State Consumer Disputes Redressal Commission
Uma Jaiswal vs Vedic Reality Pvt. Ltd. & Others on 18 May, 2026
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
CONSUMER COMPLAINT NO. SC/19/CC/178/2019
Uma Jaiswal
PRESENT ADDRESS - W/o Mr. Ramesh Kr. Jaiswal, R/o Ganesh Ganj, Bhaisiatola Shitla Mandir,
Mirzapur, Uttar Pradesh - 231 001.,WEST BENGAL.
.......Complainant(s)
Versus
Vedic Reality Pvt. Ltd. & Others
PRESENT ADDRESS - Through its Director, 1/1B, Upper Wood Street, Kolkata - 700 017, W.B.
,WEST BENGAL.
Uday Modi, Director, M/s. Vedic Realty Pvt. Ltd.
PRESENT ADDRESS - 1/1B, Upper Wood Street, Kolkata - 700 017, W.B. ,WEST BENGAL.
Raj Kishore Modi, Director, M/s. Vedic Realty Pvt. Ltd.
PRESENT ADDRESS - 1/1B, Upper Wood Street, Kolkata - 700 017, W.B. ,WEST BENGAL.
Nand Kishore Sharma, Director, M/s. Vedic Realty Pvt. Ltd.
PRESENT ADDRESS - 1/1B, Upper Wood Street, Kolkata - 700 017, W.B. ,WEST BENGAL.
Indiabulls Distribution Services Ltd.
PRESENT ADDRESS - Through its Director, 26, Lee Road, Lee Commerce Building, 2nd Floor,
Sreepally, Bhownipore, Kolkata - 700 020, W.B. ,WEST BENGAL.
Umesh Maskara, Indiabulls Distribution Services Ltd.
PRESENT ADDRESS - 26, Lee Road, Lee Commerce Building, 2nd Floor, Sreepally, Bhownipore,
Kolkata - 700 020, W.B. ,WEST BENGAL.
.......Opposite Party(s)
BEFORE:
HON'BLE MR. RAJES GUHA RAY , JUDICIAL MEMBER
HON'BLE MR. SANTANU SAHA , MEMBER
FOR THE COMPLAINANT:
Uma Jaiswal, Ms. Amrita Jaiswal (Advocate)
FOR THE OPPOSITE PARTY:
Vedic Reality Pvt. Ltd. & Others, Sudipa Bhattacharya (Advocate)
Uday Modi, Director, M/s. Vedic Realty Pvt. Ltd., Sudipa Bhattacharya (Advocate)
DATED: 18/05/2026
ORDER
Hon'ble Mr. Santanu Saha, Member
1. Genesis The present complaint under the Consumer Protection Act, 1986 has been filed by the Complainant alleging gross deficiency in service and unfair trade practice on the part of Opposite Party No.1 in relation to a residential flat booked by the Complainant in a housing project known as "Vedic Village" situated at Rajarhat, North 24 Parganas.
The grievance of the Complainant essentially arises from prolonged non-delivery of possession of the flat despite substantial payment of the consideration amount and despite expiry of the contractual period stipulated for handing over possession. Allegations have also been raised regarding unilateral enhancement of the super built-up area and consequential escalation of price as well as existence of structural defects in the booked unit.
2. Facts in Brief The undisputed factual matrix reveals that the Complainant booked one 2 BHK residential flat measuring approximately 990 sq. ft. super built-up area being Unit No. C1 on the first floor of Block IG-06 together with one covered car parking space upon payment of Rs.2,57,725/- on 05.07.2014. Thereafter, allotment letter was issued by O.P No.1 on 14.07.2014.
Subsequently, an Agreement for Sale was executed between the parties on 10.09.2014. Initially, the consideration amount for the flat was fixed at Rs.29,20,500/- which, together with parking charges, club charges, EDC/IDC and maintenance deposit, stood enhanced to Rs.34,98,700/- exclusive of applicable taxes.
It is the case of the Complainant that on 10.07.2015 the Opposite Party unilaterally demanded an additional amount of Rs.1,47,500/- on the alleged ground of increase in floor area due to structural readjustment. The Complainant objected to such unilateral enhancement and did not execute the supplementary agreement sought to be introduced by the developer.
The Complainant paid a total sum of Rs.30,79,051/- in ten installments to the Opposite Party. However, according to the Complainant, despite substantial payment and lapse of considerable time, there was virtually no meaningful progress in construction till the date of stipulated deadline of handing over the flat. The Complainant also alleged discovery of a substantial beam approximately two feet in width traversing one of the bedrooms which was not reflected in the sanctioned plan or agreed layout. Several communications and enquiries allegedly remained unanswered.
