Delhi

New Delhi

CC/611/2014

Satvir Sharma - Complainant(s)

Versus

M/S. Ganpati Builders - Opp.Party(s)

23 Nov 2022

ORDER

 

 

CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.611/2014                               

In the matter of:

1. Mr. Satvir Sharma

Son of Late Shri Tek Chand Sharam

R/o MB-80, Shakarpur, Delhi-110092

2. Hari Dutt Sharma

Son of Late Shri Tek Chand Sharma

R/o MB-80, Shakarpur,

Delhi-110092

 

Versus

 

1. Ganpati Builders

702, New Delhi House,

27, Barakhamba Road,

New Delhi-110001

Also At

Chamber No. 8,

Kailash Tower, Kaushambi

Ghaziabad UP

2. Shri Sudhir

M/s Sudhir Properties

R-22, Khaneja Complexm

Shakarpur, Delhi-110092                                                                                               …..OPPOSITE PARTIES

Quorum:              

         Ms.PoonamChaudhry, President

          Shri Bariq Ahmad, Member

           

                                                                                                                     Date of Institution:13.08.2014                                                                                                                                                                           Date of Order       :23.11.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under the provision of the Consumer Protection Act, 1986 in short CP Act. Briefly stated facts of the case are that the complainants wanted to buy a good quality Farm House in Mathura. The complainant read the advertisements issued by the Opposite Party No.-1 in various newspapers regarding the “Ganpati Farms and Resorts”. The opposite party No.-1 made very high claims regarding the quality as well as very timely, prompt and efficient services to its customers.
2. It is alleged that believing the representations and high claims made by the opposite party no.-1, the complainant, contacted opposite party no.-2. The complainant booked a Farm House bearing No. 8 in Ganpati Farm and Resorts, Vrindawan, UP through opposite party no.-2, to be constructed by opposite party no.-1. The cost of the Farm House was Rs. 22,00,000/-.
3. It is further alleged that according to the assurance of the opposite party no.-1 as well as 2 the farm house in question was to be handed over to the complainant within 36 months from the date of booking.
4. The complainant paid an amount of Rs. 50,000/- through cheque bearing no. 880147 dated 05.04.2006 drawn on Bank of Baroda, Shakarpur, Delhi-90 to the opposite party no.-1 through opposite party no.-2 as booking amount, Complainant was told that the agreement would be prepared later.
5. Thereafter on demand of OP-1, complainant deposited an amount of Rs. 2,00,000/- on 15.05.2006 with OP No.-1 through OP NO.-2 Thereafter the complainant deposited an amount of Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand) with the opposite party no.-1 on 23.04.2007. On 31.05.2007, again the complainant deposited an amount of Rs. 2,50,000/- with the opposite party no.-1. Thus a total sum of Rs. 7,50,000/- (Rupees Seven Lakh Fifty Thousand) was paid by complainant to OPs. The complainant thereafter stopped further payment of installments as no development/construction was found at the site and the agreement was not provided.
6. It is also alleged that the complainant is facing extreme hardship and harassment due deficient services of the opposite party no.-1 and 2. The complainant has suffered extreme financial loss due to non-delivery of the farm house in question despite expiry of nearly about five years from the assured delivery date and eight years from the date of booking. The act of the opposite parties amounts to unfair trade practices and deficiency in service.
7. It is prayed the opposite party no.-1 be directed to either hand over the possession of fully developed farm house in question or in alternate refund the amount of Rs. 7,50,000/- (Rupees Seven Lakh Fifty Thousand) with interest @ 24% PA to the complainant. The opposite party no.-1 be also directed to pay Rs. 2,00,000/- (Rupees Two Lakh) as compensation for harassment, mental agony and pain. The opposite parties No. 1 and 2 jointly or severally be directed to pay Rs. 50,000/- as cost of present complaint.
8. Notice of the complaint was issued to opposite parties. OP No. 1 contested the case, reply was filed stating that this Forum did not have territorial jurisdiction as the complainant booked a farm house at Vrindavan, U.P. It was further stated that complainant had agreed to purchase an open area for construction of farm house, the construction was to be done by complainant. OP-1 was only to deliver the plot of land for development and construction of farmhouse. It was also stated that there was no deficiency of service on part of OP-1 within the meaning of the CP Act.
9. It was also stated that complainant has no cause of action as sale of land/plot would not be covered under this Act. It was further stated that Complainants were not a consumer but investors as they had booked the plot in question to earn profit. It was also stated that complainant was guilty of not making timely payments and no payment was made after May, 2007. It was also alleged OP-1 was ready to hand over possession of the plot provided complainant paid the balance amount with interest at the rate of 24% p.a. It was also stated that complaint was barred by limitation as the last payment was made in 2007.
10. OP No.-2 did not file reply.
11. The complainant filed rejoinder reaffirming therein the averments made in the complaint and denying all the allegations made in the written statement of OP No.-1.
12. The complaint and OP No.-1 filed their evidence by way of affidavits. We have heard Ld. counsels for parties.
13.  We shall first decide thee preliminary objections raised by OP NO.-1. It was contended by OP No.-1 that this Forum does not have pecuniary jurisdiction. The said contention was decided vide order dated 02.02.2022. and it was held as the complainant has claimed refund of Rs. 7,50,000/- (Seven Lakh Fifty Thousand Only), the amount paid for the plot in question, and compensation of Rs. 2,00,000/- (Two Lakh Only) as compensation for mental agony and cost Rs. 50,000/- (Fifty Thousand Only) which did not exceed Rs. 20,00,000/- (Twenty Lakh Only) at the time of filing of the complaint.
14. As regards the objection taken by OP No.-1 that this Forum did not have territorial jurisdiction it is to be noted that Section 11 of the Consumer Protection Act, which relates to Jurisdiction of the District Forum provides as under:
19.  

