DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Sangita Dhingra Sehgal (President) and Ms. Pinki, Member (Judicial)
Ashutosh Bhatia —Complainant
versus
M/s R.P.S. Infrastructure Ltd. —Opp. Party
Complaint Case No.864 of 2017
Decided on 31.10.2022

IMPORTANT POINTS
(1) Jurisdiction - Commission has the jurisdiction to entertain the cases relating to allotment agreement including delay in handing over possession of the said flat, as compensation for delay in handing possession is sought due to the deficient services of the Opposite Party and not for any other reason.
(2) Arbitration Clause - commission is authorized to adjudicate the case and the existence of an arbitration clause in the Flat Buyer Agreement does not affect the jurisdiction of this Commission.
(3) Commercial purpose - 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.

Headnote:

(A) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 —S.47(1)] – Services – Real Estate – Allotment of Flat – Delayed Possession - The present complaint has been filed by the Complainant before this commission alleging deficiency of service and unfair trade practice on the part of Opposite Party - Whether the Present Complaint is barred by Limitation under the Consumer Protection Act, 1986 - complaint before the Consumer Commission has to be filed within 2 years from the date when the cause of action arises. Returning to the facts of the case, it is observed that Opposite Party sent the allotment cancellation letter on 15.07.2016 and the cause of action arises after the allotment cancellation letter was sent to the Complainant and the complaint has been filed in the year 2017. Therefore, the Complaint is treated to have been filed within the limitation period.

Held: Analysis of the above statutory provision, it is clear that complaint before the Consumer Commission has to be filed within 2 years from the date when the cause of action arises. Returning to the facts of the case, it is observed that Opposite Party sent the allotment cancellation letter on 15.07.2016 and the cause of action arises after the allotment cancellation letter was sent to the Complainant and the complaint has been filed in the year 2017. Therefore, the Complaint is treated to have been filed within the limitation period. [Para 9]

(B) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 —S.47(1)] – Services – Real Estate – Allotment of Flat – Delayed Possession - Whether this Commission has the Jurisdiction to Decide the Present Complaint - Thus there is no iota of doubt that this Commission has the jurisdiction to entertain the cases relating to allotment agreement including delay in handing over possession of the said flat, as compensation for delay in handing possession is sought due to the deficient services of the Opposite Party and not for any other reason – On facts, Commission is fully empowered to adjudicate the present consumer complaint and is not paralyzed due to the want of territorial jurisdiction.

Held: Relying on the above settled law, there is no iota of doubt that this Commission has the jurisdiction to entertain the cases relating to allotment agreement including delay in handing over possession of the said flat, as compensation for delay in handing possession is sought due to the deficient services of the Opposite Party and not for any other reason. Moreover, the Opposite Party has a registered office at 1117-1120, DLF Towers, Jasola District Center, New Delhi-110025, till which, the jurisdiction of this commission extends. Therefore, this Commission is fully empowered to adjudicate the present consumer complaint and is not paralyzed due to the want of territorial jurisdiction. [Para 13]

(C) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 —S.47(1)] – Services – Real Estate – Allotment of Flat – Delayed Possession – Special Remedies – If a Bar - Whether the Existence of Arbitration Clause in the Allotment Letter barred the Jurisdiction of this Commission - In the present case also, the Complainant has opted for the special remedies provided under the Consumer protection Act, 1986 therefore, this commission can refuse to relegate the present case to the arbitration. Hence, this commission is authorized to adjudicate the case and the existence of an arbitration clause in the Flat Buyer Agreement does not affect the jurisdiction of this Commission.

Held: The Hon’ble Apex Court has put to rest the controversy relating to the existence of arbitration clauses in the allotment letter/apartment buyer agreement etc. as is evident from the relevant paragraph of Emaar MGF Land Limited (supra). In the present case also, the Complainant has opted for the special remedies provided under the Consumer protection Act, 1986 therefore, this commission can refuse to relegate the present case to the arbitration. Hence, this commission is authorized to adjudicate the case and the existence of an arbitration clause in the Flat Buyer Agreement does not affect the jurisdiction of this Commission. [Para 15]

(D) Consumer Protection Act, 1986 – S.17 [Consumer Protection Act, 2019 —S.47(1)] – Services – Real Estate – Allotment of Flat – Delayed Possession - Whether Complainant Fall in the Category of “Consumer” under the Consumer Protection Act, 1986 - It flows that commercial purpose does not include if it is for the purpose of earning his livelihood by means of self-employment – Thus, 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 - In the present case, the Opposite Party has merely made a statement that the Complainant 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 has booked the said Space for Commercial purpose and for gaining profit. Mere allegation, that the purchase of the space is for commercial purpose, cannot be the ground to reject the present consumer complaint.

Held: From, the above explanation to the statutory provision, it flows that commercial purpose does not include if it is for the purpose of earning his livelihood by means of self-employment.

It is imperative to refer to the dicta of the Hon’ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019.

From the aforesaid dicta of the Hon’ble National Commission, it flows that 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.

In the present case, the Opposite Party has merely made a statement that the Complainant 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 has booked the said Space for Commercial purpose and for gaining profit. Mere allegation, that the purchase of the space 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. [Para 17 to 20]

(E) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 —S.47(1)] – Services – Real Estate – Allotment of Flat – Delayed Possession - Whether the Opposite Party is Deficient in Providing its Services to the Complainant - On perusal of record, as per Clause 13 of the Flat Buyer Agreement dated 16.05.2007 entered into by both the contesting parties, it reflects that the Opposite Party was bound to give the possession of flat within 36 months from the date of execution of the said Agreement. However, the possession for the said flat was offered vide letter dated 03.12.2013 - Opposite Party is deficient in providing its services to the Complainant as the Opposite Party has given false assurance to the Complainant with respect to the time for delivery of possession of the flat in question. Be that as it may, the fact remains that admittedly the Complainant has paid an amount of Rs.19,32,810/- - On facts, Commission directed, the Opposite Party to refund the entire amount paid by the Complainant i.e. Rs.19,32,810/- along with interest. [Paras 25 to 29]

Result: Compliant allowed.