Finding no satisfactory response, the Complainant caused issuance of legal notice dated 10.04.2018 demanding possession along with compensation. The Opposite Party replied on 28.05.2018 denying allegations of deficiency in service but simultaneously stating that the project was nearing completion and possession would shortly be delivered.
Being dissatisfied, the present complaint came to be filed seeking refund of the deposited amount with interest @24% per annum, compensation of Rs.5 lakh for mental agony, Rs.5 lakh for deficiency in service and unfair trade practice and litigation cost of Rs.1 lakh.
3. Submissions made by the Opposite Party The Opposite Party contested the complaint by filing Written Version raising, inter alia, the following objections:
Firstly, it was contended that the complaint was not maintainable before the Consumer Commission and that the Complainant was not a "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. It was alleged that the flat had been booked for commercial and resale purposes.
Secondly, limitation was pleaded.
Thirdly, it was argued that the Complainant herself committed defaults in making timely payments under the agreement.
Fourthly, reliance was placed upon the arbitration clause contained in the Agreement for Sale to contend that disputes between the parties ought to be referred to arbitration instead of being tried in consumer forum.
Lastly, delay in completion was sought to be justified on grounds of alleged force majeure conditions including economic slowdown, heavy rain, demonetization and changes in real estate laws.
4. Points for Determination Upon consideration of the pleadings, evidence on record and submissions advanced, the following points arise for determination:
i. Whether the Complainant is a "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986?
ii. Whether the complaint is barred by limitation?
iii. Whether the existence of an arbitration clause in the Agreement for Sale bars the
jurisdiction of this Commission?
iv. Whether the complaint suffers from defect of non-joinder or misjoinder of parties?
v. Whether the Complainant committed breach of contractual obligations by non-
payment or delayed payment of installments?
vi. Whether the Opposite Party has been able to establish existence of any genuine
force majeure circumstance justifying delay in completion of the project?
vii. Whether the unilateral enhancement of super built-up area and consequential escalation of consideration amount was lawful and binding upon the Complainant?
viii. Whether there has been deficiency in service and unfair trade practice on the part of Opposite Party No.1?
ix. Whether the Complainant is entitled to refund of the deposited amount together with interest?
x. Whether the Complainant is entitled to compensation, litigation costs and other consequential reliefs?
5.Decision with Reasons At the outset, it deserves mention that though the matter was repeatedly fixed for final hearing, Opposite Party No.1 remained absent on the date of hearing. It further appears from records that the Hon'ble National Consumer Disputes Redressal Commission had directed expeditious disposal of the matter. Accordingly, the matter has been heard on merits on the basis of available materials on record.
Point No. (i): Whether the Complainant is a "consumer"?
The objection regarding status of the Complainant as a consumer is wholly untenable. The principal defence of the Opposite Party is that the flat was allegedly booked for "resale purpose" and therefore the Complainant does not come within the ambit of a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986.
However, except making bald and unsupported assertions, the Opposite Party has not adduced even a shred of documentary evidence to establish that the Complainant was habitually engaged in purchase and sale of real estate or that the flat in question was booked for commercial exploitation.
On the contrary, the Complainant has specifically averred that she is a consumer under the Act. In reply to the questionnaire filed by the Opposite Party, the Complainant further clarified that she owns no other residential flat or unit.
In Kavit Ahuja v. Shipra Estate Ltd., the National Commission held that a purchaser of a residential unit would continue to be a consumer unless the builder proves that the booking was for a commercial purpose, and mere bald allegations of investment or speculation are insufficient. Similarly, in Aashish Oberai v. Emaar MGF Land Ltd. it was observed that a transaction would amount to a "commercial purpose" only where evidence shows that the purchaser is engaged in the business of buying and selling real estate as a trading activity for profit.
Accordingly, this Commission holds that the Complainant is a consumer within the meaning of the Act.
Point No. (ii): Whether the complaint is barred by limitation?
The objection regarding limitation is equally unsustainable.
Article 9.1 of the Agreement for Sale contemplated delivery of possession within 36 months from the date of agreement with an additional grace period of six months. Even assuming maximum contractual latitude, possession ought to have been delivered by March 2018.
Significantly, in reply dated 28.05.2018 to the legal notice issued by the Complainant, the Opposite Party itself admitted that possession had not yet been delivered and represented that the project was nearing completion.
The complaint came to be instituted on 08.03.2019 and is therefore clearly within limitation. Further, failure to deliver possession constitutes a recurring and continuing cause of action.
In Meerut Development Authority v. Mukesh Kumar Gupta, the Hon'ble Supreme Court held that continued failure to deliver possession of an allotted plot/flat constitutes a recurring or continuing cause of action, and therefore the complaint cannot be rejected as barred by limitation so long as possession remains undelivered.
