State Consumer Disputes Redressal Commission
Ms. Babita Chopra vs M/S Tdi Infrastructure on 5 August, 2022
C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 16.04.2013
Date of hearing: 05.07.2022
Date of Decision: 05.08.2022
COMPLAINT CASE NO.- 207/2013
IN THE MATTER OF
MS. BABITA CHOPRA
C/O SH. RAJ KALRA,
GC-15, SHIVAJI ENCLAVE,
NEW DELHI - 1100027
(Through: S.K. Sharma & Co.)
...Complainant
VERSUS
TDI INFRASTRUCTURE PVT. LTD.
G-7, GROUND FLOOR,
CONNAUGHT CIRCUS
OPP. MADRAS HOTEL BLOCK,
NEW DELHI - 110001
(Through: SKV Associates)
... Opposite Party
ALLOWED PAGE 1 OF 12
C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS PINKI, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
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 and Unfair Trade Practice on the part of Opposite Party and has prayed the following reliefs:
a) "To allot the flat against customer ID KSM - 10288 and handover possession of the same apart from executing all necessary transfer documents in favour of the complainant; OR.
b) To refund the amount of Rs.19,00,000/- paid by the complainant to the OP alongwith interest @24% from the date of receipt of Rs.19,00,000/- till the date of possession.
c) To pay compensation to the complainant of Rs.5 lakh for mental harassment and agony.
d) To pay the cost to the complainant for causing financial loss to the complainant by not allotting the flat within time as promised.
e) Pass any other or further order or orders, as this Hon'ble Court deems 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 booked a shop measuring 610.49 sq. ft.
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with the Opposite Party in the project 'TDI Mall' situated at TDI City, Kundli, Sonipat, Haryana for a basic sale price of Rs. 24,41,960/-. The Opposite party allotted a shop bearing No. UGF- 76 to the Complainant vide customer I.D: KSM-10288. The Complainant over the time had paid a sum of Rs.19,00,000/- to the Opposite Party as and when demanded by it. The Opposite Party assured the complainant to handover the possession of the said shop within 24 months from the date of sanction plan. However, the opposite party offered possession of the said shop vide letter dated 14.05.2012 along with an unjustified demand of Rs. 12,40,850/-, which includes enhanced EDC (External Development Charges) of Rs. 11,392/- and IDC (Internal Development Charges) of Rs. 19,786/-. The complainant further submitted that the opposite party failed to execute the builder buyer agreement till date and the demand of Rs. 12,40,850/- was illegal as the basic sale price of the said flat is Rs. 24,41,960/-. The Complainant sent legal notice dated 04.12.2012 to the Opposite Party to handover the possession of the said shop or to refund the amount paid by her but was of no avail.
3. The Opposite Party has contested the present case and has raised some contentions as the preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party submitted that the Complainant is not "Consumer" as defined under the Consumer Protection Act, 1986 as the said shop was purchased for earning return in the form of rent and the same amounts to commercial purpose. The counsel for the Opposite Party further contended that the present complaint is liable to be ALLOWED PAGE 3 OF 12 C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022 dismissed as the same suffers from delay and laches.
4. The counsel of the Opposite Party further submitted that the booking of the Complainant was previously cancelled by letter dated 26.09.2008 as she defaulted in making timely payments as per the payment plan. However, the allotment was revived on mutual settlement between the parties but the Complainant again defaulted in making payment. He further submitted that the possession was already offered vide letter dated 14.05.2012 and 13.03.2013 but the complainant failed to clear the outstanding dues till date, due to which a Pre-Cancellation Notice was sent to her on 19.07.2013. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint be dismissed.
5. The Complainant has filed their Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the parties.
7. The fact that the Complainant had booked a shop with the Opposite Party is evident from the Advance Registration Form (Annexure R-2 of the written statement) issued by the Opposite Party. Payment to the extent of Rs.19,00,000/- to the Opposite party, is evident from the statement of account (Annexure C-2 of the complaint) issued by the Opposite Party.
WHETHER THE COMPLAINANT FALLS UNDER THE DEFINITION OF 'CONSUMER' PROVIDED BY THE ALLOWED PAGE 4 OF 12 C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022 CONSUMER PROTECTION ACT, 1986?
8. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 1986 as she purchased the said shop to earn rent by leasing it, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Section 2 (1) (d):
"Consumer" means any person who-
i. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or ii. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment;
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9. It is clear from the aforesaid statutory provision that if the shop/flat/plot is purchased for earning livelihood by means of self- employment, the same does not amount to commercial purpose.
10. It is also 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 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 shop 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 said shop was purchased for commercial purpose as the complainant mentioned in the complaint that if the possession was given on time, she might have used it for her livelihood or let out the same on rent. However, on perusal of the record before us, we fail to find any material which shows that the ALLOWED PAGE 6 OF 12 C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022 Complainant has purchased the said shop with the primary objective to let out the same on rent. Mere allegation, that the purchase of the shop 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.
