SUBHASH KUMAR Vs. RAHEJA DEVELOPERS LTD

JUDGEMENT

(1.) This complaint under sec. 58(1) of the Consumer Protection Act, 2019 (in short, the 'Act') has been filed against the opposite party alleging harassment and deficiency in service in cancellation of one residential unit and returning part of the payment made and not refunding the payment received in respect of other apartments booked by him in five different projects of the opposite party. This order will also dispose of Consumer Complaint No. 140 of 2022 which pertains to the same respondent and is based on similar set of facts.

(2.) The facts, as per the complainant, are that he had booked residential apartments in the following projects promoted by the opposite party: Raheja Atlantis, Raheja Revanta, Raheja Vedanta, Raheja Atharva, Raheja Sector 99 and Raheja Panipat and paid the total sale consideration. He alleges that the opposite party defrauded him since the said flats had already been sold/transferred to third parties much before. A Flat Buyers' Agreement was entered in to between the parties, the records of which are with opposite party no. 3. It is submitted that the cause of action is still open as the flats have not been delivered to him and his family members in whose names the bookings were done as per judgment of this Commission in Satish Kumar Pandey and Ors. Vs. Unitech Limited, III (2015) CPJ 440 (NC). Reliance is also placed on the judgment of the Hon'ble Supreme Court in Narne Construction Pvt Ltd. Vs. Union of India and Ors., (2012) 5 SCC 359. It is the complainant's case that since he has exhausted all remedies for the possession of flats before the Sr. Town Planner, Gurgaon and DCIT (Income Tax) he has approached this Commission praying to grant:

(3.) The complaint was resisted by the opposite parties 1, 2 and 4 by way of a written statement/reply. Preliminary objections were taken that the complaint was hopelessly barred by limitation as the complaint related to a transaction which was dtd. 7/11/2007 and was cancelled on 29/6/2010 through a letter and was accepted without protest by the complainant. As per sec. 24(A) of the Act, 1986 the complaint should have been filed at best within 2years. The complaint filed on 14/7/2022 was, therefore, inadmissible. It was also contended that the complainant was not a 'consumer' under the Act as booking of six residential flats by him was clearly for a commercial purpose and that the burden of proof lay on the complainant to disprove this. Further, it was contended that the complaint was not a consumer as no cogent evidence had been brought on record to prove the allegations made. It was contended that the complainant was 'forum shopping' as he had already filed a criminal complaint before the Economic Offences Wing on 1/7/2022 against the opposite party. The opposite parties contend that no service was rendered within the meaning of sec. 2(1)(o) of the Act as laid down by the Hon'ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711 and that there was no agreement for rendering of a 'service' since there was an agreement for 'sale' of apartment/plot. No case was made out, according to the opposite parties for unfair trade practice in the absence of any allegation regarding promotion of the alleged service. It is averred that the matter required detailed adjudication of the claim and was therefore precluded from the summary jurisdiction of the Act. Finally, it was urged that under the Act relief of interest was not permissible and that compensation can be awarded only if loss is proved due to negligence. The complaint was also opposed on merits.