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DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
[Via Video Conferencing]
Dr. Sangita Dhingra Sehgal, President and Anil Srivastava, Member
Ashish Khanna – Complainant
versus
T.G. Buildwell Private Limited – Opp. Party
Complaint No.786 of 2016
Decided on 12.7.2021
Counsel for the Parties:
For the Complainant: None
For the Opp. Party: None
IMPORTANT POINTS
(1) No material to show that Complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis.
(2) 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
Headnote:
Consumer Protection Act, 1986 – Section 17 (Consumer Protection Act, 2019 – Section 47) – Complaint – Complainant booked residential apartment in Opp. Party’s project - Complainant allotted Residential apartment vide Allotment letter dt. 11.08.2008 – After the stipulated time period for delivery of possession per Agreement, Complainant got served legal notice upon the Opp. Party, sought refund of the deposited amt. along with compensation for delay caused but no revert from Opp. Party – Complaint filed before this Commission – Held by the Commission: No material to show that Complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis; hence, Complainants are Consumers - Deficiency of service on part of the Opp. Party - 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 - Opp. Party was to deliver possession of the aforesaid apartment within 30 months of commencement of construction, i.e., from 25.12.2009 per Agreement – Opp. Party failed to offer the possession of the apartment even till the time of filing the present complaint.
Held: However, after the passage of the stipulated time period for delivery of possession as per the Agreement, the Complainant got served a legal notice dated 28.06.2016 upon the Opposite Party and sought refund of the deposited amount along with compensation for delay caused. The Opposite Party failed to revert to the aforesaid legal notice sent by the Complainant.
On perusal of the record before us, we fail to find any material which shows that the Complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party in answered in the negative.
Having discussed the maintainability of the present complaint, the next issue to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainants. 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) 12 SCC 512,
Upon perusal of the aforesaid clause, it is clear that the Opposite Party was to deliver possession of the aforesaid apartment within 30 months of commencement of construction. As per the annexures attached with the complaint, the Complainant has annexed a letter dated 25.12.2009 which manifests that the opposite Party had started the construction of the tower. Henceforth, 30 months from 25.12.2009 would be the date of delivery of possession i.e. on or before 25.06.2011. However, the Opposite Party has failed to offer the possession of the apartment even till the time of filing the present complaint. It has been long settled that the Complainants cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D’Lima reported at (2018) 5 SCC 442). (Paras 1, 5, 15, 16 & 18)
Result: Opp. Party is deficient in providing services to the Complainant since it has failed to handover the possession of the apartment within the stipulated time period and the Complainant is entitled for the refund of money deposited; Opp. Party to pay an amt. of Rs. 22,50,000/- along with interest, Rs. 1,00,000/- as cost for mental agony and harassment, litigation cost to the extent of Rs. 50,000/-.
JUDGMENT
Dr. Sangita Dhingra Sehgal, President.—Brief facts necessary for the adjudication of the present complaint are that the Complainant, on 17.01.2008, booked a residential apartment in the project of the Opposite party by the name and style of “Tivoli Holiday” located in Village Dharuhera, Tehsil and District Rewari, Haryana.
2. Vide Allotment letter dated 11.08.2008, the Complainant was allotted Residential apartment No. 3B-004 in Tower TG-V, admeasuring 144 sq.mt. Subsequently, the parties entered into an Apartment Buyer Agreement (hereinafter referred to as “Agreement”) on 26.08.2008, wherein the Basic Sale Price was mutually agreed at Rs. 62,00,000/-. The Complainant had opted for a Construction Linked Payment Plan. For ready reference the same is produced as follows:-
Construction Linked Payment Plan
| S. No. | Amount Due | Installment |
| 1 | At the time of Booking | 15 % of BSP |
| 2 | Within 30 days of Booking | 10% of BSP + 50% of PLC |
| 3 | On start of Construction | 10% of BSP + 50% of PLC |
| 4 | On completion of Plinth Level | 10% of BSP + 50% of Car Park Charges |
| 5 | On Casting of 2nd Floor Slab | 10% of BSP + 50% of Car Park Charges |
| 6 | On Casting of 5th Floor Slab | 10% of BSP |
| 7 | On Casting of 8th Floor Slab | 10% of BSP |
| 8 | On Casting of 11th Floor Slab | 10% of BSP |
| 9 | On Casting of 14th Floor Slab | 10% of BSP |
| 10 | On Offer of Possession | 5% of BSP + IFMS + |
Stamp Duty, Registration
Charges and any other
charges and/or statutory
and other Misc. Charges
3. Clause 15 of the agreement provided that the possession of the aforesaid apartment would be delivered within 30 months of commencement of construction of the particular tower. The Opposite Party, vide letter dated 25.12.2009, informed that Complainant that they have received all the necessary clearances and have commenced the construction work.
4. In pursuance of the aforesaid, the Complainant made payments to the extent of Rs. 22,50,000/- till 13.10.2010, as and when demanded by the Opposite Party.
5. However, after the passage of the stipulated time period for delivery of possession as per the Agreement, the Complainant got served a legal notice dated 28.06.2016 upon the Opposite Party and sought refund of the deposited amount along with compensation for delay caused. The Opposite Party failed to revert to the aforesaid legal notice sent by the Complainant.
6. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant approached this commission.
7. The Opposite Party contested the present case and raised some preliminary objections as to the maintainability of the present complaint and contended (a) that the said plot has been purchased solely for the purpose of investment, merely for “Commercial Purpose”, hence, the Complainant is not a Consumer within the provisions of the Consumer Protection Act, 1986; (b) that the Complainant has failed to establish any kind of deficiency in providing services by the Opposite Party. Pressing the aforesaid preliminary objections, the Opposite Party prayed that the present Consumer Complaint should be dismissed.
8. The Complainant filed his Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.
9. After the completion of the pleadings, the case was listed for Final Arguments on 08.07.2021. Since none appeared on behalf of the parties, the following order was passed:-
“Parties were directed to file written arguments. Written arguments of behalf of the complainant have been filed, however, the OP has chosen no to file the same.
Given the fact that the case pertains to the year 2016 and despite multiple opportunities to the OP to file the Written Arguments, the case calls for final
