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DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Rajan Sharma, Member (Judicial) and
Bimla Kumari, Member (Female)
Rakesh Khurana and Anr. – Complainants
versus
M/s Exact Developers &
Promoters Pvt. Ltd. – Opp. Party
Complaint Case No.630 of 2016
Decided on 5.2.2024
Consumer Protection Act, 1986 – Section 17 – Consumer Protection Act, 2019 – Section 47 – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Allotment Letter – Validity of – Non-signing by Complainant – No Right to deduct Earnest money – On facts, it is clear that between the period 2008 and 2016, the Opposite Party had been continuously sending payment reminders to the Complainants and the last reminder sent by the Opposite Party to the Complainants was on 21.03.2016. On the contrary, the Complainants had continuously been showing their unwillingness to purchase the commercial unit and before filing the complaint the Complainants had also sent legal notices dated 18.03.2009 & 11.04.2016 to the Opposite Party. Both the parties remained adamant on their respective stands. Perusal of the record further shows that the Complainants’ money are still lying with the Opposite Party, thus, we hold that the cause of action continues to subsist in favour of the Complainants and the present complaint has been filed within the period of limitation and is not barred by limitation – In the present case, the Complainants applied for the allotment of commercial unit in the project of the Opposite Party. Thereafter, the Opposite Party vide communication dated 09.04.2007 (Annexure-C4) intimated about the allotment of commercial unit no. 308 admeasuring of 1119 sq. ft. in the abovesaid project to the Complainants on provisional basis. The said communication records that “In case we fail to receive duly signed copy of this communication within 30 days from the date of issuance of this communication, the offer of allotment will be deemed to be cancelled and the money deposited by you will be refunded by the company within a reasonable time, without any interest after deduction of earnest money.” – Thus on facts, the aforesaid provisional allotment letter was an offer given by the Opposite Party, whichwas not signed/accepted by the Complainants. Despite several requests made by the Complainants, the Opposite Party did not refund the Complainants’ money till date. As the allotment letter was not signed/accepted by the Complainants, the Opposite Party does not have any right to deduct the earnest money and cannot use or sit over the Complainants’ hard-earned money – Thus there deficiency in service on the part of the Opposite Party stands proved by not refunding the money of the Complainants – Complaint allowed, refund ordered. [Paras 10 to 36].
Result: Refund ordered.
JUDGMENT
Rajan Sharma, Member (Judicial)—Brief facts necessary for the adjudication of the present complaint are that the Opposite Party came with an advertisement of dwelling project “The Ace.” Being lured by the advertisement, the Complainant had made total payment of Rs.18,75,000/- to the Opposite Party between the period February-March 2007, against which the Opposite Party had also issued receipts dated 20.02.2007 & 19.03.2007 to the Complainants. The Opposite Party vide communication dated 09.04.2007 (Annexure-C4) sent a provisional allotment letter of commercial unit no. 308 admeasuring of 1119 sq. ft. in the abovesaid project to the Complainants. However, in the communication dated 09.04.2007, the Opposite Party made it clear to the Complainants that in case the Complainants fail to send signed copy of the allotment letter within 30 days from the date of issuance of this communication, the offer of allotment would be deemed to be cancelled and the money deposited by the Complainants would be refunded by the Opposite Party within a reasonable time and without any interest after deduction of earnest money.
2. It has been stated by the Complainants that they did not sign the allotment letter but had thereafter, made numerous requests to the Opposite Party seeking to refund of their money and had issued legal notices dated 18.03.2009 & 11.04.2016 to the Opposite Party. In reply to the legal notice, the Opposite Party reiterated that they had given several opportunities to the Complainants to pay the outstanding installments as per schedule.
3. Thereafter, the Complainants filed the present complaint on 04.06.2016 before this Commission seeking refund of their entire money along with interest @ 18% p.a.
4. Notice of the complaint was issued to the Opposite Party on 09.09.2016.
5. Upon service, the Opposite Party filed written statement wherein it has been contended that this Commission does not have territorial jurisdiction to entertain the present complaint. The Opposite Party further contended that the Complainants had booked the commercial space, hence the complaint is liable to be dismissed on the ground that Complainants are not Consumers as prescribed under the Consumer Protection Act. The Opposite Party further contended that the present complaint is barred by limitation. The Opposite Party also stated that they did not commit any deficiency in service because they had already given various opportunities to the Complainants to abide by the payment plan by sending various payment reminders dated 16.05.2008, 10.6.2008, 11.4.2009, 30.4.2009, 21.5.2009, 15.2.2010, 16.8.2010, 22.10.2010, 29.12.2010, 7.2.2013, 06.5.2013 & 21.3.2016, to the Complainants.
6. Thereafter, the Complainants had filed the Rejoinder on 07.07.2017, rebutting the averments made in the written statement filed by the Opposite Party.
7. The Complainants had filed his evidence by way of affidavit i.e. of Mr. Rakesh Khurana S/o Mr. Ish Kumar Khurana, Complainant No. 1 herein.
8. The Opposite Party had also filed evidence by way of affidavit i.e. supported by an affidavit of Mr. Sushil Kumar S/o Mr. Jeevan Das, CEO of Opposite Party/company.
9. Written arguments were also filed on behalf of both the parties.
10. We have perused the material available on record and heard the counsel for both the parties.
11. The first question for adjudication before us is “whether this Commission has the territorial jurisdiction to entertain the present complaint.”
12. To meet out this contention of the Opposite Party, we would like to refer Section 17 (2) of the Consumer Protection Act, 1986, which is reproduced herein for ready reference:—
“A complaint shall be instituted in a State Commission within the limits of whose jurisdiction- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a brach office or personally works for g
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