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State Consumer Disputes Redressal Commission

Rajni Jain vs M/S Tdi Infrastructure Ltd. on 28 July, 2021

          IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
                           COMMISSION

                                          JUDGMENT RESERVED ON: 20.07.2021
                                       JUDGMENT PRONOUNCED ON: 28.07.2021

                                 COMPLAINT NO. 238/2019

     IN THE MATTER OF

     SMT. RAJNI JAIN                                             ...... COMPLAINANT

                                            VERSUS

     M/S TDI INFRASTRUCTURE LTD.                               ......OPPOSITE PARTY

     CORAM:
     HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
     (PRESIDENT)
     HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
     Present: Mr. Mohit Jain, Counsel for the complainant.
              Mr. Vaibhav Agnihotri, Counsel for the opposite party.

     PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
                PRESIDENT
                                      JUDGMENT

[Via Video Conferencing]

1. The present complaint, being returned from the District forum vide order dated 27.08.2018 on the ground of pecuniary jurisdiction, has been filed by Smt. Rajni Jain (hereinafter referred to as 'complainant') against M/s TDI Infrastructure Ltd. (hereinafter referred to as 'opposite party) and has prayed the following reliefs:-

a) To immediately allot alternative flat on the block and deliver the possession of the same.

b) To pay Rs. 1,50,000/- towards cost of litigation.

c) To pay Rs. 4,00,000/- towards compensation for faulty and imperfect services and also for adopting unfair trade practices.

d) To pay Rs. 4,50,000/- towards compensation for mental agony and harassment to the complainant.

e) To direct OP to discontinue the unfair trdae practice and not to repeat it.

f) Any other relief in favour of the complainant and against the OP as deemed fit by this Hon'ble forum under the facts and circumstances of the matte/case.

2. Brief facts necessary for the adjudication of the present complaint are that the complainant vide application form dated 22.02.2006 booked a residential flat in the project of the opposite party named "TDI City"

situated at Kundli, Sonepat and paid Rs. 3,00,000/- as application money. As per clause (a) of the application form, the provisional allotment was to be made within 6 months by the opposite party from the date of encashment of application money. The allotment letter was issued after delay on 15.05.2009 by the opposite party, for a flat bearing no. U4-0802. In December, 2011 complainant received a letter dated 30.12.1899 from the opposite party stating that due to unavoidable circumstances the said tower height was reduced and an alternate allotment in existing towers was offered. The said letter was dated 30.12.1899 but stated that the complainant had to approach the opposite party on or before 19.10.2011, which had already passed. Thereafter, the complainant visited the office of the Opposite Party and Opposite Party promised to give him possession within six months. However, neither the allotment letter for alternate flat was issued nor the possession of the flat was given by the opposite party till date.

The complainant over the time had paid Rs. 10,25,223/- to the opposite party as and when demanded by him.

3. Alleging deficiency in service and unfair trade practice on the part of opposite party, the complainant has approached this commission.

4. The Opposite Party has contested the present case and has raised some preliminary objections as to the maintainability of the complaint case. The counsel on behalf of the Opposite Party submitted that the complainant is not "Consumer" as defined under the Consumer Protection Act, 1986 as the complainant had invested her money to gain commercial profit and the present complaint is barred by limitation as per section 24A of the Consumer protection Act, 1986.

5. The counsel for the Opposite Party submitted that the alternate allotment was offered vide letter dated 30.12.1899 (typographical error) but the complainant failed to accept the offer within the prescribed period and therefore, the allotment of the complainant was cancelled. The opposite party further submitted that they are willing to hand over the flat even today in another tower subject to the payment of outstanding dues by the complainant.

6. The counsel for the opposite party submitted that the complainant can neither ask for refund at the stage of final arguments nor go beyond his prayer clause. He relied on Revision petition no. 3295 of 2012 titled as Municipal Corporation Ratlam Vs. Vimpi Chhabra. Pressing the aforesaid preliminary objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.

7. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.

8. We have perused the material available on record and heard the arguments of both the parties.

9. The fact that the complainant had booked a flat with the Opposite Party vide application form dated 22.02.2006 is not in dispute from the evidence on record. Payment to the extent of Rs. 10,25,223/- by the complainant to the Opposite Party is also evident from the statement of account attached with the complaint.

10. Before delving into the merits of the case, we deem it appropriate to adjudicate the preliminary objections raised on behalf of the Opposite Party.

WHETHER THE PRESENT COMPLAINT IS BARRED BY LIMITATION?

