1. The present Consumer Complaint has been filed before this Commission under Section 17 of the Consumer Protection Act, 1986, by Mr. Manoj Kumar Nirola (hereinafter referred to as “Complainant”) against Parsvnath Developers Ltd. (hereinafter referred to as “Opposite Party) seeking the following reliefs:-
A.“To admit the present consumer complaint and issue notice to the Opposite Party.
B.The opposite party be directed to refund to the complainant a sum of Rs. 43,37,025/- including the deposited amount of Rs. 11,50,000/- and Rs. 31,87,025/- (approximately) towards interest calculated @ 24 % per annum from 18.02.2005 till 31.03.2017.
C. The Opposite party be also directed to pay future interest and pendent elite interest @ 24 % per annum on the aforementioned amount from the date of filing of the present complaint till its realization.
D. To hold the opposite party liable for deficiency of service. E. To hold the opposite party liable for unfair trade practice.
F.The opposite party also be directed to pay a sum of Rs. 5,00,000/- to the complainant towards harassment, mental agony, deficiency in service, unfair trade practice and the loss of finances suf ered by the complainant.
G. That the opposite party be also directed to pay a sum of Rs. 1,00,000/- to the complainant for meeting the legal expenses in pursuing this complaint before this Hon’ble Commission.
H. Any further relief or order, which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present complaint, may also be passed in favor of the complainant in the interest of justice.”
2. Brief facts necessary for the adjudication of the present complaint are that on 18.02.2005, the Complainant applied for a residential plot admeasuring 400 sq.yards, in a Present and Future Project to be developed by the Opposite Party, located at Sonepat, Haryana. In pursuance of the same, the Complainant deposited a sum of Rs. 5,75,000/- vide cheque dated 18.02.2005, bearing No. 419008 drawn on The Nainital Bank, which was duly acknowledged by the Opposite Party.
3. After realisation of the advance money paid by the Complainant, the Opposite Party served a letter dated 04.01.2006 which manifested that the Complainant shall deposit another amount of Rs. 5,75,000/- to enable the Opposite Party to enlist the Complainant’s name in priority for allotment. On 19.01.2006, the Complainant further deposited an amount of Rs. 5,75,000/- vide cheque bearing no. 046006 to the Opposite Party.
4. The Complainant, repeatedly tried to inquire regarding the allotment of the aforesaid residential plot by means of various telephone calls, e-mails and personal visits. However, the Opposite Party failed to revert to the difficulties faced by the complainant due to non- allotment of the residential plot. The Complainant then got served a letter dated 16.05.2016 to the Opposite Party, seeking refund of the amount along with interest calculated at the rate of 24% per annum. The Opposite Party again failed to revert to the aforesaid letter.
5. Subsequently, on 01.06.2016, the Complainant made a complaint to the Police Station, Barakhamba Road, wherein the Complainant alleged that the Opposite Party has been guilty of cheating, criminal misappropriation and criminal intimidation and requested for an investigation into the matter.
6. Thereafter, left with no other option, alleging deficiency of services on part of the Opposite Party, the Complainant approached the District Forum. The District Forum, vide order dated 24.10.2016, returned the complaint on the want of pecuniary jurisdiction. Thus, the Complainant approached this Commission.
7. The Opposite Parties contested the present case and raised some preliminary objections as to the maintainability of the present complaint and contended (a) that since the Complainant is seeking recovery of money, the present complaint is nothing but a suit for recovery, which is beyond the jurisdiction of this commission and can only be decided by a Civil Court; (b) that the said plot has been purchased solely for the purpose of investment, merely for “Commercial Purpose”, hence, the Complainant is not a Consumer within the provisions of the Consumer Protection Act, 1986 ; (c) that the Complainant has failed to establish any kind of deficiency in providing services by the Opposite Parties. Pressing the aforesaid preliminary objections, the Opposite Parties have prayed that the present Consumer Complaint should be dismissed.
8. The Complainant filed his Rejoinder rebutting the written statement filed by the Opposite Party. The parties filed their Evidence by way of Affidavit in order to prove their averments on record. After the completion of the pleadings, the case was listed for final arguments.
9. We have perused through the material on record. The parties have filed their written arguments. The fact that the Complainant had booked a residential plot with the Opposite Party is not in dispute from the evidence on record.
10. Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues as to the maintainability of the Consumer Complaint.