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part, arises.
4. A complaint shall be instituted in a District Forum within the local limits of which OP resides or works for gain”.

Thus as office of OP No.-1 is situated within the territorial jurisdiction of this Forum, this Forum has territorial jurisdiction to try the complaint. The said objection of OP No.-1 is also rejected.

15.  As regards the next objection taken by OP No.-1 that complaint is not maintainable as the complainant is not a consumer. We are of the view that no evidence was brought on record by OP to show that Complaint is not a consumer or he booked the plot for business in real estate. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.” Thus we are of the view that the said objection is without any merits and is rejected.
16. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
17. The fact that complainant booked a plot in the project of OP No.-1 is an admitted case as evident from the evidence of the parties. The complainant relied receipt of payment Rs. 7,50,000/- (Rupees Seven Lakh Fifty Thousand). The receipt of the amount were issued by OP No.-1. The receipts are not controverted by OP No.-1.
18. It was submitted on behalf of complainant  that complainant had paid Rs.

 

7,50,000/- (Rupees Seven Lakh Fifty Thousand)to the OP No.-1 but OP No.-1 failed to deliver the possession of the farm house, we are of the view that admittedly, there is inordinate delay in handing over the possession of the plot in question as it was to be handed over within 36 months from the date of booking i.e. upto April 2009 which amounts to deficiency in service.

19. It was further submitted that the prolonged in handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to constructs the property within 36 months from the date of booking in the year 2006, but it failed to do so. It is to be noted that ss regard deficiency in services, Hon;ble Supreme Court has heldin Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
20. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of thefarm house clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession and is entitled to seek refund of the amount paid by him, along with compensation.
21. It is also to be noted Section 2 (47) of the Consumer Protection Act, 2019, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice” and includes any of the practices enumerated therein.
22. We are further of the view that the cause of action being the continuing one as the amount advanced by complainants was not refunded neither possession of the farm house was handed over to them, the complaint is within the period of limitation.
23. As regards the contention of OP that there was no deficiency of service on part of OP no.-1, and the complaint was not maintainable as it relates to deal of plot of land. It is to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 M/s Imperia Structures Limited Vs. Anil Patni and Anr.
24. For the foregoing we thus, hold that OP No.-1 and 2 guilty of deficiency in services. We direct OP No.-1/ Ganpati Builders to pay refund Rs. 7,50,000/- (Rupees Seven Lakh Fifty Thousand) to the complainant along with interest @ 9% p.a. from the date of deposit till realization, within of 4 weeks from the date of receipt of order, failing which OP No.-1 and 2 will be liable to pay interest @ 12% p.a. for delayed period till realization. We also award compensation of Rs. 50,000/- (Rupees Fifty Thousand) for mental agony.

A copy of the order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

File be consigned to record room along with a copy of the order.

 

(POONAM CHAUDHRY)

                                                    President

 

(BARIQ AHMAD)

 Member