenty lakhs and less than One Crore.
10. Having discussed the statutory position, the facts of the present case reflect that the value of the plot and the compensation prayed for by the Complainant is beyond Rs. 20 Lakhs but does not exceed Rs. 1 Crore, accordingly, this commission has the pecuniary jurisdiction to deal with the present complaint.
11. The next question for consideration is whether the Complainant has locus standi to file present case?
12. On perusal of record, it is duly noted that the Complainant is the husband of the original allotee of the property in question. Further, it is also clear from the record that after the property was allotted to the Complainant's deceased wife but she unfortunately passed away. The Complainant duly intimated the same to the Opposite Party. Also, the Complainant made communication regarding the transferring the ownership of the said property in his name. However, the Opposite Party failed to do and asked him to clear the outstanding dues.
13. Therefore, based on these indisputable facts, we do not hesitate in saying that the Complainant has every right to pursue and present ALLOWED PAGE 6 OF 10 C.C 257/2016 D.O.D.: 06.02.2024 MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
this complaint against the Opposite Party, seeking appropriate resolution.
14. 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 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.
ALLOWED PAGE 7 OF 10 C.C 257/2016 D.O.D.: 06.02.2024
MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
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. At this stage, we find it appropriate to refer to Article 5 of the Plot Buyer agreement dated 03.12.2008, which was entered into by both the Complainant's wife and the Opposite Party. As per this article, the Opposite Party was obligated to hand over possession of the plot within 18 months, with an additional grace period of 6 months from the execution date of the agreement. However, the Opposite Party failed to complete the construction of the plot within the prescribed time and also did not offer possession of the plot within 24 months. Furthermore, it was only after more than 4 years from the expiration of the 24 month period that the Opposite Party sent a letter dated 15.12.2014, requesting the clearing of outstanding dues with enhanced EDC, without providing an explanation for the delay in handing over possession of the plot within the agreed time frame.
16. The Opposite Party contended that there was a default in payments by the Complainant as per the opted payment plan. However, on perusal of the record, it is evident that the Complainant made a substantial payment of Rs. 25,74,222/- towards the total price of the plot, which amounted to Rs. 27,96,945/-. Therefore, it cannot be said that there was any default on the part of the Complainant, especially considering the significant delay on the part of the Opposite Party in completing the construction of the plot. Furthermore, it is apparent from the circular dated 05.02.2013 issued by HUDA (Haryana Urban Development Authority) regarding the increased EDC.
ALLOWED PAGE 8 OF 10 C.C 257/2016 D.O.D.: 06.02.2024
MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
Therefore, the Complainant is liable to pay outstanding dues of Rs. 5,42,115/- as per the demand notice dated 15.12.2014 from the Opposite Party. However, the demand for interest as a penalty of Rs.8,03,746/- on delayed payment is deemed arbitrary and illegal.
17. 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 respect to the time for completing the construction of the said plot and adding unjust penalty of Rs.8,03,746/- for making delayed payment.
18. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite party to transfer the owner ship of said plot in the name of the Complainant and deliver the physical and vacant possession of the said plot (complete in all respect) to the Complainant within two months after receiving the outstanding amount of Rs. 5,42,115/-.
19. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay:
A. To pay the penalty for delayed possession @ Rs. 10 per Sq. ft per month from the date 03.12.2010 on which possession of the said plot has to be given to the Complainant till the date of realization. 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/-.
20. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
ALLOWED PAGE 9 OF 10 C.C 257/2016 D.O.D.: 06.02.2024
MR. ASHUTOSH AHLUWALIA VS. M2K INFRASTRUCTURE PVT. LTD.
21. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties as well as forwarded to the corresponding E-mail addresses available on the record i.e. [email protected] (Complainant) and [email protected] (Opposite Party).
22. 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:
06.02.2024 LR-ZA ALLOWED PAGE 10 OF 10