State Consumer Disputes Redressal Commission
Sh. Shyam Malhotra & Anr. vs M/S Imperia Structures Ltd. on 19 May, 2023
C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:23.10.2018
Date of hearing: 29.03.2023
Date of Decision: 19.05.2023
COMPLAINT CASE NO.-1385/2018
IN THE MATTER OF
1. MR. SHYAM MALHOTRA,
S/O MR. DEVENDER MALHOTRA,
2. MRS. SUNAINA MALHOTRA,
W/O MR. SHYAM MALHOTRA,
BOTH R/O A1-31, SECOND FLOOR,
SATYAWATI NAGAR ASHOK VIHAR,
PHASE 3 NEW DELHI-52.
(Through: Mr. Arbid Kumar Garg, Advocate)
...Complainants
VERSUS
THE DIRECTOR,
M/S IMPERIA STRUCTURE LIMITED,
REGISTERED & CORPORATE OFFICE AT;
A-25, MOHAN CO-OPERATIVE AREA, NEW DELHI-52.
(Through: Mr. Ayush Agarwal, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 9
C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HO'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Arbid Kumar Garg, Counsel for the Complainant
Mr. Manish Gupta, AR of OP
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present Complaint has been filed by the Complainants before this Commission alleging deficiency of service on the part of Opposite Parties and have prayed the following reliefs:
(i) "Direct the Opposite Party to pay Rs.33,52,650/- (Rs.
Thirty Three Lacs Fifty Two Thousand Six Hundred Fifty Only) as advance booking amount Rs 16,85,000/- (Rs.
Sixteen Lacs Eighty Five Thousand Only) paid by complainants as advance payment and Rs.16,67,650 (Rs. Sixteen Lacs Sixty Seven Thousand Six Hundred Fifty Only) as interest on advance payment @ 18% P.A since 7.05.2013)
(ii) Direct the Opposite Party to pay damages to the tune of loss of rent Rs. 15,00,000/- (Rs. Fifteen Lacs Only) to the complainant for failure to handover over the possession of the property in time as complainants had been deprived to live on rented accommodation for such a long period.
(iii) Direct the Opposite Party to pay Rs. 10,00,000/- (Rs. Ten Lacs) to complainants for causing mental tension, harassment, trauma etc."
ALLOWED PAGE 2 OF 9 C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
2. Brief facts necessary for the adjudication of the present Complaint are that on 14.05.2013, the Complainants booked a flat bearing no.2003 on 20th floor in Block-5 with the Opposite Party in the project 'Imperia Mirage" situated at Sports City, Yamuna Expressway, Gautam Budh Nagar, Uttar Pradesh. Thereafter, the Opposite Party issued provisional allotment letter in favour of Complainants on 21.06.2013. The Complainant was assured that the Opposite Party shall hand over the possession of the said flat within 36 months from the date of booking. However, the Opposite Party failed to complete construction of the project and to offer possession of the said flat even after the stipulated period of 36 months.
3. The Complainants visited the site of the project and was shocked to see that the construction of the said project was still incomplete. The Complainants sent various emails dated 02.04.2017, 12.04.2017, 14.07,2017, seeking cancellation of the booking and refund of the amount paid alongwith interest but no satisfactory response was received from the Opposite Party. More so, the Opposite Party illegally demanded additional amount for the said flat. The counsel for the Complainants argued that construction of the said project has not been completed till date and shall further take a period of several years for completion.
4. During the course of proceedings, the Opposite Party was required to file written statement vide Order dated 24.02.2021. Despite giving multiple opportunities, the Opposite Party failed to file the Written Statement. Consequently, the right of the Opposite Party to file Written Statement stands closed vide order dated 19.09.2022. Therefore, the averments of the Complainants remain unrebutted.
ALLOWED PAGE 3 OF 9 C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
5. The Complainants have 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 counsel for the parties.
7. The fact that the Complainants had booked a flat bearing no.2003 on 20th floor in Block-5 with the Opposite Party in the project 'Imperia Mirage" is evident from the Provisional Allotment letter dated 21.06.2013 (Annexure- A4). Payment to the extent of Rs. 16,85,000/- by the Complainants to the Opposite Party is evident from the receipts issued attached with the Complaint. (Annexure- A5).
8. Having discussed the preliminary objection 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 Complainants 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.
ALLOWED PAGE 4 OF 9 C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
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 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.
ALLOWED PAGE 5 OF 9 C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
9. The Complainants submitted that the Opposite Party assured them to hand over the possession of the said flat within 36 months from the date of booking i.e. 25.05.2013 but on perusal of record, we do not find any document/ evidence which shows us the stipulated time within which the possession of the said flat was to be handed over by the Opposite Party. However, it is appropriate to refer to the recent pronouncement of Hon'ble National Commission in the case of "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." reported in MANU/CF/0296/2019, 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 ALLOWED PAGE 6 OF 9 C/1385/2018 D.O.D.: 19.05.2023 MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED months, the deficiency in service on the part of the Opposite Party shall stand proved."
10. The aforesaid dicta makes it clear that if the possession is delivered beyond 42 or 48 months by the builder, then the deficiency on the part of the builder stands proved. In the present case, the Complainants for the first time requested in writing for cancellation of the flat and refund of the entire booking amount vide letter/email dated 02.04.2017. Thereafter, Complainants sent reminder emails dated 12.04.2017 & 14.07.2017, seeking cancellation of the booking and refund of the amount. The Complainants were not handed possession even after the first email-communication dated 02.04.2017. Thus, it is established that the possession of the said flat has not been offered to the Complainants even after expiry of 46 months from the date of booking. Therefore, the deficiency on the part of the Opposite party stands proved.
11. We also 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.
ALLOWED PAGE 7 OF 9 C/1385/2018 D.O.D.: 19.05.2023
MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED
12. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite Party had given false assurance to the Complainants with respect to the time for handing over the possession of the said flat and kept the hard-earned money of the Complainants. Therefore, now the Complainants are not bound to take the possession of the said flat after the stipulated period.
13. Moreover, it is pertinent to mention that no cogent material has been placed on record to justify the amount of Rs.15,00,000/- sought by the Complainants as damages on the grounds of being forced to live on rented accommodation for a long time. We are not inclined to grant Rs.15,00,000/- sought as damages by the Complainants.
14. 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 Complainants i.e., Rs. 16,85,000 /- 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 Party till 19.05.2023 (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 19.07.2023;
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 19.07.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each ALLOWED PAGE 8 OF 9 C/1385/2018 D.O.D.: 19.05.2023 MR. SHYAM MALHOTRA & ANR. VS M/S IMPERIA STRUCTURE LIMITED installment/payment was received by the Opposite Party till the actual realization of the amount.
15. 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 Complainants; and B. Rs. 50,000 as cost of litigation.
16. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
17. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
18. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) ( J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
19.05.2023
ALLOWED PAGE 9 OF 9