Punjab

StateCommission

A/1008/2015

Parsvnath Developers Ltd. - Complainant(s)

Versus

Chander Jain - Opp.Party(s)

Ashwani Talwar

11 Apr 2017

ORDER

 

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

 (1)                   First Appeal No.1008 of 2015

 

                                                         Date of Institution:    07.09.2015

                                                          Order Reserved on: 10.04.2017  

                                                          Date of Decision    :  11.04.2017

 

Parsvnath Developers Limited, A Company incorporated under the Provisions of Companies Act, 1956, Having its Registered Office at Parsvnath Metro Tower, Near Shahdara Metro Station, Shahdara, Delhi 110032, (Through its Authorized Signatory Sh.R.C. Gupta Central Manager (CRM)

 

                                                                     ..Appellant/Opposite party

                                      Versus

 

Mr. Chander Jain, S/o Sh. Krishan Avtar Jain, H.No. 44-B, Kitchlu Nagar, Civil Lines, Ludhiana.

 

Second Address :

 

18, Guru Nirankari Colony, Opposite Daffodils Beauty Parlour, Bombay Tyre Road, Sunder Nagar, Ludhiana.

 

                                                                …..Respondent/Complainant

 

         

First Appeal against order dated 03.08.2015 passed by the District Consumer Disputes Redressal Forum, Patiala

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

                   Smt.Surinder Pal Kaur.

Present:-

          For the appellant                    :  Sh.Satpal Dhamija, Advocate

          For the respondent       :  Sh. Lalit Pathak, Advocate      

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                                      AND

 

(2)                        First Appeal No.1012 of 2015

 

                                                          Date of Institution: 07.09.2015

                                                          Order Reserved on:10.04.2017  

                                                          Date of Decision    : 11.04.2017

 

Chander Jain son of Sh. Krishan Avtar Jain, resident of H.No. 44-B, Kithchlu Nagar, Civil Lines, Ludhiana, Punjab now at Jain Sons, 18, Guru Nirankari Colony, Opposite Daffodils Beauty Parlour Bombay Tyre Road, Sunder Nagar, Ludhiana, Punjab.

 

                                                                     …..Appellant/Complainant

 

                                                Versus

 

1.      M/s Parsvnath Developers Ltd., 6th Floor, Arunachal Building,          19, Barakhamba Road, New Delhi 100001.

2.      M/s Parsvnath Developers Limited, Parsvnath Metro Tower,   Near Shahdra Metro Station, Shahdra, Delhi 110001.

 

 

                                                            ..Respondents/Opposite parties

         

First Appeal against order dated 03.08.2015 passed by the District Consumer Disputes Redressal Forum, Patiala

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

                   Smt.Surinder Pal Kaur.

Present:-

          For the appellant                     :  Sh.Lalit Pathak, Advocate

          For the respondents     :  Sh.Satpal Dhamija, Advocate

      ……………………………………………………………………………

                                     

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

          By this common judgment, we intend to dispose of the above- referred two first appeals, as they have arisen out of the same order dated 03.08.2015 of District Consumer Disputes Redressal Forum Patiala and, thus, can be disposed of together. The order shall be pronounced by us in main First Appeal no.1008 of 2015 titled as       "Parsvnath Developers Ltd  versus Chander Jain."

2.      First Appeal No.1008 of 2015 has been preferred by appellant against order of District Forum Patiala dated 03.08.2015 directing appellant to make the payment of compensation @ Rs.5/- per sq. ft for the delayed construction of the flat w.e.f. 03.11.2011 till date of filing the complaint with interest @ 10% per annum, besides Rs.5000/- as costs of litigation. Respondent of this appeal is complainant in the original complaint before District Forum and appellant of this appeal is opposite party therein and they be referred as such hereinafter for the sake of convenience. Second connected First Appeal No.1012 of 2015 has been preferred by complainant now appellant of this appeal against order of District Forum Patiala dated 03.08.2015 for enhancement of amount. Respondents of First Appeal No. 1012 of 2015 are the opposite parties in the original complaint and appellant of this appeal is the complainant in the complaint therein and they be referred as such hereinafter for the sake of convenience.

