Case Briefs
Truth and Youth (TAY) 2021. All rights reserved.

Shalini Verma vs Supertech Ltd. & Anr.


Author: Bharat Sharma, 3rd Year student at RNB Global University.


Citation: N/A 

Date of Decision: April 5, 2021

Bench: S. D. Sehgal

Original Copy: N/A

Statutes involved: Consumer Protection Act, 1986 

 

Issue in question: 

  • Whether there is a deficiency in Service on the part of the opposite party or not?
  • Whether the opposite party is liable to pay the compensation to the complainant for the Mental agony and harassment?

Background of the case: 

  • Mrs. Shalini Verma (complainant) booked a flat in the project of Supertech Limited (Opposite Party) in Sector-74, Noida, Gautam Buddha Nagar, Uttar Pradesh.  On 05.11.2011, Flat of 1-BHK having a super area of 520 sq. ft. ,9th floor, in North Eye Tower Situated in Sector-74, Noida, Uttar Pradesh was allotted to the Complainant. Rs. 36,57,059/- was decided as the total consideration of the flat. And Rs. 3,65,706/- was paid by the complainant towards the booking of the flat.
  • According to the allotment letter, the opposite party promised to hand over the flat possession to the Complainant by December, 2014.  Rs 27,44,253/- was already paid by the complainant to the opposite Party on his demand. When Complainant and her son visited the construction site, they both were shocked to see that there is no chance and there will be no hope as well that the project will be completed and the opposite party will give the possession to the Complainant by December, 2014. 
  • On 12.10.2016, the complainant’s son wrote an email to the opposite party about the status of the project completion, for which the complainant was paid money. On 15.10.2016, in response to the email the opposite party informed that the possession of the flat will be given to the Complainant by December,2017.
  • After finding the acts of the opposite party in delaying the date of giving possession, the complainant was dissatisfied and started demanding the entire amount paid by the complainant to the opposite party. The opposite party did not give much attention to the request of the complainant for refund the amount and kept giving assurance that the project will be completed and handed over the possession to the complainant soon. The complainant approached the commission alleging deficiency of service and unfair trade practice on the part of the opposite party.
  • The Opposite Party raised some objections regarding the complainant case – First, that there is an Arbitration clause in the allotment letter/Agreement, hence, the dispute should be adjudicated by the Arbitrator and the consumer complaint can’t be adjudicated by the commission. Secondly the business activity of the opposite party was carried from the Sector-58, Noida, Gautam Buddha Nagar, Uttar Pradesh, means the commission has no jurisdiction to entertain this consumer complaint. Thirdly, the complainant booked the said flat for the commercial purpose, to earn profit, that’s why according to the Consumer Protection Act, 1986 the complainant is not a ‘Consumer’. 
  • Fourthly, in case of a construction contract the time is not an essential element, and mere delay in the time is not the ground of repudiation. Fifthly, that delay in the construction of the project was because of the farmers’ agitation, which is not under the control of the opposite party and that’s why the opposite party cannot be liable at the point of deficiency in Service. Sixthly that the National Green Tribunal had also passed an order restricting the extraction of the ground water for the construction purpose in that situation the opposite party couldn’t interfere. 

Judgment: 

  • Both Complainant and the opposite party present their Evidence by way of affidavit to prove their allegations, now the case was listed for the final argument before the commission. The first objection made by the opposite party is related to the Arbitration clause existing in the allotment letter, and this commission have no jurisdiction to  deal with this issue Commission refer the judgment of the Apex court in the Case of Emaar MGF Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), and said that in this present case special remedies were provided under the Consumer Protection Act, 1986 that’s why jurisdiction of the commission cannot be affected by the existence of the Arbitration clause. adjudicate this dispute. 
  • The next issue related to the territorial jurisdiction court said that as the office of the opposite party is situated at 1114, Hemkunt Chamber, 89, Nehru Place, New Delhi -110019, which falls within the territory of Delhi that’s why the commission has the territorial jurisdiction to deal with this dispute.
  • The next argument raised by the opposite party is that the complainant is not a consumer under the Consumer Protection Act, 1986 because the flat is purchased for the commercial purpose. Commission referred to the case Kavit Ahuja vs. Shipra Estate, I (2016) CPJ 31.  and observed that the opposite party has failed to prove any documentary evidence that the complainant is not a consumer here and according to the principle of evidence that suspicion cannot take place of proof applicable in this case.
  • On the question of deficiency in service on the part of the opposite party, the commission said that the opposite party was bound to hand over the flat possession to the Complainant by June 2015 and still the possession of the flat was not handed over to the Complainant. Hence, there is deficiency in service on the part of the opposite party because the opposite party has failed to hand over the possession of the flat within the stipulated time decided by both the parties.
  • Further, the Commission allowed relief to Complainant I and directed to the opposite party to pay an amount of Rs. 27,44,253 to the Complainant along with interest as per following arrangement: A. An interest of 6% will be calculated till the date of 05.04.2021 on every instalment received by the opposite Party. (B) The opposite party pays the entire amount to the complainant before the date 30.06.2021. (C) If the opposite party fails to pay the entire amount along with the interest rate decided in the above clause, then the opposite party has to pay the amount on the 10% interest rate.
  • Commission in addition directed to the opposite party to pay Rs. 2,00,000/- as an amount for mental agony and harassment to the Complainant. Along with the litigation cost of Rs. 50,000/-. 

Critical analysis: 

  • So, in this present case Consumer complaint has been filed before the commission under Section 17 of the Consumer Protection Act, 1986. And the deficiency in Service under the Consumer Protection Act,1986 was also discussed in this case.
  • Then the principle of evidence that suspicion cannot take the place of proof was also discussed in this case. At the end Mental agony and harassment was also discussed and the Commission directed to pay compensation also for that.

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