Delhi

New Delhi

CC/516/2014

Anil Dua - Complainant(s)

Versus

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

29 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.516/2014                               

     In the matter of:

Mr. Anil Dua

S/o Late Sh. Sukhdev DUa,

R/o Flat No. 101, 1^st Floor,

Sarojini Nagar, New Delhi                                      ……..COMPLAINANTS

 

 

 

Versus

TDI Infrastructure Ltd.

Through Its Managing Director Sh. Ravinder Kumar Taneja,

Registered Office:- 9, Kasturba Gandhi Marg,

New Delhi-110001                                      

Also at:

TDI Infrastructure Ltd.

Customer Support Centre, UG-Floor

Vandana Building, 11 Tolstoy Marg,

Connaught Place, New Delhi                                 ...........Opposite Party

 

 

Quorum:

          Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                                                                    Dated of Institution :10.07.2014                                                                                                                                                                         Date of      Order         : 29.08.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CP Act) against the respondent/opposite party alleging deficiency of services.
2. Briefly stated the facts of the case are that the respondent/ opposite party i.e. M/s TDI Infrastructure Limited (Formerly known as Intime Promoters Private Limited, is a company duly incorporated under the  Companies Act, 1956 and Sh. Ravinder Kumar Taneja its the Managing Director. It is also alleged the respondent is having their registered office at 9, Kasturba Gandhi Marg, New Delhi-110001.
3. That the respondent/ opposite party launched their residential cum commercial project at TDI City, Kundli, Sonepat, Haryana. The complainant was lured and enticed by the advertisement given by the respondent in January, 2006 and he booked a flat in the project of the respondent.
4. It is further alleged that the complainant was allotted a flat/ block no. U-3, 1103- Kingbury Flats at TDI city, Kundli, Sonepat and for this the complainant was allotted a code no. KFL-14471-DL-KFL-5 vide allotment letter dated 28.04.2009 for the said flat.
5. It is also alleged that the complainant made the payment to the respondent from time to time as under :-