11. The first question of adjudication before us is whether this 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."

12. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that this commission is empowered to admit a CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 4 of 12 complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. 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."

13. Returning to the facts of the present case, it is clear that the possession of the flat in question have still not been handed over by the opposite party to the complainant. Applying the above law it is clear that the complainant has a recurrent cause of action till the possession of the flat is not handed over to them. Therefore, the present complaint filed by the complainant is within the period of limitation.

WHETHER COMPLAINANT FALLS IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?

14. The Opposite Party has contended that the complainant is not a Consumer as defined under the Consumer Protection Act, 1986 as the complainant had invested her money in the real estate in order to gain profit and the same amounts to commercial purpose.

15. We deem it appropriate 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 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."

16. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the flat was purchased for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant.

17. In the present case, the Opposite Party has merely made a statement that the Complainant had invested her money to gain profit through real estate 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 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.

DEFICIENCY OF SERVICE

18. Having discussed the preliminary objections raised on behalf of the Opposite Party, the next issue which arises is whether the Opposite Party is actually deficient in providing its services to the complainant or not. The expression Deficiency of Service has been dealt with by CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 6 of 12 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 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 CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 7 of 12 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.

19. Perusing the above settled law, it is clear that failure of builder in complying with his obligations within the stipulated period amounts to deficiency of service on the part of builder. Returning to the facts of the present case, we find that as per clause (a) of the application form dated 22.02.2006 the opposite party had to allot the flat within the period of 6 months from the encashment of application money. The Opposite party encashed the application money on 28.02.2006. However, the allotment was given by the opposite party on 15.05.2009, which is beyond the stipulated period of about 2 years.

20. On perusal of record before us, we also find that the letter by which the alternate allotment was offered by the opposite party is antedated i.e. 20.12.1899 and it is clear that the opposite party is only responsible for this mistake. Further, the opposite party failed to provide any document which shows that the said letter was delivered to the complainant before 19.10.2011 i.e. the date by which the complainant had to accept the alternate flat.

21. On the basis of aforesaid discussions, it is clear that the allotment of flat in question was given after the stipulated period and the opposite party also failed to handover the possession of the flat even after passing of 14 years. Consequently, the deficiency on the part of opposite party stands proved as they failed to fulfill their obligations within the stipulated time period and hence, the opposite party is guilty of deficiency in providing its services to the complainant.

22. The opposite party contended that the complainant cannot ask for refund at final arguments stage as it is beyond his prayer clause and also argued that even if this commission is inclined towards granting CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 8 of 12 refund, the same should be given without interest. In support of his contention, he relied on Revision petition no. 3295 of 2012 titled as Municipal Corporation Ratlam Vs. Vimpi Chhabra. 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 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.

23. Relying on the above settled law, it is clear that the complainant cannot be compelled to accept offer of possession after the expiry of the stipulated period and is also entitled to get refund of the entire amount paid by him along with reasonable interest. Consequently, the objection raised by the Opposite Party is answered in the negative.

24. We further deem it appropriate to refer to Parsvnath Exotica Resident Association Vs Parsvnath Developrs 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 CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 9 of 12 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."

25. 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 is ready to give possession of flat only when the complainant clear the outstanding dues and the complainant is interested in refund due to the delay in handing over the possession of the flat. In these circumstances, it is justified to refund the amount already paid by the complainant.

26. Having discussed the liability of the Opposite party, the only question left to adjudicate is as to how the complainant is to be compensated for the deficient acts of the Opposite party. It is imperative to refer to the recent pronouncements of the Hon'ble Supreme Court in terms of "Interest" which is being allowed on the refunded amount. In Arifur Rahman Khan and Ors. (supra) which is the latest pronouncement CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 10 of 12 (24.08.2020) on the cause, the Hon'ble Apex Court has allowed an interest @ 6% p.a. on the amount received by the Opposite Party, payable within one month and in case of default to pay within the stipulated period, an interest @ 9% p.a. was payable on the said amount.

27. 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 complainant i.e. Rs. 10,25,223/- 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 28.07.2021 (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 27.09.2021;

C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 27.09.2021, 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.

28. 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 complainant; and B. The litigation cost to the extent of Rs. 50,000/-.

29. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.

30. 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.

31. File be consigned to record room along with a copy of this Judgment.

(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:

28.07.2021 CC 238/2019 SMT. RAJNI JAIN VS. TDI INFRASTRUCTURE LTD. Page 12 of 12