State Consumer Disputes Redressal Commission
Vikas Bhutani vs M/S Tdi Infrastructure Ltd. on 4 August, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 30.07.2021
JUDGMENT PRONOUNCED ON: 04.08.2021
COMPLAINT NO. 944/2017
IN THE MATTER OF
VIKAS BHUTANI ....COMPLAINANT
VERSUS
M/S TDI INFRASTRUTURE LTD. ....OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. Bharat Arora, Counsel for the Complainant.
Ms. Yashodhara Gupta, Counsel for the Opposite Party.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The present Consumer Complaint has been filed before this Commission under Section 17 of the Consumer Protection Act, 1986, by Mr. Vikas Bhutani (hereinafter referred to as "Complainant") against M/s TDI Infrastructure Ltd. (hereinafter referred to as "Opposite Party") seeking the following reliefs:-
A. "Direct the Opposite Party to make the payment of the amount paid i.e. Rs.14,15,251/- (Rupees Fourteen CC 944/2017 Page 1 of 16 Lacs fifteen Thousand Two Hundred and Fifty one) along with interest @24% per annum from 15.06.2009 till the date of payment ;
B. Direct the Opposite Party to Rs. 20,00,000/- (Rupees Twenty Lacs only) towards compensation, deficiency in services, mental tension, agony, harassment, hardship, financial loss and inconvenience ;
C. Direct the Opposite Party to pay Rs.2,00,000/- as cost of litigation, or D. Pass any other or further order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case and in the interest of justice in favour of the Complainant and against the Opposite Party."
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant applied for booking of a residential plot in the Opposite Party's project namely "TDI City" located at Tuscan city, Kundli, Sonepat, Haryana and paid registration advance of Rs. 8,50,000/- vide two pay orders numbering 081128 & 261915 dated 30.05.2009 & 03.06.2009 respectively.
3. Subsequently, the Complainant was allotted T-38, Ground floor admeasuring 1164 sq.ft. in an another project namely "Tuscan Floors in TDI Tuscan City", located in Sonepat, Haryana. Pursuant to the aforesaid allotment, the Parties entered into a Independent Floor/Apartment Buyer's Agreement (hereinafter referred to as "Agreement") on 28.02.2011. The basic sale price was agreed between the parties at Rs. 27,50,000/-.
4. Subsequent to this, the Complainant time and again made regular payments towards the aforesaid plot. The Complainant has made a CC 944/2017 Page 2 of 16 total payment of Rs. 14,15,251/- till the time of filing the present complaint.
5. On a visit to the project site in 2016, the Complainant was shocked to see that the progress in construction even after a lapse of substantial period of time. Aggrieved by this, the Complainant inquired about the delay caused through various office visits. However, dissatisfied with the response and evasive attitude of the executives of the Opposite Party, the Complainant then got served a legal notice dated 18.04.2017, upon the Opposite Party and sought refund of the amount deposited along with compensation for the mental agony caused. The Opposite Party reverted to the aforesaid legal notice vide its reply dated 02.05.2017 and vehemently referred to the delay caused due to circumstances beyond their control.
6. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant approached this commission.
7. 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 plot has been purchased solely for the purpose of investment, merely for "Commercial Purpose", hence, the Complainant is not a Consumer within the provisions of the Consumer Protection Act, 1986 ; (b) that since the Complainant is seeking recovery of money, the present complaint is nothing but a suit for recovery, which is beyond the jurisdiction of this commission and can only be decided by a Civil Court; (c) that the present complaint is not maintainable because it is beyond the Territorial jurisdiction of this Commission; (d) that due to the presence of the Arbitration clause in the agreement, any dispute CC 944/2017 Page 3 of 16 arising due to the agreement is to be referred to an Arbitrator ; (e) that the present complaint is not maintainable as the complaint is filed beyond the limitation period as prescribed under the Consumer Protection Act, 1986 ; (f) that the Complainant has 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.
8. The Complainant filed his Rejoinder rebutting the written statement filed by the Opposite Party. 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 were heard.
9. We have heard the counsel for the parties and perused through the material on record.
10. The fact that the Complainant had booked a plot 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. 14, 15, 251/- paid by the Complainant, hence, the same stands unrebutted.
11. 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
12. The next 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 Clause 2 of the Consumer Protection Act, 1986 which provides as under:
CC 944/2017 Page 4 of 16"17 (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
(c) the cause of action, wholly or in part, arises."
13. 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.
14. The issue with respect to territorial jurisdiction in case of a consumer complaint has been dealt with by this commission in a series of judgments wherein it has been held that this Commission is empowered to entertain a consumer complaint against a person/company whose Registered Office is situated within the territory of NCT of Delhi. (Reference: CC-1375/2016 titled Mr. CC 944/2017 Page 5 of 16 Raghavendra Rengaswamy vs. M/s ORS Infrastructure Pvt. Ltd decided on 25.03.2021, CC-621/2016 titled Abhaya Srivastava & Anr. vs. M/s Supertech Ltd. decided on 09.03.2021).
15. In the present case, the registered office of the Opposite Party is at 10, Shaheed Bhagat Singh Marg, Connaught Place, which falls within the territory of Delhi, hence, this commission is not paralyzed from entertaining the present consumer complaint for want of territorial jurisdiction.
PERIOD OF LIMITATION
16. 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."
17. Analysis of Section 24A of the Consumer Protection Act, 1986 shows that this commission is empowered to admit a complaint if it is filed CC 944/2017 Page 6 of 16 within a period of 2 years from the date on which cause of action has arisen.
