State Consumer Disputes Redressal Commission
Suhas Gupta & Anr. vs Maxheights Township And Project Pvt. ... on 26 September, 2022
C/161/2019 D.O.D.: 26.09.2022
MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 14.02.2019
Date of hearing: 18.07.2022
Date of Decision: 26.09.2022
COMPLAINT CASE NO.- 161/2019
IN THE MATTER OF
1. MR. SUHAS GUPTA,
S/O MR. SURESH KUMAR GUPTA
2. MS. ARUNA GUPTA
W/O MR. SURESH KUMAR GUPTA
BOTH RESIDENTS OF:
FLAT NO. 513, SUNHERI BAGH APARTMENT,
SECTOR - 13, ROHINI, DELHI
(Through: Mr. Manish Kumar, Advocate)
...Complainants
VERSUS
1. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD.
THROUGH ITS DIRECTOR VIKRAM NARANG,
HAVING OFFICE AT:
SD-65, TOWER APARTMENT,
PITAMPURA, DELHI - 110034
2. BRAHMA MAINTENANCE SERVICES PVT. LTD.,
THROUGH ITS DIRECTOR TILAK RAJ,
HAVING OFFICE AT:
1ST BASEMENT, PLOT NO. 15,
DISTRICT CENTRE, MANGALAM PLACE,
NN MALL, SECTOR 3, ROHINI, DELHI - 110085
(Through: Mr. Kshitij Sharda for
Opposite Party No.1 and Mr. Anshul
Dabbas for Opposite Party No.2)
... Opposite Parties
DISMISSED PAGE 1 OF 8
C/161/2019 D.O.D.: 26.09.2022
MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the Parties
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present complaint has been filed under Section 17 of Consumer Protection Act, 1986 by the Complainant before this Commission alleging deficiency of service and unfair trade practice by the Opposite Parties and has prayed the following reliefs:
a) "pay/return the additional amount charged from complainants, the total of which amounts to Rs.1,98,073/-
along with interest @ 24% p.a., (this includes Rs. 1,25,087/- and Rs. 85,500/- detailed above);
b) pay Rs.12,00,000/- to the complainants towards renovation for fixing quality deficiencies, fixtures and fittings required to be done in accordance with sample flat;
c) pay Rs. 8,00,000/- to the complainants towards delay in handing over the possession of flat in question (@ Rs. 20,000/- per month);
d) withdraw the demand of Rs.86,241/- made from complainants towards maintenance and electricity charges for period from 01.10.2016 to 31.12.2017 being unjustified and unreasonable.
DISMISSED PAGE 2 OF 8 C/161/2019 D.O.D.: 26.09.2022
MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR
e) pay the damages/compensation to the complainants at the rate of 24% p.a. on the total paid amount for the period starting from 09.09.2014 (the date of possession promised) till 11.01.2018 (date of possession)
f) to reduce minimum electricity charges to a reasonable amount consistence with charges of State Electricity Board, and;
g) To compensate the complainant to the tune of Rs. 2 lakh for causing breach of trust and deficient services provided by the opposite parties.
h) To pay the compensation amount Rs. 2 lac to the complainant for causing them mental pain and agony, physical hardship and financial losses.
i) To pay the cost of litigation Rs. 60,000/- to the complainant.
j) To pass any other or further order/directions in favour of the complainant and against the opposite parties."
2. Brief facts for the adjudication of the present complaint are that the Complainants booked a flat bearing no. 003, Block G having area of 1710 sq. ft. in the project "Maxheights Metroview Apartments situated at Village Jathari, Sector 35, Tehsil and District Sonepat, Haryana and an amount of Rs.5,00,000/- was paid by the Complainant. A letter of allotment dated 10.06.2015 was issued by the Opposite Party No.1 in favour of the Complainants. The counsel for the Complainants submitted that as per the Flat Buyer Agreement they were supposed to pay a total of Rs.21,80,250 for the said unit but they were forced to pay Rs.23,78,523/-. Thereafter, the Complainants paid additional Rs.1,98,273/- under protest. Moreover, as per the Flat Buyer Agreement dated 09.09.2011, the possession of DISMISSED PAGE 3 OF 8 C/161/2019 D.O.D.: 26.09.2022 MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR the said flat was to be handed over to the Complainants on 09.09.2014 but the same was handed over to the Complainants on 11.01.2018. The Complainants have signed the undated possession letter under protest. Accordingly, the Complainants have also signed the maintenance agreement prior to handing over the possession, which was done forcefully by the Opposite Party no.1. A conveyance deed was executed between Opposite Party No.1 and Complainant and got registered on 30.03.2017. The Complainants also paid Rs.1,25,087/- and Rs.85,500/- under protest to the Opposite Party No.1 on account of Electrification Head and Maintenance Security irrespective of the fact that an amount of Rs.42,750/- was also charged by the Opposite Party no.2 as maintenance charges and which was not mentioned in the Flat Buyer Agreement. Lastly, the Complainants alleged that the Opposite Party No.1 has handed over the possession of the flat which was not constructed or finished in accordance with the sample flat.
