Delhi

East Delhi

CC/70/2017

A. DUSHYANT - Complainant(s)

Versus

SHOURYAPURAM INFRA - Opp.Party(s)

DR. CHANDER SHAKHAR

09 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 70/2017 

 

	A. DUSHYANT S/O LATE SHRI S.R. MOHAN R/O 44, Prashant Apartment, Plot No.41,  I.P. Extension, Patparganj, Delhi - 110092	….Complainant
Versus
1	Shouryashubham infrastructures pvt. Ltd. Formerly known as Aura Infrastructure Pvt. Ltd. Having its registered office at: Shop No. 108, First Floor, Vardhman Mayuv Market, Mayur Vihar, Phase-III, Delhi – 110096	……OP1
2	M/s Nitishree Infrastructure Ltd. Having its registered office at: G-55, East of Kailash, New Delhi – 110065	……OP2
3	Mr. Anil K. Jain Director Shouryashubham Infrastructure Pvt. Ltd. Shop No. – 108, First Floor, Vardhman Mayur Market, Mayur Vihar, Phase-III, Delhi – 110096	……OP3
4	Mr. Ankur Jain Director, Shouryashubham Infrastructure Pvt. Ltd. Shop No. – 108, First Floor, Vardhman Mayur Market, Mayur Vihar, Phase-III, Delhi - 110096	……OP4

                                      

Date of Institution: 15.02.2017

Judgment Reserved on: 22.11.2022

Judgment Passed on: 09.01.2023

                  

CORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Order By: Sh. Ravi Kumar (Member)

 

JUDGEMENT

 

The Complainant has filed complaint against the OPs alleging deficiency of service by not providing the Residential Plot which was later changed to commercial shop booked by him despite of having received payment towards the same.

The Complainant in his complaint has contended that he had booked a residential plot in the project ‘Shauryapuram-NH-24’ in Ghaziabad, Uttar Pradesh and he had paid a total amount of Rs.795856/- towards the same.  Initially the Deed of Agreement for the booking of the property was entered between the complainant and OP2 on 17.02.2007 but later on after diversion of the Project in the year 2008 all communications of the complainant was done with OP1 and consequently all receipts and acknowledgments were issued by OP1.    

Pursuant to the said payment a provisional allotment of residential plot measuring 175 sq. yards was given by OP2 to the complainant vide allotment letter dated 16.01.2007.  In the beginning of the year 2008, OP2 informed the complainant that proper Government approvals have not been received by them for their upcoming Residential Project and they offered the complainant to shift his investment to their other project namely Metropolitan Aura Chimera Commercial on NH-58 Rajnagar Extension Ghaziabad which was a commercial project.

In order to secure this payment he had made, the complainant reluctantly agreed to the proposal of the OP2 for investing in the commercial project and he paid additional Rs.5000/- demanded by the OP for switching to the new project and the entire amount of Rs.795856/- was shifted/ transferred by OP2 to the new commercial project. 

On 12.07.2008 OP1 (which was formerly known as Aura Infrastructures Pvt. Ltd.) issued an allotment letter to the complainant for commercial shop No.L-ST-27 measuring 200 sq. ft. for  a total amount of Rs.875050/- after adjustment of Rs.800856/- (Rs.795856 + Rs.5000/-).  The OP1 also offered the complainant assured interest @ 11% on the payment made by the complainant till possession of the allotted commercial shop was given.  The OP1 refunded Rs.19856/- also to the complainant as excess amount that was paid by the complainant initially during the allotment time.  After the receipt of 95% of the total payment the OP1 started demanding additional payments and this project of the OP1 was also delayed.  OP1 also failed to reply to the letters sent by the complainant seeking clarification on the same and the assured interest return were also not paid to the complainant.  After lot of persuasion the OP1 released an amount of Rs.146594/- to the complainant but thereafter failed to honor the promise of paying assured interest.  The cheques issued by the OP for this purpose were also dishonored.  Subsequently, in 2016 the OP1 issued letter dated 01.06.2016, 20.06.2016, 01.07.2016 which are the copies of the notices and cancellation letter and the representation/protest of the complainant fell on deaf ears.  On 24.08.2016 the OP sent an e-mail to the complainant and informed him that his allotment has been cancelled and also issued a public notice in the newspaper.

Complainant issued legal notice dated 19.10.2016 however there was no reply/response from the OP. 

