Delhi

New Delhi

CC/328/2010

Raj Kumar - Complainant(s)

Versus

M/S. Taneja Developers & Infrastructure Ltd. - Opp.Party(s)

04 Aug 2022

ORDER

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.328/2010                               

In the matter of:

 

          Raj Kumar

S/o Sh. Mahinder

R/o 22/696 Bharat Puri, Kath Mandi

Distt. Sonepat-131001, Haryana                         ……..COMPLAINANT

 

Versus

 

Taneja Developers and Infrastructure Ltd.

9, KG Marg, New Delhi-1                                                           ……OPPOSITE PARTY

                                                                           

 

Dated of Institution: 07.09.2021    

Date of Order :          04.08.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of Consumer Protection Act, 1986 (in short CP Act) by complainant against opposite party (in short OP) alleging deficiency in services.
2. The facts in brief of the case are that the complainant booked a plot in the projects of the OP in Kundli, Sonepat (Haryana) on 23.02.2006. The complainant/paid an amount of Rs. 3,00,000/- (Rupees Three Lakh) by way of a cheque on 23.02.2006. At the time of booking the complainant was assured that possession of the plot would be given within a period of two years from the date of booking. However despite the lapse of a period of four years, OP did not a lot the plot. OP also did not pay any heed to the request of complainant for refund of money. On 17.01.2009, OP paid an amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) to the complainant by way of a cheque. The said amount was received by the complainant under protest. Complainant had prayed for refund of balance amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) alongwith interst @ 18% p.a. (on the booking amount of Rs. 3,00,000/-) for the period from 23.02.2006 to 22.02.2009. Interst @ 18% p.a. on the balance amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) for the period from 23.02.2009 to 22.02.2010 has also been sought. Interest @ 18% p.a. on the balance amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) from 23.02.2010 till the date of its realization complainant has also been prayed for compensation to the tune of Rs. 5,00,000/- (Rupees Five Lakh) and litigation charges of Rs. 1,00,000/- (Rupees One Lakh).
3. OP contested the case. Reply was filed stating that complaint has no cause of action. The complainant was liable to be dismissed under Order 7 Rule 11 CPC. It was also alleged that complaint was bad for no joinder of parties as the respondent is only an associate company of M/s TDI Infrastructure Ltd, the developer of the project. It was also stated that at the time of provisional allotment complainant paid Rs. 25,000/- (Rupees Twenty Five Thousand). The provisional allotment was thereafter confirmed to final allotment.
4. It was stated that there is no deficiency of service or unfair trade practice on the part of the OP, in fact it is the complainant who is a defaulting party. It was also alleged that complainant was guilty of concealment of material facts and had not come with clean hands.
5. It was further alleged that the complainant was a defaulter in making the payments of sale consideration, in terms of schedule of payments as agreed. Due to non-payment, registration was cancelled as such the complainant was not entitled for the refund and complainant was informed that 50% booking amount was being deducted as per the terms and conditions of Advance registration form. OP offered the refund of 50% of the booking amount. The complainant after accepting the same was estopped from filing the present complaint. It was prayed that complaint be dismissed.
6. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
7. The fact that complainant booked a flat in the project of OP is proved from the evidence led by the parties. The complainant has filed receipt of payment Rs. 300,000/- (Rupees Three Lakh) The receipt is not controverted by OP.
8. It was contended on the behalf of the complainant that OP was deficient in providing its services as possession of flat was not given even till the filing of complaint. It was submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party assured at the time of booking that possession would be handed over within 2 years from the date of booking. It is to be noted as regard deficiency in services, Hon;ble Supreme Court has heldin ArifurRahman 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.
9. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’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 the flat clearly amounts to deficiency of service. A person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
10. On the other hand it was submitted on behalf of the OP that the high rise building require strong base and development takes considerable time. It was also alleged that complainant did not deposite the agreed amount, as such the flat could not be allotted. It was also alleged that registration of complainant was cancelled and 50% of the registration amount was forfeited. It was also argued that the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
11. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
12. It is to be noted Section 2 (r) of the Consumer Protection Act, 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. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
13. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’:Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainant was justifiedin claiming refund of the amount deposited by him with compensation.

14. We are further of the view that the cause of action being the continuing as the amount advanced by complainant was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
15. We are of the view that OP was not entitled to cancel the registration and forfeited the money as OP did not develop the project even till filing of complainant. There is nothing in record to show that the project was developed as averments made in. Para 6 of the complaint was not denied.
16.  We thus, hold that OP was guilty of deficiency in services. We accordingly direct OP Taneja Developers and Infrastructure Ltd. to refund the balance amount Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) to the complainant along with interest @ 9% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP is liable to pay interest @ 12% p.a. for the delayed period.
17. A copy of this order be given/sent 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)                                                                                                 (ADARSH NAIN)  

        MEMBER                                                                                                                         MEMBER