w w w . L a w y e r S e r v i c e s . i n



Sharad Kumar Kabra & Another v/s NIHO Construction Ltd. & Another

    Complaint Case No. 105 of 2012

    Decided On, 30 September 2014

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, THE HONOURABLE MR. JUSTICE S.A. SIDDIQUI
    By, JUDICIAL MEMBER & THE HONOURABLE MR. S.C. JAIN
    By, MEMBER

    For the Complainant: --------- For the Opposite Parties:--------



Judgment Text

S.A. Siddiqui, Member (Judicial), J.

1) Complainants Sh. Sharad Kumar Kabra and Smt. Shradha Kabra filed this complaint, against the OPs for directing them to refund deposited amount of Rs.21,39,535/- along with interest @ 21% p.a. or to handover the possession of the plot and pay penalty @ Rs.5 per sq.ft. per Month, compensation of Rs.2 Lac for harassment and payment of Rs.22,000/- towards costs.

2) It has been alleged in the complaint that the OPs are engaged in the business of real estate, sale and purchase and development. Believing the add made by the OPs, complainant decided to purchase an apartment in their scheme namely 'Scottish Gardens'. The Complainant through application dt. 20.09.2004 applied for allotment of apartment No. J-001, Upper Ground Floor having super built up area admeasuring 1769 sq.ft. situated at Village Mohiuddin Pur Kanwani, Tehsil Dadari, District Gautam Budh Nagar, Noida, U.P. Pursuant there to the OPs allotted the said unit to the complainant for total cost of Rs.22,85,300/- (Rs.Twenty Two Lakhs Eighty Five Thousand Three Hundred Only) copy of the allotment letter is annexed C-1. The aforesaid plot was booked for residential purpose and not for commercial/investment purpose. The complainant paid a sum of Rs.2,90,535/- through cheque and Rs.18,49,000/- through loan taken from IDBI Bank paid through bank draft No. 090020 dt. 21.12.2004. The OPs acknowledged the payments by issuing receipts duly signed and sealed. A plot buyers agreement dt. 17.12.2004 was executed between the complainants and the OPs. Copy of the agreement dt. 17.12.2004 is annexed-2. The copy of the receipts of payments are annexed as annexure C-3 (Colly).

3) As per agreement the complainant was required to pay balance amount of Rs.1,45,765/- (approximately 5% of the total sale consideration). At the time of delivery of the possession of the said plot by OPs. As per clause 18 A, the possession of the aforesaid plot was to be given within 30 months from the date of agreement dt. 17.12.2004. Further, as per clause 18 C in the event of undue delay in handing over the possession, the OPs shall be liable to pay penalty @ Rs.5 per sq.ft. per Month for the delayed period. Thus the complainant paid Rs.21,49,535 out of total sale consideration of Rs.22,85,300/-. The complainants were always ready and willing to pay the balance amount at the time of handing over of the possession of the plot to the complainant.

4) Through letter dt. 20.02.2006 complainants intimated the OPs about foreclosure of the home loan account and an NOC issued by IDBI bank indicating full repayment of loan amount of Rs.18,49,000/- since then the complainants had been in regular touch and contact with the officials of the OPs. In the month of April 2009, an oral intimation was received by the complainants for inspection of the plot followed by letter dt. 01.01.2010 about handing over of the possession of the said plots within 10 days from the date of settlement of the account. Copy of the letter dt. 20.02.2006 is annexed C-4 and copy of the letter dt. 01.01.2010 is annexure C-5. Complainants also wrote a letter dt. 28.05.2011 duly acknowledged by OPs enquiring about the delay in possession of the plot. The complainants received an E-mail dt. 05.08.2011 from the OPs informing that the possession shall be delivered on or before 30.09.2011. However, the possession was not delivered as promised. Complainant sent a reminder letter dt. 19.10.2011 to Sh. Lokesh Sharma an official of the OPs, Sh. Lokesh Sharma had organised a meeting with the senior officials of the OPs who informed the complainants that renovation work was pending at the site of the plot and that the plot will be handed over to the complainants shortly. Copy of the letter dt. 28.05.2011 and E-mail exchanged are annexed as annexure C-6 (Colly). When the complainants went to gather first information about renovation work nothing was found to have been done towards renovation. Complainants never suspected dishonest intention of the OPs and always believe that the possession of the plot will be handed over soon as assured but despite payment of app. 95% of the total cost possession was not handed over by the OPs for the reasons best known to them. The OPs committed gross breach of terms of the contract and harassed the complainant in various ways which cannot be estimated in terms of money. However, a modest sum of Rs.2 Lac is being claimed as compensation/damage. Besides, the complainants are also entitled for litigations costs of Rs.22,000/- and Rs.5500/- as cost of notice. This Commission/Forum has jurisdiction to entertain and adjudicate the complaint. Further as per the clause 18 C of the agreement dt. 17.12.2004, the OPs be directed to pay penalty @ Rs.5 per sq. Ft. Per month for the delayed period, which comes to Rs.6,81,065/-.

