State Consumer Disputes Redressal CommissionSantosh Rani vs Khatri Project Pvt. Ltd. on 10 December, 2012IN THE STATE COMMISSION :
  DELHI 

   

 Date of Decision:
10.12.2013 

   

 Complaint
No. 31/2009 

 
   
   
   

  
  
   
   

Smt. Santosh
  Rani 
   

W/o Shri
  Sunil Kumar Utreja, 
   

R/o B-1/6, Rana Pratap Bagh, 
   

Delhi-110 007 
  
   
   

  
   

  
   

..Complainants 
  
 
  
   
   

  
  
   
   

  
  
   
   

  
  
 
  
   
   

  
  
   
   

Khatri
  Projects Pvt. Ltd., 
   

Through C.M.D., Sh. M.B. Khatri, 
   

Regd. Office, Multitechs Classic Complex, 2nd Floor, Plot
  No.9, Sector-5, above HDFC Bank, Rohini, Delhi-110
  085 
  
   
   

  
   

  
   

  
   

  
   

  
   

-----Opposite Party 
  
 


 

CORAM 

 

Justice Barkat Ali Zaidi, President 

 

V.K.Gupta, Member(Judicial)1.   Whether
reporters of local newspaper be allowed to see the  

 

 judgment?2.   To be
referred to the reporter or not?V.K.GUPTA, MEMBER (JUDICIAL)1. This
is a complainant underSection 17of the Consumer Protection Act, 1986.2. Brief
facts are that the complainant approached the OP for allotment of the shop in Khatri City Centre, Commercial Complex, Plot No.3, Mukherjee Nagar,   Delhi for her son and shop No.7 Ground Floor,
area 195 Sq.ft. was booked. The complainant opted payment plan No.1 and
deposited Rs.2,20,000/- and the OP has issued the receipt
of the same on the same day. It was
informed by the OP to the complainant that all the formalities, as mentioned in
para No.3 of the complaint were completed by the DDA
regarding the plot. The complainant has
paid Rs.18,51,000/- by way of different installments,
the details of which are given in para No.12 of the
complaint. The balance full and final
payment along with allied charges were payable by the complainant to the OP at
the time of handing over the possession of the constructed shop to the
complainant in March, 2007. The son of
the complainant is a qualified diploma holder in Pharmacy in June, 2006 and he
was registered on 20.4.2007 as Registered Pharmacist by Delhi Pharmacy Council. The said shop was an urgent need to the son
of the complainant to start the business of the chemist in the said shop. Unfortunately, the OP did not deliver the
possession of the shop within the stipulated time i.e. by March, 2007 in as
much as it was not build up as yet. The
OP did not adhere the terms and conditions of the agreement, despite the fact
that a major amount of Rs.18,51,000/- (inclusive of
booking amount of Rs.2,20,000/-) has been paid to the OP by the complainant,
however, it was stated by the OP that the possession of the shop in
question shall be delivered in December,
2008, but even after of expiry of 2008, the possession was not delivered. Obviously there is a serious deficiency in
service by the OP. Further, the location
of the plot No.3, on which the shop was in question was booked by the
complainant, is more valuable then plot No.1 & 2. The complainant claims the possession of the
constructed shop No.7, Ground Floor, Plot No.3, Mukherjee
Nagar, Delhi within the terms and condition of the agreement executed between
her and the OP and in the alternative a damages of Rs.50 lakhs,
refund of Rs.2,20,000/-, which is the booking amount,
Rs.6 lakhs as the loss of earning of his son, Rs.1 lakh as damages for mental agony and harassment and
Rs.50,000/- as the litigation charges.3. The
OP has filed the written statement and denied the entire allegations. It is contended that the complainant is not a
consumer within the meaning ofSection 1 (1)(d)of The
Consumer Protection Act, 1986.Admittedly the complainant booked a shop for commercial purpose for
operating a shop and it is not covered under the definition ofThe Consumer
Protection Act, 1986. It is admitted
that the complainant paid Rs.18,51,000/- against the booking of the allotment
of the shop, but due to certain unavoidable circumstances the project could not
be started as per schedule and the OP showing its bonafied
as returned all the money received from the complainant except of
Rs.2,20,000/-, which is the booking amount.This amount was retained by the OP with the consent of the complainant
and on the request of the complainant against the booking amount of space in
other project of the OP. The OP had no
intention not to deliver the shop in question.The entire project was to be abandoned due to objection on the MCD and
DDA, hence the OP was not in a condition to initiate the construction and
deliver the possession of the shop in question.
It is pertinent to mention that OP has purchased the land in auction by
the DDA for an approved project for commercial building, but the issue of sever
and water was not resolved by the DDA and MCD and the project has no value
without these basic amenities.Obviously, the project could not be completed for these reasons, which
were beyond the control of the OP and there is no malpractice or deficiency in
service on the part of the OP. The
project was kept in abeyance by the OP and there is no shop of which the
possession can be delivered to the complainant in pursuance of the terms and
conditions executed between the complainant and the OP.4. The
complainant has also filed the rejoinder and denied the fresh allegations
raised by the OP in his written statement.5. Both
the parties have filed the evidence by way of affidavit.6. We
have heard Ld. Counsels of both the parties and perused the material on record.7. At
the outset, the counsel for the OP has raised a preliminary objection with
regard to the maintainability of the complaint on the ground that the booking
was alleged to have been made by the complainant in respect of the shop which
is a commercial purpose. On the other
