State Consumer Disputes Redressal Commission
Soofia Rahman Shariq & Anr. vs Mr. Jamil Ahmed Khan (Cmd) & Anr. on 3 July, 2023
CC.NO. 616/2018 D.O.D.: 03.07.2023
SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 17.05.2018
Date of hearing: 20.04.2023
Date of Decision: 03.07.2023
COMPLAINT CASE NO.- 616/2018
IN THE MATTER OF
1. SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ
FLAT NO. 703, TOWER 6,
PURVANCHAL SILVER CITY 2
SECTOR Pi 2, GREATER NOIDA-201310
...COMPLAINANT
VERSUS
1. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
HEAD OFFICE & DELHI REGD:
G-74, FIRST FLOOR, SAMIAH PLACE,
SARITA VIHAR ROAD, SHAHEEN BAGH,
NEW DELHI-110025 (INDIA).
2. MR. SANGEER KHAN (DIRECTOR)ALSO AT:
G-74, FIRST FLOOR, SAMIAH PLACE,
SARITA VIHAR ROAD, SHAHEEN BAGH,
NEW DELHI-110025 (INDIA).
3. MR. JAMIL AHMED KHAN (CMD)
G-74, FIRST FLOOR, SAMIAH PLACE,
ALLOWED PAGE 1 OF 14
CC.NO. 616/2018 D.O.D.: 03.07.2023
SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
SARITA VIHAR ROAD, SHAHEEN BAGH,
NEW DELHI-110025 (INDIA).
(Through: Asghar Khan & Associates, Advocate)
...OPPOSITE PARTY
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR.J.P.AGRAWAL, MEMBER (GENERAL)
Present: Ms. Soofia Rahman Shariq along with Mr. Mohammad
Shariq, Complainant in person.
None for the OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present has been filed by the Complainants before this commission alleging deficiency of service by the Opposite Party and has prayed the following:
a) Direct the Opposite Party to allot a 2 BHK flat in 'Bharat Overseas Castle' without any escalation charges in the tower 1 that is under construction and will start delivery in June 2018, if not;
b) Direct the Opposite Party to grant to the Complainant the invested amount of Rs. 9,20,000/- @ Return on Investment of 50% totalling Rs. 13,80,000/- in Oct 2008 would be worth Rs. 42,86,071 @ 12% Compounded interest for 10 Years, the ALLOWED PAGE 2 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
Hon'ble Court direct the Opposite Party to pay an amount of Rs. 42,86,071/- immediately;
c) Direct the Opposite Party to pay the a compensation of Rs. 5,00,000/- to the Complainant for the mental pressure and the hassle ,as the loss suffered by him since the last 10 years and the compensation be awarded to the Complainant by the Opposite Party with immediate effect;
d) Direct the Opposite Party to grant cost of litigation in favour of the Complainant;
e) Pass any other order or further orders that may deem fit and just by this Hon'ble court in this regard in favour of the complainant and against the opposite party.
2. Brief facts necessary for the adjudication of the present are that Complainants who were NRIs working in UAE, entered into a Memorandum of Understanding dated 01.10.2007 with the Opposite Party under the 'Buy Back' scheme and bought two plots each measuring 115 sq. yd. in "Samiah NCR village", situated at Bulandhshar road, NH-24, Hapur for a total consideration amount of Rs.9,20,000/- via cheque dated 24.09.2007. As per the Buy Back Scheme the Complainants were assured a Return on Investment of 50% per annum on the paid basic sales price. The Complainant could exercise the option of returning the property back to the promoter at the assured appreciation of 50% after a term of 1 year on the paid basic sales price at which the property was purchased. Alternatively, could also retain the plot by registering it in our name or resale the plot in the market. The Opposite Party was to provide the sum of Rs.13,80,000 at the end of 1 year under the buy-back option. The Complainants during their ALLOWED PAGE 3 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
visit to India in 2008 and 2009 went to the office of the Opposite Party but The Opposite Party refused to payback Rs. 13,80,000 neither did the Opposite Party register the plots in name of the Complainants. The CMD, Mr. Jamil Ahmed Khan, as representative of the Opposite Party, offered the Complainants a flat of 2 BHK instead of the two plots in Hapur in lieu of Rs. 13,80,000 which the Opposite Party failed to pay, to which the Complainants agreed. An allotment letter was issued on 12.08.2010 through which flat bearing no. 701 on 7th Floor, Type Dafodil, Block-C of area 1200 sq. ft. in Samiah Residency in Amrapali Yojana on Hardoi Raod, Lucknow was allotted. Subsequently, the Complainants were informed that the "Samiah Residency" has been renamed as "Bharat Overseas Castle" and construction of the said project was halted to due farmers agitation. Thereafter, the Complainants were informed that due to the delay caused by the farmer's agitation, an escalation charges of Rs. 500/sq.ft. shall be imposed by the Opposite Party.