3.      Complainant Chander Jain has filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OP/Company deals in construction work by constructing flats for sale to the interested persons. The complainant booked three bed room flat no. T-10-301 third floor in Tower No.T-10 having approximate floor area of 1580 sq. ft  (146.78 sq. ft) in Parsvnath Castle Rajpura Punjab for the value of Rs.18,17,000/- as per agreement dated 03.05.2008 under Plan A (down payment plan with 12% rebate) and as per the terms of the agreement's clause 10, the construction of the flat was to be completed within the period of 36 months from the date of commencement of the project. The complainant deposited amount of Rs.18,17,000/- with OPs. Tower No. T-10 in Parsvnath Castle Rajpura on the third floor in Parsvnath Castle Rajpura was not completed by the OPs and even the construction of the flats has not started till date. The OPs committed the breach of terms and conditions of the buyers agreement dated 03.05.2008. The OPs failed to construct the flat and deliver the possession of the flat on the basis of above buyers agreement to complainant. The OPs are liable to pay compensation of Rs.15 lac with interest 12% p.a. The OPs are deficient in providing service to the complainant in accordance with buyers agreement dated 03.05.2008. The OPs never issued notice to the complainant for payment of balance amount of the flat and for delivery of possession, registration and completing other formalities. Legal notice dated 14.10.2014 was sent by him to OPs. The OPs had not replied to legal notice nor refunded the deposited amount of the complainant with interest. There is clause 10 (c) in buyers agreement setting out that in case of delay in the construction of the flat beyond the period, as stipulated, subject to force majeure and other circumstances, the developers shall pay to the buyer compensation @ 53.80 per sq. mtr or @ Rs.5/- per sq. ft of the super area of the flat per month for the delayed period. The OPs have also not complied with it. The complainant has, thus, filed complaint directing the OPs to deliver the possession of the flat with compensation of Rs15 lac for damages or to refund the deposited amount of complainant with interest @ 12% p.a. from the date of deposit of the amount till payment. The complainant further prayed for alternate relief of compensation, as contemplated in clause 10 of the buyers agreement.

4.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently This fact was admitted by OPs that complainant applied for flat no. T-10-301 in Tower no. T-10 with OPs of 1580 sq. ft in Parsvnath Castle Rajpura project. This fact was also admitted that complainant booked flat on 11.04.2008 for basic cost of Rs.19,67,000/- under Construction Linked Payment Plan on 11.04.2008 and paid Rs.75,000/- to OPs. Buyers agreement was executed between the parties on 03.05.2008 in this regard. The OPs changed the allotment of the flat from T-10-301 to T-11-301 in the same project due to certain changes in the original lay out plan, which was duly intimated to the complainant. Since the complainant opted for construction linked payment plan, demand notice was sent to him as and when payment of installment became due. The construction of ground floor, roof slab had commenced in October 2010. The complainant enquired from OPs, vide e-mail dated 27.05.2010 regarding status of the project, which was duly replied, vide letter dated 28.05.2010. It was averred by OPs that construction of the flat was supposed to be completed by April 2014. The construction work was started in a phased manner in the said project. The complaint has been filed without cause of action by complainant against OPs. The complainant raised dispute of civil nature in this case. Since the liability of OPs is fixed in Clause 10 ( c) of flat buyers agreement dated 03.05.2008, hence complaint is not competent. On merits, OPs averred that physical possession of the flat would be given to complainant by OPs, as soon as construction was complete and on payment of outstanding amounts.  The interest of the complainant has been taken care of by Clause 10 (c) of the flats buyers agreement. As per Clause 10 (a) of flat buyers agreement, the construction was to be completed in 36 months, extendable by six months from the date of commencement of construction on receipt of all requisite approvals. The delay took place due to global recession in economy all over the world. The construction up to first floor roof slab has been completed and construction was under way. The OPs controverted  the fact of entitlement of the complainant on above referred grounds and prayed for dismissal of the complaint.

