State Consumer Disputes Redressal Commission
Sh. Aditya Vashisht vs Tdi Infrastructure Pvt. Ltd on 6 September, 2023
C/857/2019 D.O.D.: 06.09.2023
MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 06.09.2019
Date of hearing: 11.08.2023
Date of Decision: 06.09.2023
COMPLAINT CASE NO.-857/2019
IN THE MATTER OF
1. MR.ADITYA VASHISHT
S/O MR.ASHOK KUMAR VASHISHT,
2. MR. ABHISHEK VASHISHT
S/O MR.ASHOK KUMAR VASHISHT,
R/O H.NO.1 ASHOKA PARK, EAST PUNABI BAGH
NEW ROHTAK ROAD, NEW DELHI-110026
......Complainants in person
VERSUS
M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
THROUGH ITS MANAGING DIRECTOR
AT 9, KASTURBA GANDHI MARG
CONNAUGHT PLACE, NEW DELHI-110001
(Through: Mr. Ankit Khera along with Ms. Garima Khanna,
Advocates)
...Opposite Party
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C/857/2019 D.O.D.: 06.09.2023
MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HO'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Complainant in person
Mr. Ankit Khera, counsel for the Opposite Party
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 for the following reliefs:
a) "Direct the respondent to return the entire amount of Rs.
19,58,125/- deposited by the complainant with respondents in terms of the buyers' agreement alongwith interest @ 21% per annum from the date of deposit till the date of realization.
b) Direct the respondents to pay Rs. 5,00,000/- to the complainant towards compensation on account of the mental agony and harassment suffered by complainant at the handsof the Respondents; and
c) Award throughout cost of suit alongwith pleader's fees and all other charges in favour of complainant and against the respondents; and
d) d) Pass any other or further order which this Hon'ble Court deems fit, proper and expedite, in facts and circumstances of case, in favour of complainant, in the interest of justice"
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MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
2. Brief facts necessary for the adjudication of the present complaint are that Opposite Party no.1 through Opposite Party No.2-6 invited booking of residential plots in their future project named TDI City at Kundli, Sonepat, Haryana. Being allured with the representation made by the Opposite Party, one Ms. Poonam Arora booked a plot measuring 250 sq.yards in the said project and paid a total sum of Rs.3,87,500/- vide Cheque No.008160 dated 03.09.2005. Thereafter, Ms. Poonam Arora sold the receipt of the said plot to one Mr. Sachin Sethi. After completion of the formalities, the Opposite Party transferred the said plot in favour of Mr. Sachin Arora who also made further payments from time to time as per the payment plan opted. Subsequently, Mr.Sachin Sethi vide letter dated 29.01.2007 sold the said plot to the Complainants. The Opposite Party transferred the said booking in respect of the plot in favour of the Complainants and also made necessary changes in their record against payment of Rs.5000/- vide receipt no.TC-1225 dated 05.02.2007. Thereafter, the Opposite Parties vide their letter dated 10.12.2005 issued the Letter of Allotment and the Plot Buyers Agreement dated 22.09.2007 was executed in respect of the plot bearing no. L-729, measuring 250 sq.yds at TDI City, Kundli, Sonepat, Haryana. Subsequently, the Complainants, performing their part of the contract, made payments as per the schedule opted for, and made total payment except the registration amount payable at the time of receiving possession. As per the Plot Buyer's Agreement, it was represented by the Opposite Parties that the possession of the plot shall be handed over within reasonable time, ALLOWED PAGE 3 OF 11 C/857/2019 D.O.D.: 06.09.2023 MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD however, the Opposite Parties have failed to hand over possession till date.
3. On an inspection of the site, the Complainants were shocked to note that even after 9 years from the date of allotment, the Opposite Party has not started the plotting work at the site and the plot is not locatable as site is not at all developed. The Complainants have submitted that the Opposite Parties vide letter dated 22.05.2019 admitted that they shall not be able to deliver the plot due to reasons beyond their control and offered taking over an alternate ready for possession unit in the same unit or readjustment of entire deposit in any other project of the Opposite Party No.1. The Complainant have further submitted that even after the expiry of 15 years, the Opposite Parties have neither made provision of basic agreed facilities nor have handed over possession of the plot. It is submitted that the Complainant is made to run to pillar to post to get the possession and therefore such conduct amounts unfair trade practice and deficiency in service on part of the Opposite Parties.
