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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ram Surat Ram Maurya, Presiding Member and Dr. Inder Jit Singh, Member
Haresh Kishindas Dua – Complainant
versus
Ruparel Estates (I)
Private Limited and Ors. – Opp. Parties
Consumer Case No.1842 of 2016
Decided on 9.1.2023
Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession - “Consumer” – No evidence – Complainant was in business of buying and selling - For excluding a home buyer from the definition of ‘consumer’ as defined under Consumer Protection Act, 1986, it is required to be proved that service was availed for ‘commercial purpose’. The opposite parties argued that the complainants had stated in the complaint that for securing the future of their family they had booked the present flat. The complainants gave an online advertisement for sale of the flat on 11.08.2015. From which, it is proved that the complainants had not booked the flat for their residence but for earning profit. In Rejoinder, the complainants have stated that complainant-1 was a charted accountant and employed in corporate sector and complainant-2 was house wife – Therefore, there is no evidence that the complainants were engaged in buying and selling the property. At subsequent stage if the complainants offered the opposite party to buy back the flat or gave an advertisement for selling their flat as they found for themselves it difficult for paying the instalment no inference can be drawn that the complainants had obtained the flat for commercial purpose – On facts, the complaint is partly allowed with cost of Rs. one lac. The opposite parties are directed to refund entire amount of Rs.12878963/-, with interest @9% per annum. [Paras 5 to 7].
Result: Complaint allowed.
ORDER
Heard Mr. Abhijat, Advocate, for the complainants, and Mr. Mohd. Shahan Ulla, Advocate, for the opposite parties.
2. Haresh Kishinchand Dua and Mrs. Rashi Dua have filed above complaint, for directing the opposite parties to (i) refund entire amount of Rs.12878963/-, deposited by them with interest @ 24% per annum from the date of respective deposit till the date of actual payment, or in alternative, allot the flat booked by them on agreed price of Rs.23750000/, (ii) pay Rs.2000000/-, as compensation for mental agony and harassment, (iii) pay Rs.500000/-, as litigation cost; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that Ruparel Estates (I) Private Limited (opposite party-1) was a company, registered under the Companies Act, 1956 and opposite parties-2 to 6 were its Directors, Managing Director, Chairman and Employee. They were engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite parties launched a group housing project, in the name of “Ruparel Iris” at Cadastral Survey No.564 of Mahim Division and Final Plot No.273 of Town Planning Scheme Mahim No. III at S.B. Marg, Tulsi Pipe Road, Mahim, Mumbai-400016, in the year 2013 and made wide publicity of its facilities and amenities. The complainants booked a 2BHK Flat on 09.09.2013 and deposited booking amount of Rs.2500000/-. The opposite parties allotted Unit no.-2702, on 10.09.2013, for total sale price of Rs.23750000/-. As per demands dated 06.03.2014, 21.10.2014, 25.11.2014, 10.03.2015, 06.08.2015 and 07.03.2016, the complainants deposited total Rs.12878963/-. Payment plan was “construction link payment plan”. On 06.11.2015, the complainants requested the opposite parties for executing an agreement in their favour, so that they could secure loan from bank for paying remaining instalments. The opposite parties supplied a draft agreement on 26.11.2015, which did not contain any particular of the flat. The complainants pointed out the discrepancies in the agreement through email. Opposite party-6, vide email dated 30.11.2015, replied that flat number and floor number etc. had to be confirmed/checked by sir (managing director). On 19.12.2015, opposite party-6 informed on telephone that Flat No.2904 has been allotted to them. Opposite party-6 sent another draft agreement on 05.02.2016, in which, total price was mentioned as Rs.23990000/-. Through email dated 08.02.2016, the complainants inquired from opposite party-6, in respect of escalation of price. On 26.02.2016, opposite party-6 told on telephone that the issue would be resolved soon. The opposite parties raised a demand of Rs.4588426/- (the instalment payable on completion of 20th slab) on 08.03.2016 payable till 31.03.2016. The complainants found that on the site only 18th slab was completed as such they requested to resolve the issue of escalation in price, execution of agreement and postponing this demand, on 09.03.2016. However, Managing Director informed that it was not possible to reduce the price. On 22.03.2016, the complainants informed that they were ready to pay escalated price and requested for execution of the agreement. Opposite party-6, vide email dated 22.03.2006, informed that the allotment of the complainants had been cancelled. The complainants wrote email dated 25.03.2016 that they had never requested for cancellation of the agreement. Thereafter, the complainants gave various emails to the opposite parties from 25.03.2016 till 29.09.2016 but the opposite parties did not respond. Then the complaint was filed on 08.11.2016, alleging unfair trade practice.
4. The opposite parties filed its written reply on 15.02.2017 and contested the matter. The opposite parties did not dispute, booking of the flat, allotment of the flat, deposits made by the complainants and change allotment and price. The opposite parties stated that due to chan
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