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DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Sangita Dhingra Sehgal, (President), Pinki, Member (Judicial) and J.P. Agrawal, Member (General)
Sunita Badhwar – Complainant
versus
TDI Infrastructure Ltd. – Opp. Party
Complaint Case No.906 of 2018
Decided on 1.2.2023
(A) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services - Real Estate - Whether Complainants fall in the category of “consumer” under the consumer protection act, 1986 - In the present case, the Opposite Party has merely made a statement that the Complainants purchased the floor for commercial purpose and on perusal of the record before us; we fail to find any material which shows that the Complainants have booked the said floor for commercial purpose and for gaining profit. Mere allegation, that the purchase of the unit is for commercial purpose, cannot be the ground to reject the present consumer complaint - Therefore, it is for the Opposite Party to prove that the floor 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 Complainants. [Paras 10 to 13]
(B) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services - Real Estate – Limitation - possession and completion of construction are still pending - whether the present Complaint is barred by limitation as the present complaint has been filed after the lapse of 8 years from the date of booking the said floor - Complainants are within her right to file the present complaint as the possession and completion of construction are still pending and has not seen the light of the day; giving the Complainants a recurrent cause of action to file the present complaint. Therefore, the Complaint is treated to have been filed within the limitation period. [Paras 14 to 16]
(C) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services - Real Estate – Refund of amount paid – When Justified – Deficiency of Service - Whether the Opposite Party was actually deficient in providing its services to the Complainants or not - Opposite Party failed to file any documentary proof, cogent evidence or any photographs regarding the progress of the construction as per the payment plan. However, till date the construction of the said unit has not been completed by the Opposite Party - Opposite Party failed to handover the possession of the floor in question even after the passing of more than 10 years from the date of booking. Therefore, the Complainants are not at fault in asking the refund of the amount already paid by them - Opposite Party is deficient in providing its services to the Complainants as the Opposite Party had given false assurance to the Complainants with respect to the time for completing the construction as well as giving the possession of the said floor and kept the hard-earned money of the Complainants even after passing of 10 years - Complaint allowed. [Paras 17 to 29].
Result: Complaint allowed.
JUDGMENT
Sangita Dhingra Sehgal, (President)—The present Consumer Complaint was initially filed before the District Commission. However, the Complainants withdrew their complaint on the ground of pecuniary jurisdiction with a liberty to file it before appropriate Commission. Therefore, vide order dated 13.02.2018, the District Commission dismissed the complaint as withdrawn with a liberty to file it before appropriate Commission. Thereafter, the present complaint was re-filed before this Commission under Section 17 of the Consumer Protection Act, 1986, by the Complainants alleging deficiency in service and Unfair Trade Practice on the part of Opposite Parties and has prayed the following reliefs:—
(a) “An amount of Rs.7,24,635/- which Opposite Party has received from the complainants.
(b) Amount of Rs.4,00,000/- as compensation/ damages suffered by the complainants for non delivery of possession of floor within reasonable period and for mental torture, harassment and mental strains.
(c) Interest @ 15% P.A. on the due amount of Rs.7,24,635/-
(d) Litigation expenses of Rs.55,000.”
2. Brief facts for the adjudication of the present complaint are that the Complainants booked a floor in T-Phase Tower Block, M-102, SF Floor, Unit No. M-102/SF, in the Project of the Opposite Party namely “TDI City” situated at Kundli, Sonipat, for a total price of Rs.20,40,508/-. Thereafter an Allotment Letter for the said floor dated 18.08.2010 was sent to the Complainants by the Opposite party.
3. The Complainants had paid a total sum of Rs. 7,24,635/- as demanded by the Opposite Party till date. Thereafter, the Complainants requested the Opposite Party to give the date of delivery of the said floor but was of no avail. On visiting the site by the Complainants, they found that Opposite Party did not start the construction work in the said project till 2016.
4. The Complainants sent letter dated 09.08.2016 to the Opposite Party vide which they asked the Opposite Party to give the possession of the said floor but the Opposite Party failed to pay any heed towards the requests of the Complainants. Aggrieved by the aforesaid, Complainants served legal notice dated 08.09.2016 and requested Opposite Party to refund the amount of Rs. 7,24,635/- paid by the Complainants towards the purchase of the said floor along with interest but of no avail.
5. The District Commission’s record shows that Opposite Party contested the case and filed written statement on their behalf contending that the Complainants have no cause of action against the Opposite Party to file the present complaint. The counsel for the Opposite Party further submitted that the Complainants are not ‘consumer’ under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. Lastly, he contended that the present complaint is liable to be dismissed as the present complaint is barred by limitation period. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.
6. The Complainants have filed their Rejoinder rebutting the written statement filed by the Opposite Party. The Evidence by way of Affidavit of both the parties and written arguments of the Opposite Party are on record.
7. We have perused the material available on record and heard the counsel for the parties.
8. Before delving into the merits of the present case, we found that payment to the extent of Rs.7,24,635/- has been paid by the Complainants till date to the Opposite Party . The Complainants were allotted 2nd Floor of Plot No. M-102/SF by the Opposite Party which is evident from the Allotment letter dated 18.08.2010.
9. The first question for adjudication before us is whether Complainants fall in the category of “consumer” under the consumer protection act, 1986. The Opposite Party contended that the Complainants are not a “Consumer” as defined under the Consumer Protection Act, 1986 as they inv
SupremeToday
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