The complainant in his prayer has sought the relief as follows:

• Direct the OPs to restore the booking, done by the Complainant of the commercial shop no. L-ST-27, in Metropolitan, Aura Chimera Commercial on NH 58, Khasra no. 1134, Raj Nagar Extension, Ghaziabad, and to declare the cancellation done by the Opposite parties as unjustified, illegal and unlawful, or in alternative,
• direct the Opposite parties to refund the amount of Rs.7,81,000(Rupees Seven Lakh Eighty One Thousand Only )along with Interest @24 % p.a. to the Complainant; and
• direct the Opposite parties to pay to the complainant, the assured interest, accrued from the date of booking till the date of valid cancellation of the allotment along with interest @18 % p.a. on the same; and
• direct the Opposite parties to pay compensation/damages of Rs. 1,00,000 for the loss of reputation due to the defamatory publication in the newspaper by the opposite party;
• direct the Opposite parties to pay compensation/damages of Rs.50,000 for the mental harassment and loss suffered by the complainant; and
• direct the Opposite parties to pay a sum of Rs. 20,000/-  (Rupees Twenty Thousand Only) towards the cost of this Complaint, and/or
• pass any such and/or necessary orders which this Forum deems fit in the interest of justice and equity.     

Notice was issued to the OPs and they have filed Joint Written Statement raising the objection that the complainant had booked commercial shop and hence his case cannot be considered under the Consumer Protection Act and the complaint is time barred since allotment of commercial shop was made on 12.07.2008 whereas the complaint has been filed in 2017.  The complainant despite of issuing notice for making the payment defaulted and the OP were left with no option but to publish notice in newspaper for cancelling their allotment.  That the OP2 is not proper party since entire dispute relates to commercial property and further OP3 and OP4 are the Directors of the company and hence OP2 to OP4 are not proper and necessary parties.  The OPs have also raised objections about territorial jurisdiction of this Commission stating that expression ‘branch office’ under section 17(2) would mean branch office where cause of action arose and since the cause of action arose in Noida since all the payments were made in Noida therefore this Forum has no jurisdiction to adjudicate this matter. 

OP has also contended that the complainant did not abide by the contract for commercial shop which is not a housing construction activity covered under CPA.  The complainant has raised objections about transferring his booking from residential project to commercial project and the booking for shop with OP1 was a fresh allotment with fresh contract with OP1 to the complete exclusion of OP2.  The initial residential project was duly approved stage wise and all permissions were obtained and the story has been concocted by the complainant while changing his booking from OP2 to OP1.  The plan for integrated township of OP2 (Nitishree) was approved by GDA and stating that it was unapproved project is a wrong statement.  The complainant on his own choice approached OP2 to transfer the booking amount to the commercial project of OP1 with investment purpose in order to earn profit by selling it and therefore the complainant purchased the commercial shop from OP1 and he is not a consumer at all.  After booking of the commercial shop with OP1 the complainant did not turn up nor did he pay the dues accrued towards him which resulted in cancellation of the commercial booking made by him. 

Complainant filed Rejoinder and denied the contentions raised by the OP in their Written Statement and reiterated the contents filed before this Forum. 

The complainant has filed his evidence by way of affidavit and has marked the following documents as exhibits:

