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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Subhash Chandra, Member
Surendra Kapur —Complainant
versus
M/s Puja Construction
Ltd. and Ors. —Opp. Parties
Consumer Case No.307 of 2013
Decided on 3.11.2022
Consumer Protection Act, 1986—S.21(1)(a)(i)[Consumer Protection Act, 2019—S.58(1)(a)(i)]—Services – Real Estate – “Consumer” - Commercial Transaction – Not within a preview of Consumer Fora- Preliminary objection raised by the Opposite Parties is that the Complainant was not Consumer as he was acting the capacity of money lender and claimed interest on the money invested by him - It is his own admission that the Complainant is a businessman and spent several long years in the business - Admittedly, the Complainant invested the amount in the project as a partner. Subsequently the Complainant withdrew as a partner and requested Opposite Party No.2 for refund of his investment amount with interest. As Opposite Parties failed to refund the amount, the Complainant entered into an agreement dated 21.11.2006 wherein he was promised that he would be given a duplex flat in the project against his money invested in the project. As the project got delayed, the Complainant sought refund of the amount invested by him - From the aforesaid sequence Commission finds that the Complainant made investment of his money as a partner in the project and now he is seeking refund of that investment amount. The entire transaction between the Complainant and the Opposite Parties is commercial in nature. Refund of the amount sought by the Complainant is only extension of initial investment made by him, which is purely commercial in nature. By the Complainant’s own admission, vide settlement dated 21.11.2016 the said amount was agreed to be ‘accounted against’ the contractual promise for delivery to the Complainant of a duplex flat. The amount paid alongwith accrued interest was the consideration for the flat and the debt was discharged by the Opposite Parties through the promise to deliver the duplex flat to the Complainant. Entering into agreement for a duplex flat is only a sequence for realizing the invested amount with interest. Claim made by the Complainant is only for furtherance of gain for the original investment made. The Complainant being an investor is not a “Consumer” under the provisions of Consumer Protection Act, 1986. The Consumer Complaint is accordingly dismissed as not maintainable with liberty to the Complainant to approach the appropriate Forum. [Paras 11, 12].
Result: Complaint dismissed.
ORDER
The present Complaint is filed under Section 21(a)(1) of the Consumer Protection Act, 1986.
2. Opposite Party No.1 is a company registered under the Companies Act, 1956. Opposite Party No.2 is the Director of Opposite Party No.1. Opposite Parties Nos.3 & 4 are wife and daughter of Opposite Party No.2. The case of the Complainant is that the Complainant and the Opposite Party No.1 entered into a Settlement Agreement dated 21.11.2006, whereby the Complainant was promised a residential duplex flat in a real estate project labelled as Rajmahal Royal Residency Project, for his personal use. Despite several communications and assurances, the Opposite Parties failed to hand over possession of the said residential duplex flat to the Complainant.
3. The Complainant on being approached with respect to a proposed investment opportunity by Opposite Party No.2 and his father, decided to invest an amount of Rs.17,00,000/- on the basis of a Memorandum of Understanding for Joint Venture Project. The Complainant sent a further draft of Rs.25,00,000/-, along with letter dated 05.11.1996, wherein it was stated that a further payment of Rs.20,00,000/- would be made upon execution of the Agreement as envisaged in the Memorandum of Understanding. Opposite Party No.2 however, unilaterally changed the amount from Rs.20,00,000/- to Rs.25,00,000/- and terms of the Agreement. Thereafter, the Complainant, vide letter dated 31.08.1998, expressed his disinterest in the Project and requested Opposite Party No.2 to refund his money with interest. After repeated attempts to resolve the matter, the Complainant requested Opposite Party No.2 to refund his deposit of Rs.42,00,000/- with compound interest @ 24% p.a., vide letter dated 22.07.1999.
4. With a view to discharge and satisfy the amount owed to the Complainant, Opposite Party No.1 and 2 entered into a Settlement Agreement dated 21.11.2006 wherein the Complainant was promised a residential duplex flat for his personal use in the Rajmahal Royal Residency Project located at Goner Road, Jaipur. The terms of the settlement was confirmed in a letter dated 21.11.2006 sent by Opposite Party No.1 to the Complainant. Subsequently, the Complainant and his wife submitted two separate deposit Registration forms along with a cheque of Rs.10,00,000/- pertaining to two separate flats promised by Opposite Party No.1. Opposite Party No.1 sent letter dated 21.11.2006 to the Complainant acknowledging the entire payment against booking of the said flats and stating that there were no past dues left from either side and full and final receipt of payment for the said flats was confirmed. Opposite Party No.2 assured the Complainant over telephone that significant progress had taken place in the construction of the project and that he would be sending photographs as proof. The Complainant, however, did not receive any proof of construction. The Complainant, vide letter dated 12.12.2012, informed Opposite Party No. 2 regarding his visit to Jaipur and noticed that no work was being done on the project even after 5 years from the date of Settlement. The Complainant sought refund of the full value of the said flats with interest, amounting to Rs.3,20,00,000/-. The Complainant further demanded punitive damages of Rs,1,80,00,000/- from the Opposite Parties for compelling him to occupy costly alternative accommodation.
4. In spite of the written demand, vide the letter dated 12.12.2012, Opposite Party No.2 failed to return the money owed to the Complainant. Thereafter, the Complainant sent Legal Notice dated 28.03.2013 claiming an amount of Rs.5,00,30,000/-. In response to the said Legal Notice, Opposite Party No.1, sent reply dated 13.04.2013 to get the sale deed executed. Further, an Arbitrator was appointed by Opposite Party No.1 to resolve the dispute between the Parties. In response to the reply dated 13.04.2013, the Complainant sent another communication dated 15.07.2013 denying the contents of reply stating that the Compla
(1) Commercial Nature—The entire transaction between the Complainant and the Opposite Parties is commercial in nature. Refund of the amount sought by the Complainant is only extension of initial inve....
Specified time - Therefore when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interes....
Consumer rights include timely possession and refund in cases of inordinate delays by builders, ensuring protections under consumer law are maintained.
Refund – it is well within the Complainant’s right to seek for refund of the principal amount with interest and compensation as construction is still not complete.
(1) One-sided clauses – The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfai....
Valid Redressal – flat purchasers cannot be made to wait for inordinate period of time hoping to seek possession and that refund of amounts deposited is a valid redressal.
Deficiency in service occurs when a builder fails to deliver possession of property within the stipulated time, violating consumer rights.
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