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DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Sangita Dhingra Sehgal, (President) and Rajan Sharma, Member (Judicial)
Mrs. Jasveen Kaur —Complainant
versus
Parsvnath Developers Ltd. —Opp. Party
Complaint Case No.1618 of 2016
Decided on 5.5.2022
For the Complainant:Ravinder Yadav and Arti Anupriya, Advocates
For the Opp. Party:Rakesh Bhardwaj and T.P. Chauhan, Advocates
IMPORTANT POINTS
(1) Commercial Purpose - Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint.
(2) Complicated questions - nothing cogent has been brought on record by the Opposite Party which would reflect that there are complicated questions involved in the present dispute which could not be settled on the basis of the pleadings filed on behalf of the contesting parties.
(3) False Assurance - Delay in handing over possession - Opposite Party 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 handing over the possession of the said plot and kept the hard-earned money of the complainant for about 15 years.
Headnote:
(A) Consumer Protection Act, 1986 – Section 17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Delay in allotment of Apartment - Allegation of Commercial Purpose – not a ground to reject Consumer Compliant - Whether The Complainant Falls Under The Definition Of ‘Consumer’ As Per The Consumer Protection Act, 1986 - It is for the Opposite Party to prove that the flat purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant - Opposite Party has merely made a statement that the Complainant purchased the plot 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. [Paras 10, 11].
(B) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Delay in allotment of Apartment – Complicated questions of fact – Jurisdiction of State Commission – If Barred - Whether The Jurisdiction Of State Commission Is Barred And Only The Civil Court Has Jurisdiction To Adjudicate Complaint - Complainant entered into an agreement to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honour the terms of the agreement, aggrieved by which, the Complainant has approached this commission. Hence, the Complainant is entitled to file the present complaint before this commission since the Complainant is aggrieved by the deficient services of the Opposite Party i.e., the failure of the Opposite Party to handover the possession of the said plot within a stipulated time period – Thus, nothing cogent has been brought on record by the Opposite Party which would reflect that there are complicated questions involved in the present dispute which could not be settled on the basis of the pleadings filed on behalf of the contesting parties – Also, the complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the Opposite Party. [Paras 16 to 19].
(C) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – False Assurance - Alleged delay of 15 years in allotment of Flat - Whether The Opposite Party Is Deficient In Providing Its Services To The Complainant - The opposite party failed to offer possession of the said plot within the stipulated period – Thus, Opposite Party 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 handing over the possession of the said plot and kept the hard-earned money of the complainant for about 15 years – Thus direct the Opposite Party to refund the entire amount paid by the complainant i.e., Rs. 19,01,325/- along with interest – Compliant allowed.
Result: Compliant allowed.
JUDGMENT
Sangita Dhingra Sehgal, (President).—The present Consumer Complaint has been filed before this Commission under Section 17 of the Consumer Protection Act, 1986, by the complainant alleging deficiency in service on the part of Opposite Party and has prayed the following reliefs:
(a) Direct Opposite Party to refund entire amount of Rs. 19,01,325/- along with interest @ 24% p.a from the date of respective payment till its realization to the complainant,
(b) Direct the Opposite Party to pay damages of Rs. 10,00,000/- to complainants on account of losses, mental agony, pain, suffering and harassment suffered due to deficiency in service and unfair and deceptive trade practice of the opposite party,
(c) Impose Exemplary costs upon the opposite party for cheating, misappropriation and delay in delivering possession;
(d) Award Complainants Rs. 1,00,000/- as cost of this litigation; And;
(e) Pass any other or further orders/direction as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.
2. Brief facts necessary for the adjudication of the present complaint are that the complainant booked a residential plot bearing No. B-3296 with the Opposite Party in the project named ‘Parsvnath City’ at Sonepat, Haryana. The Opposite Party had assured the complainant through letter dated 24.11.2011 that the possession of the said plot will be handed over in the month of Oct-Nov 2012. However, the same has not been handed till date. The complainant sent legal notice dated 24.08.2016 to the opposite party seeking refund of the amount already paid by her alongwith interest but was of no avail.
The complainant had paid a sum of Rs. 19,01,325/- to the opposite party as and when demanded by it.
3. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the complainant is not “Consumer” as defined under the Consumer Protection Act, 1986 as the said plot has been purchased for investment purpose in order to earn profit. He further submitted that the jurisdiction of this commission is barred as the present complaint involves complicated questions of facts and law.
4. The counsel for the opposite party submitted that the complainant was irregular in making payments. Pressing the aforesaid objections, the counsel appearing on behalf of the opposite party prayed that the complaint should be dismissed.
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. The fact that the Complainant had booked a plot with the Opposite Party is evident from the material available before us. Payment to the extent of Rs. 19,01,325/- made by the Complainant to the Opposite Party is also evident from the receipts issued by the opposite party, attached with the complaint.
Whether The Complainant Falls Under The Definition Of ‘Consumer’ As Per The Consumer Protection Act, 1986?
8. The Opposite Party contended that the complainant is not Consumer as defined under the Consumer Protection Act, 1986 as she invested the money to earn profit, that is for commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
“6. ……. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two