4. During the course of proceedings, the Opposite Party No.1 was required to file its Written Statement and Evidence by way of Affidavit. However, despite giving multiple opportunities, the Opposite Party has failed to file the Written Statement & Evidence by way of Affidavit. Therefore, no credence can be given to the submissions of Opposite Party and the arguments of the Complainant remain unrebutted.
5. We have perused the material available on record and heard the counsels for the parties.
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MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
6. The fact that the Complainants were allotted a plot bearing no.L-729 of 250 sq.yards with the Opposite Party is evident from the Allotment Letter dated 10.12.2005 (Annexure 5). Payment to the extent of Rs. 19,58,125/- by the Complainants to the Opposite Party is evident from the receipts issued and Revised Annexure attached with the complaint. (pg 67, 70 & 73 of Annexure C-7).
7. The only question that falls for our consideration is whether the Opposite Party is liable for providing deficient services to the Complainant.
8. To resolve this issue we deem it appropriate to refer to the Revised Annexure dated 22.09.2007 (pg 64 of Annexure alongwith the Complaint) which is reproduced hereunder as :
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MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
9. A perusal of the aforesaid document clearly reflects that the Complainant has consistently made payments as and when demanded by the Opposite Party as per the payment plan since 19.08.2005 i.e. the date on which the first demand for payment was raised by the Opposite Party till 05.05.2006. A further perusal of the aforesaid document reflects that the balance due to the Complainants is nil and the Complainants have made the full payment to the Opposite Party except the amount which was to be paid at the time of possession.
10. We further deem it appropriate to refer to the letter dated 22.05.2019 of the Opposite Party reproduced hereunder as :
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MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
11. The aforesaid Letter clearly records the admission on part of the Opposite Party that on account of reasons beyond its control, the Opposite Party was unable to offer the plot to the Complainant even after roughly 14 years from the date of allotment i.e. 10.12.2005 till the date of the issuance of the aforesaid letter i.e. 22.05.2019, which clearly establishes the deficiency on part of the Opposite Party.
12. It is to be noted that plot in question was allotted to the Complainant on 10.12.2005 as is evident from then letter of allotment dated 10.12.2005 (Annexure C-5) reproduced hereunder as :
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MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
13. The Complainant has submitted that as per the Plot Buyers Agreement, the Opposite Party was to handover the possession within 24 months from the date of allotment. However, we are unable to find any material on record which suggests that the Opposite Party was bound to deliver the possession within 24 months from the date of possession.
14. In this regard, it is appropriate to refer to the recent pronouncement of Hon'ble NCDRC in the case of "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 ALLOWED PAGE 8 OF 11 C/857/2019 D.O.D.: 06.09.2023 MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved."
15. The aforesaid dicta makes it clear that if the possession is delivered beyond 42 or 48 months by the builder, then the deficiency on the part of the builder stands proved. In the present case, the Complainants were allotted the plot vide letter dated 10.12.2005. The Complainants have not been offered possession only till date i.e. even after expiry of more than 18 years from the date of allotment. Thus, it is established that the possession of the said flat has not been offered to the Complainant even after expiry of 46 months from the date of allotment. Therefore, the deficiency on the part of the Opposite party stands proved.
16. We also deem it appropriate to refer to Aashish Oberai vs. Emaar MGF Land Limited reported in I (2017) CPJ 17 (NC), wherein the Hon'ble National Commission has held as under:
"I am in agreement with the learned senior counsel for the Complainant that considering the default on the part of the Opposite Party in performing its contractual obligation, the Complainant cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.
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MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD
17. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite Party for no reason made the Complainant run pillar to post for no fault attributable to the Complainants, thus highly delaying the transfer of possession by nearly two decades.
18. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount of Rs. 19,58,125/- deposited by the Complainant with the Opposite Party along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 06.09.2023 (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 06.11.2023; C. Being guided by the principles as discussed above, in case the Opposite Party no.1 fails to refund the amount as per the aforesaid clause (A) on or before 06.11.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
19. 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 10 OF 11 C/857/2019 D.O.D.: 06.09.2023
MR. ADITYA VASHISHT VS M/S TANEJA DEVELOPERS & INFRASTRUCTURE LTD A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainant B. Rs. 50,000/- to the Complainant as litigation charges
20. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
21. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
22. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT ( J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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