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DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Rajan Sharma, Member (Judicial) and Bimla Kumari, Member (Female)
V.K. Jain – Complainant
versus
M/s Parsvnath Buildwell Pvt. Ltd. – Opp. Party
Complaint Case No.1080 of 2018
Decided on 26.4.2023
Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession - Failure to handover possession – Amounts to deficiency of Service - Whether Complainant falls in the category of “consumer” under the Consumer Protection Act, 1986 - It is for the Opposite Party to prove that the said flat was purchased by the Complainant 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 said flat for commercial purpose and on perusal of the record fail to find any material which shows that the Complainant has booked the said flat for commercial purpose and for gaining profit. c - In the present case, the possession of the flat has not been handed over by the Opposite Party to the Complainant till date - Complainant is entitled to file the present complaint before this commission since the Complainant is aggrieved by the deficient services of the Opposite Party i.e., the failure of the Opposite Party to complete the construction/handover the possession of the said flat within the stipulated time - A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression ‘service’ in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction - These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation - Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the complainant with respect to the time for completing the construction/handing over possession of the said flat and kept the hard-earned money of the complainant for an inordinate time – Complaint allowed. [Paras 13 to 28].
Result: Complaint allowed.
JUDGMENT
Rajan Sharma, Member (Judicial)—Briefly the facts of the case are that initially the complaint was filed before the District Consumer Disputes Redressal Forum-IV, (North-East District), Nand Nagri, Delhi-110093 in 2013 but the complaint was returned due to pecuniary jurisdiction. Thereafter, the Complainant has filed this complaint on 27.08.2018 before this Commission alleging deficiency of service and unfair trade practice on the part of Opposite Party and has prayed the following reliefs:—
(a) “Direct the Opposite Party to refund the amount of 10,73,280/-(Rupees Ten Lacs Seventy Three Thousand Two Hundred Eighty only) pad by the complainant towards the purchase of Residential Flat along with interest @ 24% per annum from the date of payment till realization to the complainant.
(b) Direct the Opposite Party to pay compensation to the tune of Rs.1,00,000/- to the complainant for mental pain and agony being suffered by the complainant at the hands of the Opposite Party;
(c) Allow the litigation charges of Rs.25,000/- in favour of the complainant and against the Opposite Party;
(d) Pass any other or further order(s) which this Hon’ble Forum may deem fit and proper in the facts and circumstances of the complaint in favour of the complainant and against the Opposite Party, in the interest of justice.”
2. District Forum record has also been carefully and thoroughly perused.
3. Brief facts necessary for the adjudication of the present complaint are that the Complainant entered into a Flat Buyer Agreement dated 19.09.2007 with the Opposite Party for a residential flat bearing no. D1-403, 4th Floor measuring 1920 sq. ft. in the project namely ‘Parsvnath Exotica’. The total cost of the said flat was Rs.53,66,400/-. As per clause 10(a) of the said agreement dated 19.09.2007, the Opposite Party had to complete the construction of the said flat within 36 months. However, the Opposite Party had sent letter to the Complainant on 15.01.2011 stating that they were speeding up the construction work and development activities at the project and thereafter, various letters dated 02.03.2012, 03.04.2012, 11.08.2012, 04.09.2012, & 17.11.2012 were also issued by Opposite Party raising illegal demand.
4. Aggrieved by the aforesaid, the Complainant served a legal notice dated 29.11.2012 and requested the Opposite Party to refund the amount of Rs.10,73,280/- paid by the Complainant towards the purchase of the said flat along with interest but of no avail.
5. It is further case of the Complainant that as per clause 10(a) of the said agreement dated 19.09.2007, the Opposite Party had to complete the construction of the said flat within 36 months. However, without completing the construction of the said project, the Opposite Party had started making illegal demands. It is also pertinent to mention here that vide letter dated 11.04.2013, the Opposite Party had stated that they had forfeited an amount of Rs.8,04,960/- and were ready to refund Rs.2,68,320/- as per the clause no. 5(a) of the Flat Buyers Agreement.
6. The Opposite Party contested the present case and raised preliminary objections as to the maintainability of the complaint. Counsel for the Opposite Party submitted that the Complainant is not ‘consumer’ and the present complaint is filed without any cause of action. The present complaint involves complicated questions of facts and law, which cannot be decided in summary procedure, adopted by this Commission. He further contended that as per terms of clause no. 5(a) of the Flat Buyers Agreement, 15% of basis price was to be forfeited and the remaining was to be refunded to the complainant.
7. The Complainant had filed the Rejoinder rebutting the averments made in the written statement filed by the Opposite Party.
8. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
9. Written arguments have also been filed on behalf of both the parties.
10. We have perused the material avai
(1) Commercial Purpose - Mere allegation, that the purchase of the said flat is for commercial purpose, cannot be the ground to reject the present consumer complaint.(2) Housing Construction - The ex....
Commercial Purpose - Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint.
Commercial Purpose – Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint.
Failure by a developer to deliver possession of a residential unit within the stipulated contract period constitutes a deficiency of service under the Consumer Protection Act, 2019, entitling the agg....
Commercial Purpose - it is for the Opposite Parties 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 ....
(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 t....
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