3. The Complainants have submitted that various requests were made to the Opposite Party not to charge escalation charges as the Builder Buyer Agreement clearly stated that the flat in question shall be free from escalation charges but escalation charges were imposed by the Opposite Party. It is further submitted that the Complainants have already paid the entire consideration amount in 2007 for the Hapur plots in lieu of which the flat in question was offered to the Complainants, thus the Opposite Party is not entitled to demand any further charges.
4. Moreover, the Complainants visited the Opposite Party's office in Lucknow in February 2018 and were shocked to know that their name is not on the allottee's list and were asked to get in touch with Mr. Sageer at the Head office in Noida as he had allotted the original agreements for Samiah ALLOWED PAGE 4 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
Residency. The Complainants tried to connect with the Opposite Party several times, but the Opposite Party rarely responded. Aggrieved by the aforesaid conduct of the Opposite Party, Complainants approached this Hon'ble Commission for resolution of their grievances.
5. The Opposite Party has filed its reply and has raised preliminary objections as to the maintainability of the Complaint therein. The Opposite Party has contended that the Complaint is not maintainable for want of territorial and pecuniary jurisdiction. It is further submitted that the Complainants purchased the said plots for investment/ commercial purposes and are therefore excluded from the definition of a Consumer as is defined under section 2(1)(d) of the Consumer Protection Act,1986.
6. During the course of the proceedings, the Opposite Party was required to file its evidence by way of Affidavit. However, despite giving multiple opportunities the Opposite Party failed to file its evidence and written arguments. Therefore, right of the Opposite Party to file evidence by way of affidavit as well as written arguments was closed vide order dated 20.04.2023. The Complainants have filed their Evidence by way of Affidavit in order to prove their averments.
7. We have perused the material available on record and heard the counsel for the Complainants.
8. The fact that the Complainants booked two plots with the Opposite Party is evident from the Memorandum of Understanding dated 01.10.2007. Allotment of another flat in lieu of the two plots is evident from the letter dated 12.08.2010. Payment to the extent of Rs. 9,20,000/- has been made by the Complainants which is evident from the receipts issued by the Opposite Party attached with the present complaint.
ALLOWED PAGE 5 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023
SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
9. The first question that falls for our consideration is whether the Complainants fall in the category of 'consumer' under the Consumer protection Act, 1986?
10. The Opposite Party has contended that the Complainant is not 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 Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. .......A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
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 under:
"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 ALLOWED PAGE 6 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
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 flat 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 Complainant.
13. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the plots for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainants are 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 flats. 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 is answered in the negative.
14. The next question for adjudication before us is whether the Complainant has cause of action to approach this commission?
15. The facts reveal that the Complainants were allotted a flat bearing no. 701 on 7th Floor, Type Dafodil, Block-C of area 1200 sq. ft. in Samiah Residency in Amrapali Yojana on Hardoi Raod, Lucknow in lieu of two plots of 115 sq.yd in Samiah NCR Village, situated at Bulandshahar Road, NH-24, Hapur and also paid an amount of Rs. 9,20,000/- towards the total consideration amount. However, the Opposite Party failed to complete the construction of the said flat nor the possession of the said flat has been handed over to the Complainants.
ALLOWED PAGE 7 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023
SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
16. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon'ble National Commission has held as under:
"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."
17. Applying the above settled law, it is clear that the Complainants are within their right to file the present as the possession and completion of construction are still pending and has not seen the light of the day; giving the Complainant a recurrent cause of action to file the present complaint.
