State Consumer Disputes Redressal Commission
Vinod Kumar Sharma vs Parsvnath Developers Ltd. on 5 July, 2022
C.NO. 1160/2016 VINOD KUMAR SHARMA VS. M/s PARSVNATH DEVELOPERS LTD. D.O.D.:05.07.2022
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 27.09.2016
Date of hearing: 02.06.2022
Date of Decision: 05.07.2022
COMPLAINT CASE NO.- 1160/2016
IN THE MATTER OF
SH. VINOD KUMAR SHARMA,
S/o Sh. GHAMANDI LAL
R/o B-19 Market, Old Seema Puri,
Delhi-110095
(Through: Mr. Dinesh Kumar Gupta & Vidit Gupta, Advocate)
...Complainant
VERSUS
M/S PARSVANATH DEVELOPERS LTD.
6th floor, ARUNACHAL BUILDING,
19, BARAKHAMBA RD,
New Delhi 110001
(Through: Mr. T.P. Chauhan, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 9
C.NO. 1160/2016 VINOD KUMAR SHARMA VS. M/s PARSVNATH DEVELOPERS LTD. D.O.D.:05.07.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. RAJAN SHARMA, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainant before this commission alleging deficiency of service and unfair trade practice by the Opposite Party and has prayed the following:
a) Direct the Opposite Party to render the services as agreed & promised which includes issue the allotment, hand over the possession of Plot No. B-0242 in Parsvnath City near Tau Devi Lal Park, Sonepat, Haryana measuring 300 sq. yds. Or equivalent thereto in all respect like size and location & dimensions failing which pay a sum of Rs.
22,64,725/- alongwith interest thereon @ 24% per annum from the date of payment to the Complainant.
b) Award the compensation of Rs.30,00,000/- towards mental stress & agony suffered by the Complainant, and interest thereon @24% per annum, besides the litigation expenses by allowing the complaint of the Complainant, in the interest of the justice.
2. Brief facts necessary for the adjudication of the present complaint are that Complainant booked a plot bearing no. B-0242 measuring 300 sq yds. with the Opposite Party in the project named ALLOWED PAGE 2 OF 9 C.NO. 1160/2016 VINOD KUMAR SHARMA VS. M/s PARSVNATH DEVELOPERS LTD. D.O.D.:05.07.2022 "Parsvnath City" near Tau Devi Lal Park situated at Sonipat, Haryana. Thereafter, a plot buyer agreement was executed between the parties on 09.05.2007.
3. The Complainant over the time had paid a sum of Rs. 22,64,725/-
which is 90% of the total sale amount including the External Development Charges (EDC) and Infrastructure Development Charges to the Opposite Party as and when demanded by it. The Opposite Party issued customer ledger statement dated 18.05.2015 wherein it mentioned the wrong property no. i.e. B-0078 without the consent of the Complainant after which the Complainant raised objections by sending legal notice dated 22.12.2015 but of no avail. However, till date neither the possession has been granted nor has the Opposite Party refunded the said amount.
4. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the Complainant is not a consumer under the Consumer Protection Act, 1986 as they invested the money to earn profit for commercial purposes. He further submitted that the Complainant has no cause of action to file the present complaint.
5. The counsel for the Opposite Party further contended that the cases involving complex and complicated question of facts and law cannot be decided by the summary jurisdiction in the Consumer Forum. Therefore, this commission does not have the jurisdiction to adjudicate the present complaint. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the present complaint should be dismissed.
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6. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
7. We have perused the material available on record and heard the counsel for the parties.
8. The fact that the Complainant had booked a plot with the Opposite Party is evident from the plot buyer agreement dated 09.05.2007. Payment to the extent of Rs. 22,64,725/- has been made by the Complainant to the Opposite Party is also not disputed by the Opposite Party.
WHETHER COMPLAINANT IS A 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
9. The Opposite Party 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 ALLOWED PAGE 4 OF 9 C.NO. 1160/2016 VINOD KUMAR SHARMA VS. M/s PARSVNATH DEVELOPERS LTD. D.O.D.:05.07.2022 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."
10. 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 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."
11. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the plot 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.
12. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the plot 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 plot. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer ALLOWED PAGE 5 OF 9 C.NO. 1160/2016 VINOD KUMAR SHARMA VS. M/s PARSVNATH DEVELOPERS LTD. D.O.D.:05.07.2022 complaint. Consequently, the objection raised on behalf of the Opposite Party is answered in the negative.
WHETHER COMPLAINANT HAS CAUSE OF ACTION TO APPROACH THIS COMMISSION?
13. The question for adjudication before us is whether the Complainant has any cause of action to approach this commission. The facts reveal that the Plot Buyer Agreement was executed between the parties on 09.05.2007, wherein plot No. B-0242 has been booked. On perusal, we find the Complainant has made more than 90% of the payments to the Opposite party for the said plot and remaining amount to be paid by the Complainant at the time of possession. However, the possession of the said plot in question is still not handed over to the Complainant.
14. 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."
15. Applying the above settled law, it is clear that the Complainant is within their right to file the present complaint 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.
WHETHER OPPOSITE PARTY IS DEFICIENT IN PROVIDING ITS SERVICES?
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16. 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 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 ALLOWED PAGE 7 OF 9 C.NO. 1160/2016 VINOD KUMAR SHARMA VS. M/s PARSVNATH DEVELOPERS LTD. D.O.D.:05.07.2022 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.
17. At this stage, we deem it appropriate to refer to clause 1(a) Plot Buyer agreement dated 09.05.2007 entered into by both the contesting parties. It reflects that the Opposite Party has booked Plot No. B-0242 and according to the payment plan 5% amount to be paid at the time of handling over the possession to the Complainant. However, the Opposite Party failed to fulfil the contractual obligation as till date the possession of the said plot has not been given and illegally changed the plot in question with another one i.e. from B-0242 to B-0078 as mentioned in the customer ledger statement after receiving 90% payment from the Complainant.
18. Relying on the above settled law, 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 Complainant with respect to the time for giving the possession of the said plot and further changing the originally allotted plot with another plot without giving any sufficient reasons to the Complainant.
19. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to handover the physical possession of the originally allotted plot i.e. B-0242 to the Complainant as promised by the Opposite party through the Plot Buyer Agreement dated 09.05.2007 within two months from the date of present Judgment i.e. 05.07.2022.
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20. 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/-.
21. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
22. 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.
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
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