Hence, the complaint cannot be dismissed on limitation.
Point No. (iii): Whether arbitration clause bars jurisdiction?
The Agreement for Sale contains an arbitration clause. However, the legal position on this issue is no longer res integra.
In Emaar MGF Land Ltd. v. Aftab Singh the Hon'ble Supreme Court affirmed the Larger Bench decision of the National Commission and categorically held that the existence of an arbitration clause does not oust the jurisdiction of Consumer Fora.
The Court held that the remedy under the Consumer Protection Act is a special statutory remedy and is in addition to remedies available under other statutes. This is also in conformity with Section 3 of C.P. Act, 1986.
Therefore, existence of an arbitration clause does not bar a consumer complaint. Consumer Fora retain jurisdiction notwithstanding Section 8 of the Arbitration and Conciliation Act.
Point No.(iv): Misjoinder / Non-joinder This issue no longer survives for consideration.
By Order No.2 dated 22.04.2019, the complaint already stood rejected against all proposed Opposite Parties except Opposite Party No.1 on the ground of absence of privity of contract.
Hence, the proceeding presently survives only against Opposite Party No.1.
Point No.(v): Whether the Complainant committed default in payment?
This is one of the principal defences raised by the Opposite Party and therefore requires careful scrutiny.
The records reveal that out of the total demanded consideration, the Complainant paid a substantial amount of Rs.30,79,051/- in ten installments.
The Opposite Party has alleged that installments were not paid "in time", but conspicuously failed to produce: any valid termination notice, any cancellation letter, any statement of delayed installments, any computation of penal interest, any contemporaneous protest regarding alleged breach or any document demonstrating that construction delay was attributable to the Complainant.
On the contrary, the conduct of the Opposite Party in continuing to accept payments and assuring future possession clearly indicates waiver of any alleged minor delay.
More importantly, a purchaser's minor or technical delay in payment cannot justify indefinite withholding of possession where the developer itself has failed to substantially complete construction within the contractual period.
In Kolkata West International City Pvt. Ltd. v. Devasis Rudra, the Hon'ble Supreme Court held that a developer guilty of substantial and prolonged delay in delivering possession cannot avoid liability by relying upon minor or inconsequential defaults on the part of the allottee Therefore, this Commission is unable to accept the contention that the delay in completion occurred due to any fault attributable to the Complainant.
Point No.(vi): Whether force majeure has been proved?
The Opposite Party has vaguely referred to economic slowdown, rain, demonetization and changes in real estate laws as force majeure events. This plea is wholly unconvincing.
A force majeure plea must be specifically pleaded and strictly proved. Mere commercial inconvenience or generalized economic conditions do not constitute force majeure unless direct causal nexus with inability to perform contractual obligations is established.
No documentary evidence whatsoever has been produced showing: stoppage orders, statutory prohibitions, impossibility of construction, suspension of approvals, labour embargo or any event rendering performance impossible. Moreover, ordinary monsoon or economic slowdown are foreseeable business contingencies and cannot justify indefinite delay in a housing project.
This Commission therefore rejects the plea of force majeure.
Point No.(vii): Whether unilateral enhancement of area and consideration was lawful?
The records reveal that by communication dated 10.07.2015 Opposite Party No.1 sought to impose an additional burden of Rs.1,47,500/- upon the Complainant allegedly due to increase in super built-up area arising out of structural readjustment.
The Complainant objected to such enhancement and declined to execute the supplementary agreement forwarded by the Opposite Party.
The Opposite Party has failed to establish that: a) the alleged increase in area was consented to by the Complainant; b)such structural alteration was unavoidable; or c) the Complainant voluntarily accepted revised consideration terms.
The allegation regarding insertion of a large beam through one bedroom contrary to the agreed plan also remains substantially unrebutted. Unilateral alteration of material contractual terms by a builder without informed consent of the allottee is arbitrary and impermissible.
In Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan the Hon'ble Supreme Court deprecated one-sided and arbitrary contractual practices adopted by builders. Though the findings in the aforesaid Pioneer case arose from clauses embedded in the original builder-buyer agreement, the broader principle recognized therein -- namely that unfair and one-sided stipulations imposed by a developer cannot be enforced mechanically against an allottee owing to unequal bargaining power -- is of persuasive relevance in examining the fairness and enforceability of the supplementary enhancement conditions in the present case.
Hence, this Commission holds that the unilateral enhancement sought to be imposed by Opposite Party No.1 was not binding upon the Complainant.
Point No.(viii): Whether there has been deficiency in service?
The answer must necessarily be in the affirmative.
The Opposite Party received more than Rs.30 lakh from the Complainant but failed to deliver possession even years after expiry of the agreed timeline.
