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Debashish Sen v/s TDI Infra Structure Ltd.

    Complaint Case No. 1137 of 2018
    Decided On, 08 November 2021
    At, Delhi State Consumer Disputes Redressal Commission New Delhi
    By, MEMBER
    For the Complainant: Ritika Mitra, Advocate. For the Opposite Party: Ankit Khera, Advocate.

Judgment Text
Dr. Justice Sangita Dhingra Sehgal, President

The present complaint, on being returned by the District Forum vide order dated 30.7.2018 on the ground of pecuniary jurisdiction, has been filed by the complainant before this commission alleging deficiency of service and unfair trade practice by the opposite party and has prayed the following:

(a) to refund the entire amount of Rs. 5,95,703 (Rupees Five Lakhs Ninety Five Thousand Seven Hundred and Three Only) along with 24% p.a. interest till date of payment.

(b) to award a sum of Rs. 5,00,000 (Rupees Five Lakhs Only) as compensation to the Complainant for mental stress & agony suffered.

(c) to pay a sum of Rs. 25,000 (Rupees Twenty Five Thousand Only) towards litigation fees and expenses.

(d) Any other order this Hon’ble Forum may deem fit and proper in this matter in favour of the Complainant and against the Respondent Company/ Opposite Party.

2. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked a residential flat bearing No. B-2/1103 with the opposite party in the project named “Espania Royale Heights” at Kundli, Sonepat on 4.7.2012. The complainant over the time had paid a sum of Rs. 5,95,703 to the opposite party as and when demanded by it. The complainant vide email dated 18.10.2012 requested the opposite party to cancel their booking. Later, on the request of the opposite party, the complainant paid the second installment. Thereafter, the complainant telephonically requested the opposite party to cancel the booking but the opposite party did noy pay heed to his request and kept sending reminders for payment. On 31.12.2013, the complainant again sent mail to the opposite party requesting cancellation and refund of the amount paid by him. However, the opposite party failed to refund the amount till date. The complainant sent a legal notice dated 28.5.2014 to the opposite party seeking refund of the amount with interest but was of no avail.

3. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The Counsel of the Opposite Party submitted that the complainant is not a consumer under the Consumer Protection Act, 1986 as he invested the money to earn profit, which amounts to commercial purpose. He further submitted that the complainant himself defaulted in making timely payments and therefore, the opposite party was right in cancelling the booking of the complainant. Pressing the aforesaid objections, the Counsel appearing on behalf of the Opposite Party prayed that the complaint should be dismissed.

4. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.

5. We have perused the material available on record and heard the Counsel for the parties.

6. The fact that the Complainant had booked a flat with the Opposite Party is not in dispute from the evidence available on record. Payment to the extent of Rs. 5,95,703 made by the Complainant to the Opposite Party is evident from the receipts issued by the opposite party, attached with the complaint

Whether Complainant fall in the category of ‘Consumer’ under the Consumer Protection Act, 1986?

7. The Opposite Party contended that the complainant is not Consumer as defined under the Consumer Protection Act, 1986 as he invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai v. Emaar MGF Land Limited, reported in I (2017) CPJ 17 (NC), wherein it is held as under:

“6. …….A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

8. It is imperative to refer to the dicta of the Hon’ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. v. Ramprastha Promoters and Developers Pvt. Ltd. and Ors., decided on 1.11.2019, wherein, the Hon’ble National Commission has held as under:

“19. The contention of the learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in ‘purchase and sale of flats’ as was held by this Commission in Kavit Ahuja v. Shipra Estates, I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are ‘Consumers’ as defined under Section 2(1)(d) of the Act.”

9. From the aforesaid dicta of the Hon’ble National Commission, it flows that it is for the Opposite Party 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 adverse inference against the Complainant.

10. In the present case, the Opposite Party has merely made a statement that the Complainant purchased the flat for 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 flats. 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 is answered in the negative.

Deficiency of Service

11. On perusal of the complaint before us, it is noted that the complainant vide email dated 18.10.2012 and 31.12.2013 requested for cancellation of his booking due to personal reasons.We further deem it appropriate to refer to Clause 7 of the Registration Form dated 4.7.2012, which provides as under:

“……….. on the cancellation, the applicant shall be shall be entitled to the refund of all such amount paid till then as part Sale amount though subject to deduction of 15% of the Sale consideration and the interest payable as aforesaid as defined in the buyer agreement.”

12. On perusal of aforesaid clause, it is clear that the 15% of the Sale consideration is to be deducted in case of cancellation of the booking. The total Sale consideration of the said flat is Rs. 19,24,250. It is clear that the 15% of the sale price of the said flat amounts to Rs. 2,88,637 (approx.), which the opposite party could forfeit as per clause 7 of the registration form dated 4.7.2012. It is noted that the total amount paid to the opposite party by the complainant till date is Rs. 5,95,703. The opposite party failed to refund the balance amount to the complainant even after receiving the request for cancellation of booking by complainant vide email dated 18.10.2012.

13. Keeping in view the facts and circumstances of the present case, we direct the opposite party to refund the balance amount after deducting 15% of the sale price of the flat i.e. Rs. 3,07,066 to the complainant along with interest as per the following arrangement:

A. An interest @ 6% p.a. calculated from 18.10.2012 (the date on which the complainant requested for cancellation of his booking) till 8.11.2021 (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 7.1.2022;

C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid Clause (A) on or before 7.1.2022, the entire amount is to be refunded along with an

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interest @ 9% p.a. calculated from 18.10.2012 till the actual realization of the amount. 14. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of A. Rs. 1,00,000 as cost for mental agony and harassment to the complainant; and D. The litigation cost to the extent of Rs. 25,000. 15. Applications pending, if any, stands disposed of in terms of the aforesaid judgment. 16. Applications pending, if any, stands disposed of in terms of the aforesaid judgment. 17. 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. 18. File be consigned to record room along with a copy of this Judgment. Complaint allowed.