Registration amount paid on 7.02.2006 = Rs. 3,00,000/-

Installment No. 2 paid on 27.11.2006 = Rs. 2,50,000/-

Installment No. 3 paid on 28.04.2009 = Rs. 1,83,071/-

EDC paid on 20.04.2011 = Rs. 2,73,615/-

Interest on EDC paid on 20.04.2011 = Rs. 6747/-

6. It is also stated that the complainant also sent a cheque for a sum of Rs. 1,87,786/- (Rupees One Lakh Eighty Seven Thousand Seven Hundred Eighty Six) on 15.11.2011 through speed post as the same was not accepted by staff of the respondent. But OP neither acknowledged it nor encashed it as revealed from the account of the complainant.
7. It is also alleged that, thereafter, a demand was raised by the respndent vide their letter dated 12.04.2012 to pay a sum of Rs. 6,12,331.43 (Rupees Six Lakh Twelve Thousand Three Hundred Thirty One and Forty Three Paise)  on or before 23.04.2012 in respect of flat no. U3-1103. The complainant accordingly sent a cheque for a sum of Rs. 6,12,331.43 (Rupees Six Lakh Twelve Thousand Three Hundred Thirty One and Forty Three Paise)  through courier duly received on 21.04.2012 by the respondent. But it was not encashed by the respondent.
8. It is also stated thereafter, the complainant made several personal visits to the office of OP but could not get any satisfactory reply as to what is going on with the flat allotted to the complainant.
9. It is further alleged that the complainant has parted with a sum of Rs. 10,13,433/- (Rupees Ten Lakh Thirteen Thousand Four Hundred Thirty Three) plus a sum of Rs. 6,12,331.43 (Rupees Six Lakh Twelve Thousand Three Hundred Thirty One and Forty Three Paise). But in the year 2013 the complainant was offered alternate flat on payment of 50% more cost in some new up coming project which was not certain  and may take another 5 to 6 years. The act of the respondent amount to cheating to the complainant.
10.  It is further alleged the complainant got sent a legal notice dated 06.08.2013 served on OP. The respondent in spite of the receipt of notice did not reply to the same. It is also alleged that the complainant has not filed any other complaint in any other forum or in any court.
11. It is prayed that OP be directed to hand over the possession of flat no. U-3, 1103, Kingburi flat at TDI city, Kundli, Sonepat, Haryana OR in alternate return the amount deposited alongwith 24% per annum interest and also pay compensation of Rs. 50,000/- (Rupees Fifty Thousand) to the complainant for causing mental agony and also to pay the cost of the litigation.
12. Notice of the complaint was issued to OP. OP entered appearance and filed written statement alleging inter alia that this Commission cannot grant the relief of specific performance. It was also stated that the complainant was barred by limitation. It was further stated that respondent had offered provisional allotment, the complainant accepted the same. It was also stated all payments made by complainant were acknowledged vide receipt no. 53721 dated 27.11.2006 and receipt no. 96802 dated 28.04.2009. It was also stated that complainant failed to pay the EDC charges which are statutory charges..
13. It was also alleged that on account of unavailable circumstances the height of tower, in when complainant was allotted a flat was reduced as such flat allotted to complainant could not be developed. It was also stated the complainant was offered alternate flat but the complainant did not come forwards for allotment of the same. It was also alleged that there was no deficiency of service on part of OP. It was also alleged that as complainant had invested money for earning profit as such complaint was not maintainable.
14. It was further stated that complaint is barred by limitation, as last payment was made by complainant on 20.04.2011. It is also stated that complainant was a defaulter in making payment. It was further stated that the complaint was not maintainable under the Consumer Protection Act, 1986 as there was no deficiency of service on part of OP.
15.  It was denied that complainant sent a cheque for Rs. 1,87,786 (Rupees One Lakh Eighty Seven Thousand Seven Hundred Eighty Six) on 15.11.2011 or a cheque for Rs. 6,12,331.43 (Rupees Six Lakh Twelve Thousand Three Hundred Thirty One and Forty Three Paise) to OP. It was denied that any legal notice was sent to OP. It was prayed that complaint be dismissed.
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 flat in the project of OP is an admitted fact as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement and receipt of payment. The receipt of payments have not been controverted by OP.
18. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid 10,13,433/- (Rupees Ten Lakh Thirteen Thousand four Hundred Thirty Three) and a sum of Rs. 6,12,331.43/- (Rupees Six Lakh Twelve Thousand Three Hundred Thirty One and Forty Three Paise)to the OP but OP failed to deliver the possession of property and the date of booking 27.02.2006. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to construct the property in question and hand over possession to complainant but it failed to do so.
19. On the other hand it was submitted on behalf of the OP the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, 2019, therefore, the Complaint is liable to be dismissed.
20. It is to be noted that as regards 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.
21. 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. 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.
22. 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 to complainant by OP which amounts to deficiency in service.
23. It is also to be noted Section 2 (r) of the Consumer Protection Act, 1986, 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.
24. 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 as possession of flat in question was not handed over by OP to complainant, the complainant was justified in claiming refund of the amount deposited by him with compensation.

25. 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 flat was handed over to him, the complaint is within the period of limitation. We accordingly reject the contention of OP that complainant is barred by limitation.
26. As regards the contention of OP that complaint is not maintainable, as complainant ought to have filed a suit for specific performance. In this regard 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 Anothers.
27. As regards the objection taken by OP that complainant is not a consumer within the meaning of Consumer Protection Act. we are of the view that no evidence was brought on record by OP to show that Complainant 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 as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
28. We thus, hold that OP was guilty of deficiency in services. We also find that Complainant was not at fault for the delay which occurred in the completion of project. We further hold that there are no reasons to justify the delay in completion of the project. We accordingly direct OP/TDI Infrastructure to refund the amount Rs. 10,13,433/- (Rupees Ten Lakh Thirteen Thousand four Hundred Thirty Three) to the complainant along with interest @ 18% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order failing which OP is liable to pay interest @ 24% p.a. till realization. We also award Rs. 50,000/- (Fifty Thousand Only) as compensation and Rs. 20,000/- (Rupees Twenty Thousand) as cost of litigation. Ld. counsel for complainant relied upon a decision of Hon’ble National Commission in Consumer Case No. 1229/2015 titled Poonam Vasisht Vs. Parsavnath Developers Ltd. decided on 11.04.2022. for award of interest of 18% p.a. for not handing over possession of the unit by OP to complainant as unit was not completed even till filing of complaint.

A copy of this 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)                                                      (ADARSH NAIN) 

                                Member                                                                          Member