State Consumer Disputes Redressal Commission
Lalit Khurana vs M/S Shreya Developers & Ors. on 11 January, 2023
CC. NO.405/2013 MR. LALIT KHURANA VS. M/S SHREYA DEVELOPWELL PVT. LTD. D.O.D.: 06.03.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 11.07.2013
Date of Hearing: 11.01.2023
Date of Decision: 06.03.2023
COMPLAINT CASE NO. - 405/2013
IN THE MATTER OF
MR. LALIT KHURANA
R/O D- 73, INDERPURI,
NEW DELHI- 110012
(Through: Mr. G.P. Sah, Advocate)
...Complainant
VERSUS
1. M/S SHREYA DEVELOPWELL PVT. LTD.
THROUGH ITS DIRECTOR,
124- AGCR ENCLAVE,
NEAR KARKARDOMA COURT, DELHI.
...Opposite Party no.1
2. PNB HOUSING FINANCE LIMITED.
9th FLOOR, ANTRIKSH BHAWAN,
KASTURBA GANDHI MARG,
NEW DELHI- 110001
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CC. NO.405/2013 MR. LALIT KHURANA VS. M/S SHREYA DEVELOPWELL PVT. LTD. D.O.D.: 06.03.2023
(Through: Sanjeev Singh & Associates)
...Opposite Party no.2
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. G.P. Shah, counsel for the Complainant.
Opposite Party no. 1 is already proceeded ex- parte vide
order dated 27.01.2022.
Ms. Sakshi Bhalla, proxy counsel for Mr. Shilpy Sobti,
counsel for the Opposite Party no. 2.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGEMENT
1. The present Complaint has been filed before this Commission under Section 12 of the Consumer Protection Act, 1986, by the Complainant alleging deficiency in service on the part of Opposite Party and has prayed for the following reliefs:
"I. To the Opposite Party no. 1 to delivered the possession of flat to the Complainant either in Jasmine- I or Jasmine- II, in Hindon Height, at Noor Nagar, NH- 58, Rajender Nager, Ghaziabad, U.P. II. To the Opposite Party No.1 to pay bank loan instalments from the date of filing the present complaint.
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III. To the Opposite Party no.2 to do not take any legal proceeding or adverse action against the Complainant during the pending complaint before this Hon'ble commission.
IV. To pay Rs. 5,00,000/- towards the compensation for metal & physical harassment caused to the Complainant. V. To pay Rs. 25,000/- costs of this complaint and other expenses.
VI. Pass any other order in the given circumstances of this case which this Hon'ble Forum deems fit and proper in the interest of justice."
2. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked a flat bearing no. 507 in the project "Hindon Height" in building named Jasmine- II of the Opposite Party no.1 situated at Ghaziabad, Uttar Pradesh. Thereafter, the Opposite Party no.1 issued allotment letter dated 21.05.2008 with terms and conditions. The Complainant also took loan of Rs. 18,45,000/- from the PNB Bank and according, a Tripartite Agreement was executed between the parties on 21.04.2008, which was duly paid to the Opposite Party no.1. The Opposite Party no.1 assured the Complainant to hand over the possession of the said flat within one year. However, the possession of the said flat has not been handed over till date. More so, in the month of November' 2012, the Complainant was shocked to know that the Opposite Party no.1 failed to develop any building called Jasmine - II in the said project. Therefore, the Complainant also sent legal notice dated 02.04.2012 to the Opposite Party no.1 asking for possession of the said flat or in alternative refund of the amount alongwith interest.
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Upon receiving said notice, the Opposite Party no.1 again assured that the it will complete the said project within one year but failed to do so till date. Thus, left with no other option, the Complainant approached this Commission alleging deficiency of service on the part of Opposite Party no.1.
3. During the course of proceedings, vide order dated 23.03.2017, notice was issued to the Opposite Party no.1 at the fresh address as provided by the Complainant. However, the notice was received back as refused on 24.11.2017. Consequently, the Opposite Party no.1 was proceeded ex-parte vide order dated 24.11.2017. Since the Opposite parties were proceeded ex-parte by this commission, the averments made by the Complainant in the present case remains unrebutted.
4. The Opposite Party no. 2, on the other hand, has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party no.2 submitted that the Complainant has failed to establish or disclose any cause of action against the Opposite Party no.2. The counsel for the Opposite Party no.2 further submitted that the amount credited in the loan account of the Complainant is being paid by the Opposite Party no.1 and not by the Complainant. It was also submitted that an amount of Rs. 18,82,907/- is still outstanding and the Complainant is liable to pay the Opposite Party no. 2.
5. The Complainant has filed his Rejoinder rebutting the written statement filed by the Opposite Party no.2. Thereafter, both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.
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6. We have heard the counsel appeared on behalf of Complainant and Opposite Party no.2 and perused the material available on record.