WHETHER THE PRESENT COMPLAINT WAS FILED WITHIN THE TIME PERIOD PROVIDED BY THE CONSUMER PROTECTION ACT, 1986?
13. The counsel for the Opposite Party contended that the present Complaint suffers from delay and laches as the possession of the said shop was offered on 14.05.2012 and the present complaint has been filed on 05.04.2013. To deal with this issue, we deem it appropriate to refer to Section 24A of the Consumer Protection Act, 1986, which is provided as under for ready reference:
(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 within 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.
14. Perusal of the above statutory position reflects that the complaint ALLOWED PAGE 7 OF 12 C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022 in the state commission shall be filed within 2 years from the date on which cause of action has arisen. Returning to the facts of the present case, even if we rely on the submission of the opposite party that cause of action has arisen on 14.05.2012 i.e. date on which possession of the said flat was offered, it is noted that the present complaint has been filed in the year 2013, which is within the period of 2 years provided by Section 24A of the Act. Therefore, the contention of the opposite party that the present complaint suffers from delay and latches is devoid of any merit and is dismissed.
WHETHER THE OPPOSITE PARTY IS DEFICIENT IN PROVIDING ITS SERVICES TO THE COMPLAINANT
15. Having discussed the preliminary objections raised on behalf of the Opposite Party, the next issue is whether the Opposite Party is actually deficient in providing its services to the Complainant. On perusal of record, it is noted that both the parties submitted that builder buyer agreement was sent to each other but the same was not returned for execution. However, none of the parties have annexed the builder buyer agreement in the present complaint which was to be executed between them. It is clear from the record that no builder buyer agreement has been actually executed between the parties till date.
16. On this issue, it is appropriate to refer to pronouncement of Hon'ble NCDRC in the case of Consumer Case Nos. 1394, 1395, 1396, 1397, 1398, 1399, 1400, 1401 and 1402 of 2015 titled as Vikram Jain and Ors. Vs. AAA Estate Pvt. Ltd. decided on 07.11.2017. The relevant paras of the aforesaid judgment are ALLOWED PAGE 8 OF 12 C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022 provided hereunder for ready reference:
"......So far as the Complaint Nos. 1401 and 1402 of 2015 are concerned, wherein there is no builder buyer agreement signed by the parties and only allotment letters are there, I am of the opinion that if even after taking huge amount of the consideration, the builder buyer agreement is not signed, this also speaks of the deficiency on the part of the builder. Even in the case referred to by the learned counsel for the OP which is Hansa V. Gandhi (supra), the Supreme Court has agreed with the order of the High Court for refund of the amount with interest."
17. From the aforesaid dicta of the Hon'ble NCDRC, it is clear that if the builder buyer agreement is not executed even after taking huge amount from the buyer, the builder is liable for deficiency in service. It is noted from the record that the complainant had paid Rs. 19,00,000/- out of Rs. 24,41,960/- i.e. total basic sale price of the said shop. Relying on the above settled law, we hold that opposite is deficient in providing its services to the complainant as even after taking huge consideration for the complainant, the builder failed to execute the builder buyer agreement till date.
18. The Opposite Party further contended that the possession of the said shop was offered vide letter dated 14.05.2012 but the complainant failed to clear the outstanding dues till date. Perusal of record shows that the said shop was booked by the complainant on 02.11.2006 and the possession was offered by the opposite party on 14.05.2012 i.e. after around 6 years from the date of booking. We deem it appropriate to refer to First Appeal no. 348/2016 titled "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors."
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decided on 10.05.2019, wherein it has been held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:
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."
19. The aforesaid dicta of the Hon'ble NCDRC make it clear that if the possession is delivered beyond 42 or 48 months by the builder, then the deficiency on the part of builder stand proved. In the present case, the possession of the shop in question was offered beyond 42 or 48 months from the date of booking. Therefore, the deficiency on the part of the builder stand proved.
20. We further 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 ALLOWED PAGE 10 OF 12 C/207/2013 MS. BABITA CHOPRA VS. TDI INFRASTRUCTURE PVT. LTD. D.O.D.: 05.08.2022 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.
21. 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 failed to execute the builder buyer agreement despite taking huge amount from the complainant and also failed to deliver the possession of the said shop within reasonable time.
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.19,00,000/- 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 Parties till 05.08.2022 (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 05.10.2022; 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 05.10.2022, 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.
23. The Opposite Party is also directed to pay a sum of Rs. 1,00,000/-
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to the complainant as cost for mental agony and harassment suffered by her.
24. The opposite party is also directed not to deduct any TDS on the amount being paid/refunded. Our view is fortified by the dicta of Bombay High Court in the case of Sainath Rajkumar Sarode & Ors. Vs. State of Maharashtra & Ors. reported in [2021] 283 TAXMAN 494 (Bom).
25. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
26. 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.
27. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
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