18. The next question that falls for our consideration is whether this Commission has the Territorial Jurisdiction to adjudicate this Complaint?
19. We deem it appropriate to refer to Section 17(2) of the Consumer Protection Act, 1986 which provides as under:
"(2) A 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 ALLOWED PAGE 8 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
(c) the cause of action, wholly or in part, arises."
20. Analysis of Section 17 of the Consumer Protection Act, 1986 leads us to the conclusion that clause 17(2) of the Act provides the extent of territorial jurisdiction, wherein it has been provided that the state commission shall have the 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.
21. Having discussed the statutory position, the facts of the present case reflect the registered office of the Opposite Party is at G-74, 1st Floor, Samiah Place, Sarita Vihar Road, Shaheen Bagh, New Delhi-110025 (India). Since the registered office falls within the territory of Delhi, this Commission has the territorial jurisdiction to adjudicate the present case.
22. The next question that falls for our consideration is whether this Commission has Pecuniary Jurisdiction to adjudicate the present Complaint?
23. In this regard, 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....."
24. 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 ALLOWED PAGE 9 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
is more than twenty lakhs and less than One Crore. The Complainant has sought a refund of invested amount of Rs.13,80,000/- @ 12% compounded interest for 10 years totalling to Rs.42,86,071/- alongwith compensation of Rs.5,00,000/-.which falls within the pecuniary jurisdiction of this Commission.
25. Having dealt with the preliminary objections, the main question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainants.
26. At the outset, it is to be noted that the Opposite Party failed to payback Rs. 13,80,000 as assured Return on Investment neither the Opposite Party was willing to register the property in name of the Complainants. 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 ALLOWED PAGE 10 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
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 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.
27. At this stage, we deem it appropriate to refer to letter dated 24.04.2014. (Annexure A-5 alongwith the Complaint) wherein the Opposite Party has clearly assured the Complainant that the construction work has been restarted and shall be completed within 36 months. Moreover, the said letter also reflects the "Due Amount as per payment schedule" to be Rs.0/. However, the Opposite Party failed to complete the construction and handover possession to the Complainants even after lapse of almost a ALLOWED PAGE 11 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
decade. Secondly, it is to be noted that the Opposite Party has further unreasonably demanded escalation charges from the Complainants. A perusal of the record reflects that the Complainants were asked to pay an escalation charges of Rs. 500/sq.ft. due to the delay caused by the farmer's agitation, and later the Complainants were informed that their name was not on the allottee list. In this regard we deem it appropriate to reproduce Clause 1.2 of the "Builder Buyer Agreement" hereunder as:
ALLOWED PAGE 12 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023
SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
28. The aforementioned clause clearly reflects that as per the agreement, the property in question is free from escalation charges. Furthermore, as is evident from the receipts on record and the letter dated 24.04.2014. (Annexure A-5 along with the Complaint), the Complainants had paid the consideration amount in full. It is pertinent to note that the Opposite Party offered to allot the said 2BHK flat in lieu of the 2 plots in Hapur in 2007 which it failed to provide under the agreement formerly entered into with the Complainants in 2007. Thus, the total cost of the flat in question was already fully covered by the Complainants' investment in the Hapur plots, the agreement which was not fulfilled by the Opposite Party.
29. In light of the aforesaid discussion, 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 Complainants with respect to the time for completing the construction of the said flat and kept the hard-earned money of the complainant for about 10 years.
30. 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 paid by the Complainants i.e., Rs. 9,20,000/- along with interest as per the following arrangement:
A. An interest calculated from the date on which each installment/payment was received by the Opposite Party till 03.07.2023 (being the date of the present judgment);
B. The rate of interest payable is simple interest of 6% per annum C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount on or before 03.09.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each ALLOWED PAGE 13 OF 14 CC.NO. 616/2018 D.O.D.: 03.07.2023 SOOFIA RAHMAN SHARIQ & MOHAMMAD SHARIQ VS. M/S. SAMIAH INTERNATIONAL BUILDERS PVT. LTD.
installment/payment was received by the Opposite Party till the actual realization of the amount.
31. 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 :
A. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
32. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
33. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
34. 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:
03.07.2023 ALLOWED PAGE 14 OF 14