18. At this juncture, 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 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."
19. Applying the aforesaid law, in the present case also, since the possession of the plot has not been delivered to the Complainant, the cause of action continues to subsist in favour of the Complainant and the present complaint is within the period of limitation. WHETHER THE CIVIL COURT HAS JURISDICTION -
JURISDICTION OF CONSUMER COMMMISSION BARRED?
20. The Opposite Party has also contended that the jurisdiction of this Commission would be barred in view of the fact that the present complaint is in fact a suit for recovery on which court fees is payable CC 944/2017 Page 7 of 16 and would lie in a Civil Court and the Complainant in order to save the payment of court fees has filed the complaint under the Consumer Protection Act, 1986. Moreover, the complicated question of facts and law which have been raised in the present complaint can only be decided before the Civil Court.
21. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are effected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
22. The Consumer Protection Act, 1986 defines a Consumer as follows:
"(2)
(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 CC 944/2017 Page 8 of 16 person who avails of such services for any commercial purposes;
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;"
23. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2) (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. Returning to the facts of the present complaint, the perusal of the record shows that the Complainant entered into an agreement to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honour the terms of the agreement, aggrieved by which, the Complainant has sought the refund of the amount paid by him. Hence, the Complainant is entitled to file the present complaint before this commission since the Complainant is aggrieved by the deficient services of the Opposite Party i.e. the failure of the Opposite Party to handover the possession within a reasonable time period and it is only due to this reason, that the refund of the amount paid is sought from the Opposite Party, which this Commission is authorized to adjudicated.
25. Our view is further fortified by the dicta of Hon'ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that when a CC 944/2017 Page 9 of 16 person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers.
26. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties.
27. Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the Opposite Party.
COMPLAINANT- A CONSUMER OR NOT?
28. The Opposite Party has further contended that the Complainant is not a Consumer as defined under the Consumer Protection Act, 1986 since the plot was purchased for investment, which constitutes commercial purpose.
29. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled as 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:
CC 944/2017 Page 10 of 16"19. The contention of the Learned Counsel that the said Apartments were purchased for commercial 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."
30. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the flat/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 Complainant.
31. In the present case also, the Opposite Party has merely made a statement that the Complainant purchased the flat for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainant is 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 Party in answered in the negative.
EXISTENCE OF ARBITRATION CLAUSE IN THE AGREEMENT
32. The first preliminary objection raised by the Opposite Party is that since there exists an Arbitration clause in the agreement, the parties should be referred to arbitration and this commission is barred from CC 944/2017 Page 11 of 16 exercising its jurisdiction. The Opposite Party has relied on Clause 59 of the Agreement, which is reproduced below for ready reference:-
"59. Any dispute, controversy, or claim arising between the parties to this Agreement out of or relating to this agreement, including their respective rights and obligations contained herein, or the breach, termination, or invalidity of this Agreement, or relating to interpretation of any provisions herein, such differences or disputes or matters shall be submitted for arbitration to a sole Arbitrator appointed by the Company who shall decide the same in accordance with the Arbitration and Conciliation Act, 1996 and any other statutory modifications or re enactment thereof. The language to be used in the arbitration shall be English. The arbitration proceedings shall be held in Delhi. Each party further agrees that it shall not commence or maintain any suit for legal proceeding concerning a dispute hereunder until such dispute has been finally settled in accordance with the arbitration procedure provided for herein"
33. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), wherein the Apex court has held as under:-
"55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
34. The Hon'ble Apex Court has put to rest the controversy relating to the existence of Arbitration clauses in the allotment letter/apartment CC 944/2017 Page 12 of 16 buyer agreement etc. as is evident from the relevant paragraph of Emaar MGF Land Limited (supra). In the present case also, the Complainant has opted for the special remedies provided under the Consumer Protection Act, 1986 therefore, this commission can refuse to relegate the present case to the arbitration. Hence, this commission is authorized to adjudicate the case and the existence of an arbitration clause in the agreement does not affect the jurisdiction of this commission.
DEFICIENCY OF SERVICE
35. Having discussed the maintainability of the present complaint, the next issue to be adjudicated is whether the Opposite Party is actually 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 16 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 CC 944/2017 Page 13 of 16 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 present case is guilty of a delay of years in the fulfilment of a contractual obligation."
36. Returning to the facts of the present case, the record reflects that the agreement was entered between the parties on 28.02.2011 and even at the time of filing the present complaint, the Opposite Party had failed to deliver possession of the plot.
37. On this aspect, the written statement filed by the Opposite Party manifests that the project is nearing completion and the possession shall be offered shortly. However, it is settled law that the Complainant 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).
38. Consequently, we hold that the Opposite Party is deficient in providing its services to the Complainant since it has failed to handover the possession of the plot within a reasonable time period and the Complainant is entitled for the refund of the money deposited by him to the Opposite Party.
CONCLUSION
39. Keeping in view the facts of the present case, we allow the following reliefs as prayed for by the Complainant:
CC 944/2017 Page 14 of 16I. We direct the Opposite Party to refund the amount of Rs. 14, 15, 251 /- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date of each instalment/payment received by the Opposite Party till 04.08.2021 (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 30.09.2021;
C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 30.09.2021, 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. 1,00,000/- as cost for mental agony and harassment;
B. And the litigation cost to the extent of Rs. 50,000/-.
40. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
41. 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.
CC 944/2017 Page 15 of 1642. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
04.08.2021 CC 944/2017 Page 16 of 16