hand, it is argued by the Counsel for the complainant that of course it is a
shop in question, but it is for the livelihood of the son of the complainant. The material on record goes to show that
specific averment has been made by the complainant in para
No.14 of the complaint that the shop in question is urgently required to the
son of the complainant to start the business of chemist for his livelihood in
as much as he is a qualified diploma holder in Pharmacy in which the
registration has been made. To this
effect an affidavit has also been filed by the complainant, which is unrebutted. It is
the settled principle of law that there is no reason to disbelieve the
uncontroverted affidavit. Under these circumstances, the complainant is
a consumer within the meaning ofSection 2(1) (d)of The Consumer Protection
Act, 1986.8. In
this case some of the facts are admitted by both the parties. It is admitted by both the parties that
complainant booked a shop No.7 Ground Floor,
area 195 Sq.ft. in Khatri
City Centre, Commercial Complex, Plot No.3, Mukherjee
Nagar, Delhi on 2.3.2006 and paid Rs.2,20,000/- and on the same day the OP has
issued the receipt of the same.Thereafter on the different dates the complainant has paid 10
installments of Rs.16,31,000/-. In this way it is also admitted by both the
parties that the complainant has paid a total amount of Rs.18,51,000/-
(inclusive of booking amount of Rs.2,20,000/-).
It is also admitted by both the parties that the installments amount
worth Rs.16,31,000/- has been returned to the complainant, but an amount of
Rs.2,20,000/-, which is the booking amount, has not been refunded.9. Now
the position remains that the OP has retained an amount of Rs.2,20,000/- on the plea that in case the construction in
respect of the other shop is started, such shop shall be given. The case of the complainant is that no
construction at all has been started by the OP in respect of the Plot No.3, on
which the shop in question is to be constructed and the possession shall be
given to the complainant. The case of
the OP is that the construction in respect to the land was to be started which was
purchased by the OP in auction from DDA for an approved project for commercial
building, but the issue of the sever and water was not resolved by the DDA and
MCD, therefore, construction could not be started for the reason beyond control
of the OP. The OP has filed various
papers which show that before the start of the construction, the DDA and MCD
has raised the objection in respect of the MAP of the building in question,
which have not been resolved so far.Obviously, the OP was prevented to raise the construction on account of
the objection raised by DDA and MCD as the OP has every intention to raise the
construction and deliver the possession of the shop in question to the
complainant, as per the agreement.Obviously, it would be worthwhile
to mention that when a request was made by the complainant to the OP for the
refund of the amount, an amount of Rs.16,31,000/- was refunded immediately, for
which the complainant has no grudge. However, it is mentioned in the complainant in
para No.21 that an amount of Rs.2,20,000/-, being the
booking amount, may be retained by the
OP, if the construction is to be started in respect of the shop in dispute, but
admittedly no construction has been started so far.10. The
complainant has made a prayer that the OP be directed to handover the
possession of the shop No.7, situated in Khatri City
Centre, Commercial Complex, Plot No.3, Mukherjee
Nagar,   Delhi. This prayer cannot be conceded as there is no
construction of the shop No.7, Khatri City Centre,
Commercial Complex, Plot No.3, Mukherjee Nagar,  Delhi and in the alternative, the possession of the
construction shop of the equivalent value of the shop of Plot Plot No.3, Mukherjee Nagar,   Delhi. The complainant has not pointed out any where
in the complaint nor in the Affidavit that adjacent to the shop in dispute, the
OP has raised the construction of such other shop. Therefore, this prayer can also not be
considered.11. The
complainant has also claimed the damages of Rs.50 lakh
on account of hike and shooting up of the price of the property in that area
and Rs.6 lakh as the loss of earning of two years of
his son. Both these two amounts are
hypothetical in nature; therefore we are not inclined to award any such amount.12. The
complainant has also claimed Rs.one lakh as compensation for mental agony and harassment and
Rs.50,000/- as the litigation charges for retaining
the amount of Rs.2,20,000/- as the booking amount. It may be stated here that this amount was retained
by the OP with the consent of the complainant, therefore, it cannot be said
that OP has caused any damages to the complainant. Further it may be stated that in order to
receive the amount of Rs.2,20,000/-, the complainant
has knocked the doors of the State Commission and must have incurred the
expenses in the litigation, to which we quantify as Rs.10,000/-. Despite the request made by the complainant
for the refund of Rs.2,20,000/-, it was not refunded
and arbitrarily enjoyed the fruits of this money by the OP. This amount was deposited by the complainant
on 2.3.2006 and it is near about seven years that the complainant is deprived
of the use of this amount, for which the OP is liable to pay interest @ 9% p.a. 

 

  

 

 We
are hereby direct that:-i)            
The
OP shall refund Rs.2,20,000/- to the complainant along
with interest @ 9% p.a. from 2.3.2006 ( date of deposit) till the date of
realization.ii)          
The
OP shall also pay Rs.10,000/- as litigation charges.(Justice Barkat Ali Zaidi) 

 

President 

 

  

 

  

 

(V.K.Gupta) 

 

Member (Judicial) 

 

 Arya