7. The fact that the Opposite Party no. 1 allotted the said flat vide allotment letter dated 21.05.2008 to the Complainant is evident from the Annexure on the page 14 of the Complaint. The Complainant has made payment to the extent of Rs. 22,80,000/- to the Opposite Party no.1 is also evident from the copy of receipts (Annexure on page 9, 10 & 11) of the present complaint.
8. The first issue to be adjudicated is whether the Complainant has cause of action to approach this commission. 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."
9. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that this commission is empowered to admit a complaint if it is filed within a period of two years from the date on which cause of action has arisen. In the present case neither ALLOWED PAGE 5 OF 11 CC. NO.405/2013 MR. LALIT KHURANA VS. M/S SHREYA DEVELOPWELL PVT. LTD. D.O.D.: 06.03.2023 possession of the said flat in question has been delivered, nor the amount deposited by the Complainant has been refunded till date. 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."
10. Applying the above settled law, it is clear that failure to deliver possession being a continuous wrong which constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to the Complainant. The Complainant is within their right to file the present complaint before this commission.
11. The next issue which arises is whether the Opposite Party no.1 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 (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.
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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. 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.
12. In the present case, the Complainant contended that Opposite Party no.1 assured him to hand over the possession of the said flat within a year of booking. However, we failed to find any provision regarding as to time under which the Opposite Party no.1 has to handover the possession of the flat in question to the Complainant. To resolve the said issue, we deem it appropriate to refer to "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:
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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 possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved."
13. Relying on the above settled law, if the possession is delivered beyond the 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party no.1 shall stand proved. In the present case, it is clear that the Opposite Party no.1 failed to handover the possession of the flat in question even after the passing of more than fourteen years from the date of booking. Therefore, the Opposite Party no.1 is deficient in providing its services to the Complainant as the Opposite Party no.1 had given false assurance to the Complainant with respect to handing over the possession of the said flat said project and had kept the hard-earned money of the Complainant.
14. Furthermore, Opposite Party no.2 contended that the Complainant is liable to pay Rs. 18,45,907/- which is outstanding along with the interest thereon. However, it is clear from the record that the Complainant was paying EMI regarding the said loan to the ALLOWED PAGE 8 OF 11 CC. NO.405/2013 MR. LALIT KHURANA VS. M/S SHREYA DEVELOPWELL PVT. LTD. D.O.D.: 06.03.2023 Opposite Party no.2 but it was for Opposite Party no.1 to complete the constriction of the said flat within reasonable time. More so, as per clause 10 of the Triparty Agreement dated 21.05.2011, wherein it is mention that in the event of default of instalment by the Complainant, the Opposite Party no. 1 shall be bound to refund the entire amount deposited by the Complainant (Annexure on page 30 & 31 of the Complaint).
15. Keeping in Now, we have to decide whether refund can be awarded in the present case as the Complainant had prayed for possession of the said flat. On this point, we deem it appropriate to refer to Parsvnath Exotica Resident Association Vs Parsvnath Developers Ltd. & Ors. reported in IV (2016) CPJ 328 (NC), wherein the Hon'ble National Commission has held as under:-
"Though, in Consumer Complaint No. 45 of 2015, the main prayer made by the Complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the file deed in their favour, when this matter came up for hearing on 27.4.2016, the learned Counsel for the Complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them. The learned Counsel for the Opposite Party submitted in this regard that no prayer for refund has been made in Consumer Complaint No. 45 of 2015. In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case."
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16. Relying on the above settled law, it is clear that this commission, even in absence of specific prayer, can grant a relief which is justified and warranted in the facts and circumstances of the case. On perusal of record before us, we find that the Opposite Party no.1 failed to hand over the possession of the said flat even after receiving the amount of Rs. 22,80,000/-. In these circumstances, it appears that the Opposite Party no.1 is not in a position to handover the flat in question to the Complainant. Therefore, as per the facts and circumstances of the present case, we are of the view that it is justified to refund the amount already paid by the Complainant.
17. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party no.1 to refund the entire amount paid by the Complainant i.e., Rs. 22,80,000/- along with interest as per the following arrangement:
A. A simple interest @ 11% p.a. (Interest on which loan taken) calculated from the date on which each installment/payment was received by the Opposite Party no.1 till 06.03.2023(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 no.1 pays the entire amount on or before 06.05.2022;
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 06.05.2023, the entire amount is to be refunded along with a simple interest @ 13% p.a. calculated from the date on which each installment/payment was received by the Opposite Party no.1 till the actual realization of the amount.
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18. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party no.1 is directed to pay a sum of A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
19. The Opposite Party no.2 is directed not to raise any demand from the Complainant till the amount is refunded to him by the Opposite Party no.1.
20. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
21. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulation, 2005. 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 (PINKI) MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced On:
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