5) OPs filed written statement. Raising certain preliminary objections. The OPs alleged that this Commission/Forum has no territorial jurisdiction to adjudicate the present complaint. The complaint was misconceived and vexatious having no cause of action and was solely aimed upon harassing and blackmailing the OPs. Another preliminary objection was that the plot in question was booked for commercial/investment purpose therefore the complainant do not fall within the purview of consumer as defined under Section 2(1)(d) of the Consumer Protection Act 1986. The OPs further maintained that complainant himself was at fault by not taking possession of the flat. Whenever, he was offered possession and was asked to take possession after making balance payment, the complainants did not come forward. Thus the complainants themselves defaulted in taken physical possession and there was no deficiency of service on the part of the OPs. It was denied that OPs assured complainants that possession shall be handed over within 30 months. OPs tried their best to complete the project within the stipulated time but the project got delayed due to unexpected circumstances beyond the control of the OPs, OPs were therefore not liable to pay any damages.

6) It is noteworthy that, it was an admitted case of the complainants that they were offered possession of the flat number of times through telephonic conversation as well as through letters and E-mails etc. But complainants had not intentionally taken offered possession of the flat and all the time they visited the unit they raised new demands. The OPs did their best to satisfy the complainant’s demands but they did not take possession of the flat. Instead they filed a false and frivolous complaint before this Commission, just to harass and blackmail the OPs. The complainants were not entitle to any compensation or costs and the complaint was liable to be dismissed with penalty under section 26 of the Act for filing false and vexatious complaint.

7) Parties led evidence in support of their cases by filing affidavits respectively. However, at the last stage of hearing, the OPs failed to appear on several dates and therefore arguments were heard on behalf of the complainants (Sh. Dheeru Nigam Advocate).

8) Firstly, we propose to adjudicate preliminary issues raised by the OP. The first objection raised by OP was regarding lack of territorial jurisdiction. The flat in question is situated at Indrapuram, Gautam Budh Nagar, Noida, U.P. Consequently, the Courts/Forums situated in New Delhi, lack jurisdiction to entertain and adjudicate the complaint. However, it has not been disputed that the office of the OP is situated at X-22, First Floor, Hauz Khas, New Delhi-110016 therefore business affairs of the OP company are being conducted from its office in new Delhi, therefore there is no merit in the contention of the OPS that this Commission/Forum has lack of jurisdiction to entertain and adjudicate this complaint.

9) The next objection raised by the OPs was that the complainants are not consumer within the meaning of the section 2(1)(d) of the Act. It was contended in the written statement that the flat in question was booked by the complainants for commercial/investment purpose and the complaint was liable to be rejected on this ground alone. The OP has simply raised this plea but has not bothered to support the plea with sufficient evidence. Mere assertion on the part of the OPs does not suffice. The expression ‘commercial purpose’ has not been defined in the Act. In its common parlance commercial purpose is that purpose the objective of which is to make profit and it encompasses of business activities. It has to be noted that distinction between the commercial purpose and non commercial purpose is so obscure that it becomes very difficult to reach to a definite conclusion. In our view the expression must be given a precise and restrictive meaning in favour of the consumeRs.In view of the aforesaid discussion and lack of evidence in support of the assertion, we hold that complainants are ‘consumers’ within the meaning of 2(1)(d) of the Act.