3. A legal notice dated 29.10.2018 was sent to the Opposite Parties asking to compensate the Complainants but no satisfactory reply was sought from the Opposite Parties. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Parties, the Complainants approached this Commission.
4. The Opposite Parties have separately filed their written statements and contested the present case wherein the Opposite Party No.1 has raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party No.1 submitted that the present complaint is devoid of any cause of action. Whereas, the counsel for the Opposite Party No.1 has also contended that as per Clause 26 (a) of the Buyer‟s Agreement, the Opposite Party no.1 DISMISSED PAGE 4 OF 8 C/161/2019 D.O.D.: 26.09.2022 MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR had to complete the construction of the flat in question within a period of 36 months from the date of execution of the Buyer‟s Agreement or additionally within grace period of 6 months i.e. a total of 42 months from the date of execution of the Buyer‟s Agreement. The said Buyer‟s Agreement was executed on 15.05.2015 and in the present case the Conveyance Deed has been executed on 30.03.2017. Moreover, the Construction has been completed and the possession thereof has also been handed over to the Complainants much before the stipulated period. The counsel for the Opposite Party No.1 further submitted that as per the Flat Buyer Agreement, a raw flat had to be handed over by the Opposite Party No.1. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party No.1 prayed that the complaint should be dismissed.
5. The Opposite Party No. 2 contended that they are only a maintenance agency appointed by Opposite Party no.1 for providing maintenance services to the occupants of the flats situated in the Project. Whereas the Opposite Party no.2 has been providing services as per the maintenance agreement dated 08.04.2017. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party No. 2 prayed that the complaint should be dismissed.
6. The Complainants have filed their Rejoinder rebutting the written statements filed by the Opposite Parties. The Evidence by way of affidavits and written arguments of Complainants and Opposite Party no.1 has been duly filed by the parties.
7. We have perused the material available on record and heard the counsel for both the parties.
8. Before delving into the merits of the present case, we found that the possession of the flat in question has already been taken by the DISMISSED PAGE 5 OF 8 C/161/2019 D.O.D.: 26.09.2022 MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR Complainants which is not in dispute and there is nothing on record to show that at the time of taking possession, Complainants lodged any protest with regard to delay in possession. Moreover, a conveyance deed has been executed between the parties.(Annexure- E with the complaint)
9. At the outset, we deem it appropriate to refer to the dicta of the Hon‟ble National Commission in T.K.A. Padmanabhan vs. Abhiyan CGHS Ltd. reported at II (2016) CPJ 273 (NC), wherein it has been held as under:-
"9. It is an admitted fact, that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the consumer complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got the possession. There is nothing on record to show, that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had taken the possession of the flat on 27.02.2004, unconditionally and without any protest, thereafter he cease to be a Consumer. The agreement executed between the parties, comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the consumer complaint on the face of it is not maintainable."
10. In the case of, Harpal Arya vs. Housing Board, Haryana Estate Manager Housing Board reported at 2016 SCC Online NCDRC 361, the Hon‟ble National Commission has held as follows:-
DISMISSED PAGE 6 OF 8 C/161/2019 D.O.D.: 26.09.2022
MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR "15. Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of petitioner to state, that house is not in a habitable condition. Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a 'Consumer' at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone."
11. From the aforesaid dicta of the Hon‟ble National Commission, it flows that in those cases, where the possession has been obtained by the Complainant without raising any protest at that time, the Complainant ceases to be a Consumer within the provisions of the Consumer Protection Act, 1986.
12. The instant complaint has been filed on 14.02.2019 i.e. after about thirteen months (as per Complainants, the date of possession is 11.01.2018) of taking over the possession of flat. Further, no document has been brought on record by the Complainants to prove that the possession of the flat was taken under protest, being aggrieved from delay in possession.
13. Hence, soon after the possession was taken, without protest, the Complainants ceased to be a Consumer within the provisions of the DISMISSED PAGE 7 OF 8 C/161/2019 D.O.D.: 26.09.2022 MR. SUHAS GUPTA AND ANR. VS. MAXHEIGHTS TOWNSHIP AND PROJECT PVT. LTD. & ANR Consumer Protection Act, making this Complaint untenable before this Commission.
14. Therefore, keeping in view the law settled by the Hon‟ble National Commission and the facts of the present case, we are of the view that the Complainants do not fall in the category of „Consumer‟ as per the Consumer Protection Act, 1986.
15. Having regard to the aforesaid discussion and legal position explained supra, we are of the considered view that since the Complainants are not "Consumers", the present complaint stands dismissed. Parties shall bear their own cost.
16. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
17. 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.
18. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
26.09.2022 DISMISSED PAGE 8 OF 8