DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Rajan Sharma, Member (Judicial) and
Bimla Kumari, Member (Female)
Harvinder Singh and Anr. – Complainants
versus
Parsvnath Developers Limited – Opp. Party
C No.341 of 2017
Decided on 2.12.2022

IMPORTANT POINTS
(1) Commercial Purpose - Mere allegations that the complainants purchased the flat for commercial purpose cannot be a ground to reject the complaint.
(2) Civil Court - Merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing consumer to approach the civil court.
(3) Summary trial - It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided.
(4) Failure to give possession - It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts.
(5) Cause of action - On facts, there is ‘deficiency of service’ on the part of the opposite party and it cannot be said that complainants have filed the complaint without any cause of action.

Headnote:

A. Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession - Consumers – mere allegation not sufficient - no record – to show the complainants had purchased the flat to earn profits - Whether the complainants are not consumers - The present complaint against the opposite party alleging deficiency of service on the part of opposite party as per provisions of Consumer Protection Act, 1986 - opposite party has not placed on record any material to show that the complainants had purchased the flat to earn profits by selling the flat or that the complainants are engaged in the business of purchasing or selling houses or flats on regular basis. Mere allegations that the complainants purchased the flat for commercial purpose cannot be a ground to reject the complaint. [Paras 15 to 17].

B. Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Complicated questions of law and fact – Adjudication by Sate Commission - Whether the case involves complicated questions of facts and law, which cannot be decided by National Commission - merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing consumer to approach the civil court. For the trial to be just and reasonable, long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards – Therefore, in the present case, Commission was of the considered view that no complicated questions of facts and law are involved in the present case, as the complaint filed by the complainants comes under the ‘housing category” only. [Paras 18,19].

C. Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Objection as to – territorial jurisdiction – location of registered office - In the present case, the opposite party has its registered office in Delhi, wherein the complainants have booked the flat. Further, the Agreement Serviced Apartment, Annexure-A page 34 of complaint was also executed between the complainants and the opposite party in Delhi. In these circumstances, Commission was of the considered view that State Commission has jurisdiction to entertain the present complaint. [Paras 21, 22].

D. Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Failure to give possession – Continuous wrong – Recurrent cause of action - Compliant if can be termed as time barred - It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts – thus, it is clear that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action in favour of the buyer and therefore, till the time possession is not delivered to the Complainant, he is within right to file the present complaint before this commission - In the present case, the possession of flat in question has not been delivered by the opposite party to the complainants. In these circumstances, the complaint is not barred by limitation as per Section 24A of the Act. [Paras 24 to 28].

E. Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Builder Buyer Agreement - Delayed Possession – ‘deficiency of service’ - Refund of entire sale consideration - Whether there is no ‘deficiency of service’ on the part of opposite party and the complaint has been filed without any cause of action - In the present case the booking of the flat was done by the complainants on 01.02.2007. The Builder Buyers agreement Annexure-A was executed between the parties in the year 2007. As per clause 11(a) of the Agreement, the construction of the complex was to be completed within a period of 30 months from the date of commencement of the construction on receipt of sanction of building plans and all other approvals - It is note worthy that till date the opposite party is not able to place on record any material to show that the construction of the project is over and flat is ready to be handed over to the complainants – On facts, there is ‘deficiency of service’ on the part of the opposite party and it cannot be said that complainants have filed the complaint without any cause of action - In the present case, the opposite party is not able to hand over the possession of the flat to the complainant. Thus, Commission is of the considered view that the complainants are entitled for the refund of amount. Further the complainants have demanded interest @ 18% p.a. However, Commission is of the considered view that the said rate of interest is on the higher side. Accordingly, the opposite party is directed to refund the sum of Rs.27,91,553/- with interest as per following arrangements. [Paras 30, 31, 35].

Result: Complaint allowed.