DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. Sangita Dhingra Sehgal, President and Anil Srivastava, Member
[Court hearing convened via video conferencing on account of Covid-19]
Sh. Shashi Bhushan – Complainant
versus
T.D.I. Infrastructure Ltd. – Opp. Party
Complaint No.357 of 2017
Decided on 22.9.2021

IMPORTANT POINTS
(1) Legitimate expectations are belied when the Opp. Party is guilty of delay of years in the fulfilment of a contractual obligation.
(2) No document showing the receipt of the cancellation letter to the complainant was filed by the Opp. Party.
(3) Opp. Party failed to show that demands raised by it were per the payment plan mentioned in Annexure - II of the Apartment Buyer Agreement.

Headnote:

Consumer Protection Act, 1986 – Section 17(b) [Consumer Protection Act, 2019 – Section 47(1)(b)] – Complaint - Complainant booked a duplex flat in Opp. Party’s project in Kundly, Sonepat - Complainant over the time had paid a sum of Rs. 22,41,411/- to the Opp. Party - Mere allegation that the purchase of the property is for commercial purpose cannot be ground to reject the present consumer complaint - Present complaint is not barred by limitation - Consumer Protection Act, 1986 - Section 2(1)(g) [Consumer Protection Act, 2019 – Section 9(11)(i)] - Deficiency of Service - Flat purchasers suffer agony and harassment, as a result of default of the developer - Legitimate expectations are belied when the Opp. Party guilty of delay of years in fulfilment of a contractual obligation - No document showing the receipt of the cancellation letter to the complainant was filed by the Opp. Party – Opp. Party failed to show that demands raised by it were per the payment plan mentioned in Annexure - II of Apartment Buyer Agreement - Failed to find any document which shows delivery of demand letters by Opp. Party to the Complainant - No legitimate reasons that justify cancellation of allotment of the complainant and transferring the said flat to somebody else.

Held: In the present case, the Opposite Party has merely made a statement that the Complainant has purchased the flat to earn profit and on perusal of the record before us, we fail to find any material which shows that the Complainant purchased the flat for commercial interest or is 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 flats. 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 is answered in the negative.

We further failed to find any document which shows that the cancellation letter was delivered to the complainant before October 2016 or the complainant know about the cancellation letter before 2016. In these circumstances, we hold that the cause of action lastly arose in favour of the complainant in October, 2016, when he came to know about the cancellation of his allotment. Furthermore, the present complaint is filed in the year 2017, which is within 2 years as provided under Section 24A of the Consumer Protection Act, 1986. Therefore, the present complaint is not barred by limitation.

Deficiency of Service

17. Having discussed the preliminary objections raised on behalf of the Opposite Party, the next issue which arises is whether the Opposite Party is actually deficient in providing its services to the complainant or not. 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 (3) RCR (Civil) 544, wherein it has been discussed as follows:

“23. …….The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:

(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

24. A 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. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression ‘service’ in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.

The allotment of the complainant was cancelled by the opposite party vide letter dated 17.12.2014 due to failure in timely payments by the complainant. We further note that the complainant had already paid Rs. 22,41,411/- (around 50% of the basic sale price) to the opposite party by the time his allotment was cancelled by the opposite party. The opposite party contended that various demand letters were sent to the complainant for making payment as per the payment schedule. However, we failed to find any document which shows us the delivery of these demand letters to the complainant. Even no document showing the receipt of the cancellation letter to the complainant was filed by the opposite party. Moreover, the opposite party failed to show that the demands were raised as per the payment plan mentioned in Annexure - II of the apartment buyer agreement dated 07.06.2012. The opposite party further failed to show us the stage till which the construction of the project is complete now.

In these aforesaid circumstances, we hold that there are no legitimate reasons which will justify the cancellation of the allotment of the complainant and transferring the said flat to somebody else. Consequently, the Opposite Party is deficient in providing its services to Complainant, due to its failure to handover the possession of the said flat within the stipulated time and cancelling the said allotment without any justified reasons. (Paras 13, 16, 17, 19 & 20)

Result: Direct Opp. Party to refund the entire amt. (Rs. 22,41,411/-) paid by the Complainant along with interest @ 6% p.a.