DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. Sangita Dhingra Sehgal, President and Anil Srivastava, Member
[Via Video Conferencing]
Sh. Rajiv Nanda – Complainant
versus
Supertech Ltd. – Opp. Party
Complaint No.985 of 2018
Decided on 27.9.2021

IMPORTANT POINTS
(1) Mere allegation that purchase of the property is for commercial purpose cannot be ground to reject the consumer complaint.
(2) In the event a person entitled to seek additional special remedy provided under the statutes does not opt for additional/special remedy, is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration; it is only the case where specific/special remedies are provided for and which are opted by aggrieved person/complainant that judicial authority can refuse to relegate the parties to the arbitration.
(3) Opp. Party is deficient in providing its services to the Complainant as Opp. Party had given false assurance with respect to the time for delivery of possession of the said flat.

Headnote:

Consumer Protection Act, 1986 – Section 17(b) [Consumer Protection Act, 2019 – Section 47(1)(b)] – Complaint - Complainant booked a residential unit with the Opp. party in Greater Noida - OP issued the allotment ltr/agreement dt. 30.09.2013 in favour of the Complainant - Possession of the flat has not been handed over by the Opp. Party - Complainant over the time had paid a sum of Rs. 25,37,068/- to Opp. Party - Mere allegation that purchase of the property is for commercial purpose cannot be ground to reject the consumer complaint - No hesitation in coming to the conclusion that since the Regd. Office of the 1st Opp. Party is situated in Delhi, this Commission did have the territorial jurisdiction to entertain the Complaint - In the event a person entitled to seek additional special remedy provided under the statutes does not opt for additional/special remedy, is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration; it is only the case where specific/special remedies are provided for and which are opted by aggrieved person/complainant that judicial authority can refuse to relegate the parties to the arbitration - Complainant cannot be compelled to accept the offer of possession at a belated stage - 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 - Opp. Party is deficient in providing its services to the Complainant as Opp. Party had given false assurance with respect to the time for delivery of possession of the said flat and kept hard earned money of Complainants for abt. 8 years!

Held: In the present case, the Opposite Party has merely made a statement that the Complainant has purchased the flat for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainant 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.

The Hon’ble National Commission in the case of Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, has held as under:

“Having heard learned Counsel for the parties at some length, we are of the opinion that the order cannot be sustained. It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint. In the light of the said provision, in our view, it was open to the Complainant to choose the Forum to file the Complaint, which on the second occasion he decided to file before the State Commission at Delhi.”

The next preliminary objection raised by the Opposite Party is that since there exists an arbitration clause in the flat buyer agreement dated 30.09.2013, the parties should be referred to arbitration and this commission is barred from exercising its jurisdiction. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), wherein the Apex court has held as under:-

“55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”

Deficiency of Service

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.

We deem it appropriate to refer to Aashish Oberai vs. Emaar MGF Land Limited reported in I (2017) CPJ 17 (NC), wherein the Hon’ble National Commission has held as under:

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.

Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the complainant with respect to the time for delivery of possession of the said Flat and kept the hard earned money of the complainants for about 8 years. Moreover, the Opposite Party failed to handover the possession of the said unit to the complainant within the stipulated time period and therefore, now the complainant is not bound to take the possession of the said flat after the stipulated period.

(Paras 13, 16, 18, 20, 22 & 23)

Result: Direct the Opp. Party to refund the entire amt. paid by the complainants, i.e., Rs. 25,37,068 /- along with interest @ 6% p.a.