State Consumer Disputes Redressal Commission
Usha Rani vs M/S M2K Infrastructure Pvt. Ltd. on 16 July, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
JUDGMENT RESERVED ON: 13.07.2021
JUDGMENT PRONOUNCED ON: 16.07.2021
COMPLAINT NO. 1087/2016
IN THE MATTER OF
MS. USHA RANI ..... COMPLAINANT
VERSUS
M/S M2K INFRASTRUCTURE PVT. LTD. ...OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: None for the complainant.
Sh. O. P Bhunia, Counsel for the OP.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The present complaint being filed under Section 17 of the Consumer Protection Act, 1986 by Ms. Usha Rani (hereinafter referred to as 'complainant') against M/s M2K Infrastructure Pvt. Ltd. (hereinafter referred to as 'opposite party') and has prayed the following reliefs:-
a) Direct the opposite party to refund the paid amount of Rs.
23,79,257/- (Twenty three lakhs seventy nine thousand two hundred and fifty seven) along with interest @ 24% per annum/ CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 1 of 10 as per the OP agreement (or as per the RBI guidelines) from the date of receipt till its realization to the complainant.
b) Award Rs. 15,00,000/- as damages/compensation to the complainant for providing deficient services and for causing mental agony, pain and suffering caused to the complainant.
c) Award a cost of Rs. 5,00,000/- towards litigation expenses in favour of the complainant and against the opposite party.
d) Pass any further order/orders which this Hon'ble Forum may deem fit and proper in the facts and circumstances of the case.
2. Brief facts necessary for the adjudication of the present complaint are that the complainant along with her brother and relative booked three flats bearing no. B-601, D-201 & E-1303 in the project of the opposite party "M2K Country Heights" situated at Dharuhera, Haryana. Vide letter dated 27.01.2012, all these provisional allotments of flats are consolidated into one apartment i.e. E-1303 and the payments made against the other flats stood credited against apartment E-1303. As per Article 5(A)(i) of the apartment buyer agreement sent by opposite party vide email dated 02.01.2008, the opposite party had to complete the construction of the said apartment within 36 months from the date of commencement of construction of particular tower in which apartment is located. However, till date the possession of the said apartment has not been handed over by the opposite party to the complainant.
The complainant over the time had paid a sum of Rs. 23,79,257/- to the Opposite Party as and when demanded by him. The complainant also sent a legal notice dated 30.08.2016 to the Opposite Party asking for refund but was of no avail.
CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 2 of 103. 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 booked various flats in the same project 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 possession of the said flat was offered to the complainant vide letter dated 22.03.2016 with a demand of Rs. 4,28,148/- but the complainant failed to take the possession of the said flat. Pressing the aforesaid preliminary objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.
6. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.
7. We have perused the material available on record including the written arguments filed on behalf of the complainant and have heard the arguments of the Opposite Party.
8. The fact that the complainant had booked a flat with the Opposite Party vide application form dated 23.11.2006 is not in dispute from the evidence on record. Payment to the extent of Rs. 23,79,257/- by the complainant to the Opposite Party is also evident from the evidence on record.
9. Before delving into the merits of the case, we deem it appropriate to adjudicate the preliminary objections raised on behalf of the Opposite Party.
CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 3 of 10WHETHER THE PRESENT COMPLAINT IS BARRED BY LIMITATION?
10. 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."
11. 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 2 years from the date on which cause of action has arisen.
12. On perusal of record before us, we find that the possession of the said flat had been offered by the opposite party on 22.03.2016, which means the cause of action has also arisen on 22.03.2016. The present complaint was filed in the year 2016 by the complainant. Therefore, the present complaint is within the period of limitation as the same was CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 4 of 10 filed within two years from the date on which cause of action has arisen.
WHETHER COMPLAINANT FALLS IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
13. The Opposite Party has contended that the complainant is not a Consumer as defined under the Consumer Protection Act, 1986 as the complainant along with her brother and relative booked various flats in the same project and the same amounts to commercial purpose.
14. It is imperative 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."
15. We further 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.
CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 5 of 10Ltd. 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 has purchased various flats in the same project and on perusal of the record before us, we fail to find any material which shows that the Complainant purchased various flats in same project or 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 no. 1 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 CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 6 of 10 Party is actually deficient in providing its services to the complainant or not. 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 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 CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 7 of 10 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.
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 Article 5(A)(i) of the apartment buyer agreement vide email dated 02.01.2008 the opposite party had to complete the construction of the apartment within the period of 36 months from the date of the commencement of construction of the particular tower in which apartment is located. However, the possession was offered by the opposite party on 22.03.2016, which is beyond the stipulated period of 3 years.
20. 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.
21. 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 (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 CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 8 of 10 stipulated period, an interest @ 9% p.a. was payable on the said amount.
22. 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. 23,79,257/- 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 no. 1 till 16.07.2021 (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 no. 1 pays the entire amount on or before 15.09.2021; 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 15.09.2021, 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 no. 1 till the actual realization of the amount.
23. 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. 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/-.
24. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 9 of 1025. 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.
26. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
16.07.2021 CC 1087/2016 USHA RANI VS. M2K INFRASTRUCTURE PVT. LTD. Page 10 of 10