The unexplained and prolonged delay clearly amounts to deficiency in service.
In Bangalore Development Authority v. Syndicate Bank, the Hon'ble Supreme Court held that housing construction and allotment activities fall within the ambit of 'service' under consumer law, and failure or delay in delivering possession constitute actionable deficiency in service.
The structural deviation alleged by the Complainant regarding existence of a large beam traversing one bedroom also remains substantially unrebutted. The unilateral enhancement of area and demand for additional consideration without obtaining informed consent of the purchaser further reflects arbitrariness and unfair trade practice.
Thus, this Commission has no hesitation in holding that Opposite Party No.1 was guilty of gross deficiency in service and unfair trade practice.
Point No.(ix): Whether the Complainant is entitled to refund?
The law is now well settled that where delay becomes unreasonable and defeats the very purpose of purchase, the allottee cannot be compelled to accept possession at a belated stage.
In Fortune Infrastructure v. Trevor D'Lima, the Hon'ble Supreme Court held that an allottee cannot be compelled to wait indefinitely for possession and is entitled to seek refund where delay in delivery becomes unreasonable. Likewise, In IREO Grace Realtech Pvt. Ltd. v. Abhishek Khanna, the Hon'ble Supreme Court held that where there is inordinate and unreasonable delay in handing over possession, the allottee cannot be compelled to continue waiting indefinitely, and refund with appropriate compensation constitutes a just and equitable relief.
Considering the prolonged delay, loss of confidence and uncertainty surrounding the project, this Commission is satisfied that refund with reasonable interest would constitute just and proper relief.
Point No.(x): Whether the Complainant is entitled to compensation, litigation cost or other consequential relief?
Having held that there was manifest deficiency in service and unfair trade practice on the part of O.P. No. 1, the consequential question now concerns the extent of compensation and ancillary reliefs.
The Complainant has prayed for: i) refund with interest @24% per annum; ii) Rs. 5 lakh as compensation for mental agony and harassment; iii) Rs.5 lakh for deficiency in service and unfair trade practice; and iv) litigation cost.
This Commission is conscious that compensation awarded under the Consumer Protection Act must remain compensatory and restitutive rather than punitive or windfall in nature.
At the same time, it cannot be ignored that the Complainant invested substantial savings in expectation of obtaining residential accommodation within the promised timeline and was thereafter subjected to prolonged uncertainty, repeated assurances, unanswered communications and litigation extending over several years.
The mental harassment and financial prejudice suffered by a homebuyer in such circumstances have repeatedly been acknowledged by the Hon'ble Supreme Court. In Lucknow Development Authority v. M.K. Gupta the Hon'ble Supreme Court held that compensation under consumer law may include recompense for mental harassment and emotional suffering caused by arbitrary conduct of service providers. Similarly, in Ghaziabad Development Authority v. Balbir Singh, the Hon'ble Supreme Court held that an award of interest may, depending on the facts of the case, serve both as restitution for deprivation of money and as compensation for delay, harassment, or injury suffered by the consumer.
However, grant of interest @24% per annum as prayed for appears excessive and disproportionate in the present facts. Award of reasonable simple interest would sufficiently balance equities between the parties.
The Complainant is therefore entitled to:
• refund of the deposited amount;
• compensatory interest thereon;
• compensation for mental agony and harassment; and • litigation costs.
6. ORDER Accordingly, the complaint is allowed in part on contest against Opposite Party No.1 with the following directions:
i) Opposite Party No.1 shall refund to the Complainant the entire sum of Rs.30,79,051/- (Rupees Thirty Lakh Seventy Nine Thousand Fifty One only) received from the Complainant in respect of the subject flat together with simple interest @7% per annum from the respective dates of each payment till actual realization.
ii) Opposite Party No.1 shall further pay a sum of Rs.2,00,000/- (Rupees Two Lakh only) to the Complainant as compensation for mental agony, harassment, financial hardship and deficiency in service.
iii) Opposite Party No.1 shall also pay litigation cost of Rs.50,000/- (Rupees Fifty Thousand only) to the Complainant.
iv) Upon payment of the aforesaid decretal amount by Opposite Party No.1, the Agreement for Sale in respect of the subject flat shall stand mutually cancelled and neither party shall thereafter have any claim against the other arising out of the said Agreement, except in relation to enforcement of this order.
v) The amounts noted at point nos. i), ii) and iii) above shall be paid within 45 days of pronouncement of this Order failing which, the Complainant shall be at liberty to put the order into execution in accordance with law.
Let a copy of this Judgment be supplied to the parties free of cost as per rules.
..................
RAJES GUHA RAY JUDICIAL MEMBER ..................
SANTANU SAHA MEMBER