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Sanjiv Trikha (D.I.G.) v/s Supertech Limited

Company & Directors' Information:- SUPERTECH (INDIA ) PRIVATE LTD. [Active] CIN = U74899DL1987PTC029093

    Complaint No. 533 of 2016

    Decided On, 18 February 2021

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, MEMBER

    For the Petitioner: Amit Trikha, Advocate. For the Respondents: Sunil Goel, Advocate.

Judgment Text

Dr. Justice Sangita Dhingra Sehgal, PresidentVia Video Conferencing.1. The present complaint has been filed before this commission under Section 12 of the Consumer Protection Act, 1986 alleging unfair trade practices and deficiency in service by the opposite party, wherein the complainant has prayed for the following reliefs:(a) This Hon’ble Forum may kindly be pleased to direct the respondent to immediately get the Registry executed/done with the concerned sub-registrar/authority, in favour of the Complainant of FLAT NO. 1801, 17th FLOOR, SUPERTECH 34 PAVILLION, SITUATED AT PLOT NO C-78, SECTOR 34, NOIDA, without the complainant’s paying extra money.(b) This Hon’ble Forum may kindly be pleased to award a sum of Rs. 19,00,000 [Rupees Nineteen lakh only] towards emotional, physical, mental harassment and tortured, financial losses {towards rents, EMI’s, Interest for delaying handing over possession, etc.}, Humiliation and agony suffered by the complainant and his family members at the hands of the respondent company on various occasions, till date + club membership amount to be refunded.(c) Cost of the present proceedings be also awarded in favour of the complainant and against the respondents.(d) Such other or further orders may be kindly be passed and reliefs granted in favour of the Complainant and against the Respondents as this Hon’ble Forum may deem fit and proper under the facts and circumstances of the case.2. Brief facts necessary for the adjudication of the present complaint are that the complainant booked an apartment in the project of the Opposite party by the name and style “34 Pavilion, Aristo Heights, Sector 34, Noida” located at Noida on 3.3.2010, after making a payment of 10% of the Total Cost i.e. Rs. 6,30,935. Vide allotment letter dated 8.3.2010, a flat bearing No. AR/1801 on 17th floor of Aristo tower, 34 Pavilion, at Plot No. C 78, Sector 34 Noida, admeasuring 1595 sq. ft. was allotted to the complainant for a total sale consideration of Rs. 63,09,350. As per the allotment letter, the opposite party was to handover the possession of the flat by July 2012.3. As per the payment plan, the complainants were to pay 10% of the cost of the flat at the time of booking, 85% of the cost was to be paid within 45 days from the date of allotment letter and balance 5% was to be paid by the complainant on offer of possession. The complainant, having already paid an amount of Rs. 6,30,935 (i.e. 10% of the sale consideration) at the time of booking on 3.3.2010 to the opposite party, further made a payment of Rs. 53,62,948 (i.e. 85% of the sale consideration) on 16.4.2010.In order to satisfy the demands of the Opposite Party, the complainant got sanctioned a loan amounting to Rs. 28,00,000 from HDFC Ltd.4. On 19.12.2013,the complainant received the letter inviting Offer of Possession alongwith statement of dues, wherein, an amount of Rs. 5,00,958 was stated to be due. However, on the same date only, another Payment Demand Letter was also received by the complainant wherein the amount mentioned on the letter was to the tune of Rs. 3,30,015 and on the document attached with the letter as Annexure A was Rs. 5,38,781. There was ambiguity in the demands raised by the Opposite Party since on a given day i.e. 19.12.2013, the Opposite Party demanded three different sums as the amount payable by the complainant.5. On being harassed by the Opposite Party to make the payment of the balance amount, failure to do which would lead to the forfeiture of the entire amount paid by the complainant, the complainant honoured the demands of the Opposite Party.6. The complainant received a letter dated 24.1.2014 from the opposite party, reflecting no dues on the part of the complainant. Having received letter depicting no dues, the complainant’s wife visited the site at which the flat was being constructed and it was to her utter surprise that the flat was not at all inhabitable, with major construction work, still to be completed. The said fact was immediately brought to the notice of the Senior Officials and again, the possession of the flat was delayed, which was finally handed over on 14.5.2014, with patent defects still visible in the flat.7. Moreover, the complainant had already paid the amount of the registry to the Opposite Party amounting to Rs. 3,86,000 in January, 2014, however, till the time of the filing of the present complaint, the Opposite Party had not executed the conveyance deed in favour of the complainant and has also failed to pay compensation for delayed possession.8. Aggrieved by the deficient service of the Opposite Party of not handing over the possession within the stipulated time period as per the Allotment letter, the complainant filed the present consumer complaint before the commission.9. During the course of proceedings, notice was issued to Opposite Party vide order dated 3.6.2016, however it was received back. Consequently, a fresh notice was directed to be issued to the Opposite party vide order dated 22.09.2016, however, during the course of the day, Counsel for the Opposite Party appeared and was directed to file the written statement.10. On 24.11.2016, Counsel for the Opposite Party submitted that the written statement had been filed and the complainant. In its written statement, the Opposite Party had averred that the present complaint is devoid of merits and there is no deficiency on the part of the Opposite Party; that the complaint does not fall within the pecuniary jurisdiction of this Commission as the claim of the complainant is less than Rs. 20 lakh; that the Allotment Letter/Agreement carries an Arbitration Clause and all the disputes arising in the present complaint has to be adjudicated by an Arbitrator; that the Complainant is not a consumer within the definition as provided in the Consumer Protection Act, 1986.11. In the written statement filed on behalf of the Opposite Party, it has been further averred that