• Copy of the said cheques dated 25.10.2006 amounting to Rs.5,00,000/- are exhibited as Exhibit A (Colly).
• Copy of the provisional allotment letter dated 16.01.2007 is exhibited as Exhibit B.
• Copy of the Allotment letter dated 17.02.2007 is exhibited as Exhibit C
• Copy of the deed of agreement dated 17.02.2007 is exhibited as Exhibit D.
• Copy of the receipt dated 28.07.2007 for an amount of Rs.21,292/- is exhibited as Exhibit E
• Summary Statement of Rs.2,74,564/- from the Axis Bank home loan accout is exhibited as Exhibit F.  The receipt of Rs.5000/- dated 02.06.2008 is exhibited as Exhibit G.
• Receipt of Rs.795856/- dated 08.07.2008, adjusted towards their commercial project, is exhibited as Exhibit H.
• Copy of the allotment letter dated 12.07.2008 is exhibited as Exhibit I.
• Copy of the said assured return scheme, offered by the Opposite Party No. 1 is exhibited as Exhibit J.
• Copies of the OP1’s demand letters dated 24.09.2015, 09.10.2015, 26.12.2015, 15.01.2016, 01.02.2016, 15.02.2016, 11.04.2016 and 05.05.2016 are exhibited as Exhibit K (Colly).    
• Copy of the proof of dishonored cheques are exhibited as Exhibit L.
• Copy of the request letter to the OP1 dated 17.10.2015 is exhibited as Exhibit M.
• Copy of the cancellation notices, dated 01.06.2016, 20.06.2016 and 01.07.2016 are exhibited as Exhibit N (Colly).    
• Copy of the letter dated 11.07.2016 is exhibited as Exhibit O.
• Copy of the final Notice for cancellation, dated 01.08.2016, issued by the OPs is exhibited as Exhibit P.
• Copy of the letter dated 27.08.2016 is exhibited as Exhibit Q. 
• Copy of the email dated 24.08.2016 is exhibited as Exhibit R.
• Copy of publication in the newspaper dated 13.08.2016 is exhibited as Exhibit S.   
• Copy of the Legal Notices dated 19.10.2016 along with the postal receipt is exhibited as Exhibit T.     

OP has filed their evidence by way of affidavit but has not cited/filed any document. 

Both the sides have also filed written arguments. 

This Commission has perused the documents on record and heard the arguments of Ld. Counsel of both the sides. 

The case of the complainant is that he had booked residential plot in the project namely ‘Shauryapuram NH-24’ in Ghaziabad, Uttar Pradesh with OP2 and he had paid Rs.795856/- towards its allotment which was around 95% of the consideration amount.  However, later the OP2 informed the complainant that due to non-availability of certain permissions they are not able to perform their part of providing him the residential plot and offered him a commercial flat which was under the control of OP1 and also charged Rs.5000/- in addition and later refunded Rs.19856/- thus balance amount was Rs.781000/-.  Complainant has stated that in order to save his hard earned money he opted for the same and his amount of Rs.781000/- was transferred towards the dues (Exhibit H) to the Shop No.LST-27 which was allotted to him by OP1.  However, the shop was also not delivered by OP1 and as per letter 24^th September 2015 (Exhibit K) Complainant had to pay Rs.122392/- towards additional cost and it was also written in the said letter that the construction of the commercial block in which space No.LST-27 was allotted has been resumed.  The swapping of consideration amount from the residential project to the commercial project was done in 2008.  However, the letter of additional demand was issued in 2015 i.e. after 7 years. 

The Complainant raised objection to this additional demand as he had already paid 95% of the consideration amount to which there was no reply from OP1 and similar letter as on 24.09.2015 was again written by OP1 wherein the demand was raised to Rs. 449737/- vide their letter dated 15.01.2016 and subsequently it raised the demand of Rs.558637/- vide letter dated 11.04.2016 and 15.05.2016.  The Complainant sought clarification on this, but no response was given by OP1.  It is also note worthy to mention that when the Complainant switched over to commercial shop booking then as per the allotment assurance he was to get 11% return per month on account of delay on the part of OP1 and it has been mentioned in the complaint that the OP1 issued some cheques towards the same however the same were returned unpaid.  There is apparently contract of payment of assured return by the OP1 and Complainant had infact requested them to adjust this amount towards the additional demand raised by the OP1 vide above mentioned letters.  However, no supportive Agreement has been produced by the either side.  Since, Complainant did not pay this enhanced demand the OP1 cancelled his allotment and also published in the newspaper which are annexed with the complainant as Exhibit R and S.   

The possession of the shop was never given to the Complainant and OP1, OP3 and OP4 have failed to fulfill their obligation despite of receiving amount of Rs.781000/-.  There was a delay of 7 years in completion of the project as the transaction of swapping of plot to commercial shop took place in 2008 however cancellation was done in 2016.  As per settled law, the OP cannot compel for possession of the booked property, if there is inordinate delay in completing the project in giving possession on time. 

Therefore, the contention of OP is not well found.  Further, there are four OPs in the case and joint written statement was filed on behalf of  all the OPs wherein objection has been raised that the Complainant is not a consumer since he opted a shop for commercial purpose.  This contention of the OP is not maintainable since the original booking done by the Complainant was for residential plot in the project of OP and when there was a communication from the OP side that the project cannot be completed for want of statutory clearance then on the option given by the OP, the Complainant was compelled to swap his residential plot booking to the commercial shop booking, which according to the Complainant was done to save his hard earned money.  It is also pertinent to note that the Complainant had booked only one shop in this process and no where it has been stated that he was going to sell the shop further hence the contention of the OP is not well founded and is without any merit. 