10) This takes us to the next stage i.e. disposal of the complaint on merits. It has not been disputed that complainants through application dt. 20.09.2004 applied for allotment of apartment number J-001, Upper Ground Floor at 'Scottish Gardens' having super built up area measuring 1769 sq.ft. situated at Village Mohiuddin Pur, Kanwani, Tehsil Dar, District Gautam Budh Nagar, Noida, U.P. The OPs allotted the flat/unit to applicants, the total cost of the unit was Rs.22,85,300/- out of which complainants paid a sum of Rs.Rs.21,39,535/- which is approximately 95% of the total cost. It has further not been disputed that balance amount of Rs.1,45,765/- was payable at the time of handing over/delivery of the possession of the said flat/plot.

11) It is also undisputed fact that plot buyers agreement was executed on 17.12.2004. As per clause 18 A of the buyers agreement possession was to be handed over within 30 months from the date of the execution of the agreement dt. 17.12.2004 but since then 10 years have passed but till date possession of the flat in question has not been handed over to the applicants. There is a penalty clause in the agreement dt. 17.12.2004. As per clause 18 C in the event of undue delay the OPs were liable to pay a penalty @ Rs.5 per sq.ft. per month for the delayed period.

12) It was argued that in view of the inordinate delay in handing over the possession, the complainants have lost faith in the project of the OP. They were therefore left with no option but to file consumer complaint for refund of the deposited amount @ 22% p.a., compensation and costs of litigation. They also claimed refund/adjustment of penalty for the delayed period. In the alternative complainants had also claimed possession of the flat/plot. At the time of arguments, Ld. Counsel for the complainants emphasised that his clients are no more interested in refund of the deposited amount but are only interested in taking over possession of the flat in question as approximately 95% of the total costs of the flat has already been paid. The complainants were always ready and willing to pay balance 5% amount at the time of handing over the possession.

13) The OPs in their written statement have stated that, the OPs tried their best to complete the scheme within stipulated time but due to intervening circumstances beyond their control they were unable to complete the project within time. However, the OPs did not give specific and clear reason for inordinate delay of about of 10 years in the completion of the project. Therefore the vague explanation cannot be accepted regarding the cause of delay and it is rejected. At the time of arguments the Ld. Counsel for the complainants has not pressed the penalty clause. Undoubtedly, there has been appreciation of the values of the property from the time it was allotted till date.

14) There has been gross deficiency of service on the part of the OPs as they could not hand over possession to the complainant within stipulated time an

Please Login To View The Full Judgment!

d inordinate delay has been caused in handing over the possession. Since the complainants have paid a sum of Rs.21,49,553/- out of total sum of Rs.22,85,300/-, in our considered view, they are entitle to get physical possession of the flat/plot in question, of course, after payment of balance amount of Rs.1,45,765/-. Consequently, complaint succeeds and we pass following order:- OPs are directed to handover actual physical possession of apartment number J-001, 'Scottish Gardens' Upper Ground Floor having super built up area measuring 1769 sq.ft. Situated at Village Mohiuddin Pur, Kanwani, Tehsil Dadri, District Gautam Budh Nagar, Noida, U.P. complete in all respect to the applicants within a period of 30 days from the date of receipt of the copy of the judgment failing which applicants shall be entitled to take recourse to provision of section 25/27 of the Act. The OPs will be entitled to receive balance amount of Rs.1,45,553/- from the complainants before handing over of the possession. a. The OPs are further directed to pay a sum of Rs.1 Lac towards compensation for mental pain, agony and harassment. OPs will also pay a sum of Rs.10,000/- towards costs of litigations. 15) Copy of the order be made available to the parties free of cost as per rule, thereafter file be consigned to record room.
O R