this commission lacks the territorial jurisdiction to adjudicate the present complaint; that the additional charges demanded by the Opposite Party are within the provisions of the Allotment Letter/Flat Buyer’s Agreement and the complainant is bound to pay the same; that the present complaint is beyond the period of limitation as provided under the section 24A of the Consumer Protection Act, 1986 and that the complaint should be dismissed since it is devoid of merit.12. The complainant received the copy of the written statement and was directed to file the Rejoinder to the written statement, which was duly filed by the complainant along with the Evidence by way of Affidavit.13. On 14.12.2016, the Opposite Party was directed to file evidence by way of affidavit within 8 weeks. However, when the case was called for hearing on 19.5.2017, the Opposite Party sought some more time to file the same, which was opposed by the Counsel for the Complainant. This commission was of the view that in the interest of justice, one more opportunity should be given to the Opposite Party to file the Evidence by way of Affidavit, subject to a cost of Rs. 3,000. However, the same was not agreeable to the Counsel for the Opposite Party, consequently, the right of the Opposite Party to file Evidence by way of Affidavit was closed on 19.05.2017.14. The case was called for final adjudication on 19.1.2021. We have heard the Counsel for the parties and perused the material on record. The averments made in the written statement cannot be said to be proved as the Opposite Party has failed to file the Evidence by way of affidavit.15. We have perused the material available on record. The only issue to be decided is whether the Opposite Party is liable for the deficiency or service.* DEFICIENCY OF SERVICE16. The Counsel for the complainant has argued that since the Opposite Party has failed to handover the possession of the apartment by July, 2012 which is as per the terms of the allotment letter dated 8.3.2010, there exists deficiency of service on the part of the Opposite Party. Moreover, till date, the Opposite Party has failed to execute the conveyance deed in favour of the complainant, which is also an Unfair Trade Practice on the part of the Opposite Party.17. It is imperative to refer to the dicta of Arifur Rahman Khan and Ors. v. DLF Southern Homes Pvt. Ltd. and Ors., reported at VI (2020) SLT 50=IV (2020) CPJ 10 (SC)=2020 (3) RCR (Civil) 544, wherein the Apex court has discussed the expression Deficiency of Service, which is as follows:“23. …….The expression deficiency of services is defined in Section 2(1) (g) of the CP Act 1986 as:(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.24. 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 suffer 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.18. At this stage, we deem it appropriate to refer to the relevant clause of the allotment letter dated 08.03.2010 which reads as follows:“The possession of the unit shall be given to the Allottee(s) by the company in July 2012. However, this period may be extended due to unforeseen circumstances subject to maximum of six months. The possession period clause is applicable on timely payments by the allottee(s).”19. It is evident from the aforesaid clause that the Opposite Party was bound to handover the possession of the said Apartment by July, 2012. However, the perusal of record before us reflects that the possession was handed over by the Opposite Party only on 14.5.2014.20. Applying the aforesaid dicta of the Hon’ble Apex Court, we hold that the 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 delivery of possession of the apartment and kept the hard earned money of the complainant for about 4 years. Moreover, the Opposite Party has also failed to execute the conveyance deed in favour of the Complainant till date, which is an Unfair Trade Practice on the part of the Opposite Party, for which the Opposite Party is liable to compensate the complainant.21. Keeping in view the facts of the present case and the extensive law as discussed above, we allow the following reliefs as prayed for by the Complainant:I. Since the Complainant has already deposited an amount of Rs. 3,86,000 (approx.) as the charges for Stamp Duty, the Opposite Party shall get the conveyance deed executed in favour of the Complainant for the flat in question, within Two Months from the date of the present judgment, failing which, the Opposite Party shall be liable to pay an amount of Rs. 5,000 (Rupees Five thousand only) to the complainant for each day of delay, till the Conveyance Deed is executed in favour of the Complainant and the complainant shall not be bound to pay any more amount to get the Conveyance Deed executed in his favour;II. We further direct the Opposite Party to pay compensation for the delay in handing over the possession as per the following arrangement:A. An interest @ 6% p.a. calculated on an amount of Rs. 59,92,883 (being the amount paid by the complainant to the Opposite party) from 1.7.2012 (being the date on which the possession was to be handed over to the complainant) till 14.5.2014 (being the date on which the posses

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sion was actually handed over to the complainant);B. The rate of interest payable as per the aforesaid Clause (A) is subject to the condition that the Opposite Party pays the entire interest awarded on or before 30.4.2021;C. In case the Opposite Party fails to pay the interest awarded as per the aforesaid Clause (A) on or before 30.4.2021, the interest shall be calculated @ 9% p.a. on Rs. 59,92,883 from 1.7.2012 (being the date on which the possession was to be handed over to the complainant) till 14.5.2014 (being the date on which the possession was actually handed over to the complainant) and also additional interest on an amount of Rs. 59,92,883 calculated from the first date of default, i.e. 1.5.2021 till the actual realization of the total amount.III. 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. 2,50,000 as cost for mental agony and harassment to the complainant; andB. The litigation cost to the extent of Rs. 50,000.22. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.23. 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.24. File be consigned to record room along with a copy of this Judgment.Complaint allowed.