WHETHER THE CIVIL COURT HAS JURISDICTION - JURISDICTION OF CONSUMER COMMMISSION BARRED
11. The Opposite Party has contended that the jurisdiction of this Commission would be barred in view of the fact that the present complaint is in fact a suit for recovery on which court fees is payable and would lie in a Civil Court and the Complainant in order to save the payment of court fees has filed the complaint under the Consumer Protection Act, 1986.
12. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are effected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
13. The Consumer Protection Act, 1986 defines a Consumer as follows:
“(2)
(d) "consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”
14. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
“(2) (g)"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”
15. Returning to the facts of the present complaint, the perusal of the record shows that the Complainant booked a residential plot in the Opposite Party’s future project, to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honour the terms of the booking form, aggrieved by which, the Complainant has sought refund of the amount deposited along with compensation for delay in allotting a residential plot. Hence, the 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 allot a residential plot within the prescribed period and it is only due to this reason, that the refund and compensation for delay is sought from the Opposite Party, which this Commission is authorised to adjudicate.
16. Our view is further fortified by the dicta of Hon’ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369 , wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of theand any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers.
17. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties.
18. Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the compensation for delay from the Opposite Party.
COMPLAINANT- A CONSUMER OR NOT
19. The Opposite Party has further contended that the Complainant is not a Consumer as defined under the Consumer Protection Act, 1986 since the plot was purchased for investment, which constitutes commercial purpose.
20. It is imperative to refer to the dicta of the Hon’ble National Commission in CC-1122/2018 titled as Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon’ble National Commission has held as under:
“19. The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the.”
21. From the aforesaid dicta of the Hon’ble National Commission, it flows that it is for the Opposite Party to prove that the flat/plot purchased was for commercial purpose, by way of some documentary proof and a bald statement is not sufficient to raise adverse inference against the Complainant.
22. In the present case also, the Opposite Party has merely made a statement that the Complainant purchased the plot for a commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Party in answered in the negative.
DEFICIENCY OF SERVICE
23. Having discussed the maintainability of the present complaint, the next issue to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainant. The expression Deficiency of Service has been dealt with by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at (2020) 16 SCC 512 , wherein it has been held as follows:
“28. 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. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suf er agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. 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.”
24. Returning to the facts of the present case, we deem it appropriate to refer to Clause ‘C’ and ‘D’ of the booking form, which are reproduced as follows:
“C. That in the event of the residential plot is allotted after nine months, simple interest @ 10% per annum shall be paid to me/us for the period delayed beyond nine months on the amount paid by me/us as advance till such time I/We am/are allotted a residential plot or adjusted against the price of the plot to be allotted to me/us.
D. In case the company fails to allot a plot within a period of one year from the date of making the payment, then I/We would have the option to withdraw the money by giving one month notice."
25. Upon a perusal of the aforesaid clauses, it is evident that in event of failure on part of the Opposite Party to allot a residential plot within 9 months of the booking form, the Opposite Party was liable to pay simple interest at the rate of 10% per annum on the amount deposited by the Complainant. Moreover, in case the Opposite Party could not allot a residential plot to the Complainant within a period of one year, then the Complainant had the option to seek refund of the amount deposited.
26. The booking was made on 18.02.2005, and even till the time of filing the present complaint, the Opposite Party has failed to allot a residential plot to the Complainant. This only implies that the Complainant, despite fulfilling his liability towards the booking of the residential plot, failed to get the allotment of the same. It is settled law that the Complainant cannot be expected to wait for an indefinite time period to get the benefits of their hard-earned money which they have spent in order to purchase the property in question.(Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442 ).
27. Relying on the above settled law, we are of the view that the Opposite Party had given false assurance to the Complainant with respect to the time for allotment of the residential plot and kept the hard-earned money of the Complainant. Thus, the Opposite Party is deficient in providing its services to the Complainant.
CONCLUSION
28. Keeping in view the facts of the present case, we allow the following reliefs as prayed for by the Complainant:
I. We direct the Opposite Party to refund the amount of Rs. 11, 50, 000 /- along with interest as per the following arrangement:
A. An interest @ 10% p.a. calculated from the date of each instalment/payment received by the Opposite Party till 09.08.2021 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 30.09.2021;
C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 30.09.2021, the entire amount is to be refunded with an interest @ 12% p.a. calculated from the date of each instalment/payment received by the Opposite Party till the actual realization of the amount.
II. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is also directed to pay to the Complainant
A. A sum of Rs. 1,00,000/- as cost for mental agony and harassment;
B. And the litigation cost to the extent of Rs. 50,000/-.
29. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
30. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
31. File be consigned to record room along with a copy of this Judgment.