The OP has further objected that allotment of commercial shop was made in 2008 whereas the complaint has been filed in 2017 after 9 years and therefore the same is time barred.  This contention of the OP is also not tenable as they were supposed to hand over the shop within the stipulated period however their own letter dated 14.09.2015 (Exhibit K) reveals that construction of commercial block in which the shop booked by the Complainant was allotted had resumed, which means that there was some kind of problem/hurdles which OPs were facing for constructing the commercial block that is why he had written the same also in his letter mentioned above.  Further, Hon’ble NCDRC in its latest judgment dated 06.01.2023 in Balbir Singh Dhatta Vs DLF Universal (Consumer Case No.784/2017) has held that till the possession is given the cause of action remains continuing one and in view of the same the complaint cannot be said to be time barred. 

OP has stated that OP2, OP3 and OP4 are not proper and necessary parties however this contention of the OP is in contradiction to its own written statement and also it is evident that the OP2 had transferred the funds taken by them at the time of taking the booking for residential plot in their project and later on this amount was transferred towards the consideration for booking of the commercial shop in the project of OP1.  Further, OP3 and OP4 are Directors of the Company of OP1 and therefore it cannot be contended by them that OP3 and OP4 are not proper and necessary party in the case. 

OPs have also taken objection that this Forum has no territorial jurisdiction to try this matter as all the transactions of payment etc. was done at B-111, Sector-5, Noida.  This contention of the OP is also misplaced since the OP is shown in the complaint that they are having registered office in Mayur Vihar, Delhi (East) and B-111, Sector-5, Noida as Corporate Office.  OP have not adduced evidence as to where their registered office is.  Hence, this contention of the OPs also is untenable.    

It is worth mentioning that though OP has taken several objections but they have neither produced/ filed any supporting document towards the same either with their written statement or with the affidavit of evidence filed by them whereas the complainant has relied upon specific document and has exhibited the same in support of his affidavit of evidence.   

When any person goes for booking a flat/plot in the project shown by the developer then he presumes and is also convinced by the Developer that all statutory clearances have been obtained/ shall be obtained by the developer and that person pays their hard earned money in their project.  However, they felt cheated when the developer starts giving reasons for not completing the project despite of receiving the substantial amount from these persons.  In the present case the Complainant was made to believe that he was doing booking in a project in which he will get the residential plot he booked however he got disappointed when despite of making 95% of the consideration amount he did not get the possession of the plot and finally he was informed that there are problems in the project about getting a clearance from various Authorities.  The option available to such person is to request to return their hard money by the developer which is next to impossible and sometimes they are given option to switch over to some other project of the developer as happened in the present case where complainant was offered commercial shop in the project of OP1 in place of the plot he had booked in the residential project.  Finding no option complainant opted for the same and OP2 who was the developer of residential project also transferred the amount received by him to the project of OP1 which was for booking of commercial shop.  Again the complainant suffered here also as the commercial project of OP1 also got stuck up for 7 years as the demand of additional amount was raised by OP1 on 25.09.2015 whereas the swapping of booking from residential plot to commercial shop was done in 2008 and it is also written in the letters exhibited as Exhibit K (Colly). 

Thus the conduct of the OP1, OP3 and OP4 comes under scanner as neither of their project became successful though they received the amount to the extent of 95% from the Complainant without completing their obligation.  In fact OP1, OP3 and OP4 enjoyed funds of the complainant for more than 10 years without handing over the plot/shop to the complainant.  This clearly amounts to deficiency of service on the part of OPs and this Commission directs as follows:

• OP1, OP3 and OP4 to refund (jointly and severally) Rs.781000/- along with 7% interest from 15.02.2017 along with Rs.50,000/- towards compensation and mental harassment and Rs.25,000/- towards legal expenses to the complainant within 30 days from the date of receipt of this Order failing which OPs above shall pay interest @ 9% on Rs.781000/- besides paying Rs.50000/- towards compensation and mental harassment and Rs.25000/- towards legal expenses. 

  

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.