5.      The complainant tendered in evidence, his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-12. As against it; OPs tendered in evidence affidavit of Madan Dogra working as Deputy General Manager (CRM) with Parsvnath Developers Limited Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-8.On conclusion of evidence and arguments, the District Forum Patiala, accepted the complaint of the complainant by virtue of order dated 03.08.2015. Dissatisfied with the order of the District Forum Patiala dated 03.08.2015, two separate appeals have been preferred against the same. Opposite party now appellant preferred First Appeal no. 1008 of 2015 challenging the order of District Forum and complainant now appellant preferred First Appeal no. 1012 of 2015 as appellant for enhancement of compensation.

6.      We have heard learned Counsel for the parties at considerable length and have also examined the record of the case. 

7.      The first contention, which has been raised before us, in the above referred two appeals, is whether the complaint is competent, when there is a specific provision for payment of compensation of delayed payment in buyers agreement between the parties Clause 10 (c) of buyers agreement Ex.OP-4 dated 03.05.2008, which is reproduced as under :-

          "10 (c) In case of delay in construction of the flat beyond the   period as stipulated subject to force majeure and other         circumstances as aforesaid under sub clause (a) above with a grace period of six months, the Developers shall pay to the     buyer compensation @ Rs.53.80 per sq. meter or @ Rs.5/- per         sq. ft of the super area of the flat per month for the period of          delay. Likewise, if the buyer fails to settle the final account and         to take possession of the flat within 30 days from the date of           issue of the final call notice/offer to hand over possession by the Developers, the buyer shall be liable to pay to the           developers holding charges @ Rs.53,80 per sq. meter or @          Rs.5/- per sq. ft of the super area of the flat per month expiry of        30 days notice."

The forceful submission of counsel for OPs is that when specific clause 10 (c) exists in buyers agreement for payment of compensation, complaint filed by complainant is not competent. We have dwelt on this matter at length and conclude that this matter has already been settled by National Commission in "Puneet Malhota versus Parsvnath Developers Ltd" reported in 2015(2) CPJ 18. National Commission examined this point in para no.9 of the cited judgment holding that the said clause applies only in a case, where construction of the flat is delayed, but despite delay, the buyer accepts possession of the said flat from the seller and consequently, accounts have to be settled between the parties. At that stage, the buyer would pay the agreed holding charges to the seller, who will pay the agreed compensation on account of delaying the construction of the flat. The aforesaid clause, which is 10 ( c ) of buyers agreement in this case would not apply to case, where the buyer, on account of delay on the part of the seller in the construction of the flat, is no more interested in the flat subject matter of the agreement and wants to take refund of the amount, which he had paid to the seller. Now, we have examined this point, whether complainant has been ready to take the flat from OPs with such a long delay in this case or not. The version of the complainant is that OPs have not yet started the construction of the flat. The onus stood shifted upon OPs to prove that they have started construction and completed the same up to a specific stage. We have examined the documents on the record. There is no cogent evidence adduced by the OPs to prove the construction of the flat up to a specific level. The OPs have not produced affidavit of any mason, labourer or contractor on the record to prove this fact that they raised the construction up to a particular level. Even from glance of some photographs on the record, which are not exhibited, it is clear that only some pillars have been raised in it on the ground floor only. Consequently, we return this finding that OPs have not yet completed the construction in this case at all. Ex.OP-4 buyers agreement was executed on 03.05.2008 and there is three years period with extended three months period for completion of construction, which would come to an end in the year 2011. Now, it is year 2017 and no construction has been completed by the OPs in this case. As held by National Commission in "Puneet Malhota versus Parsvnath Developers Ltd" (supra) the compensation clause in the buyers agreement would not relieve the OPs of their solemn duty to perform their part of the agreement. The District Forum have not appreciated this matter in proper perspective and some how overlooked to follow law laid down by National Commission in Puneet Malhota 's case (supra). The total price of the flat was Rs.18,17,000/- , as per buyers agreement Ex.OP-4.

8.      Additionally, the OPs even changed the flat without any consent of the complainant in this case. The complainant booked flat no. T-10-301 on third floor in Parsvnath Caste Rajpura. The OPs unilaterally changed it to flat no. T-11-301 in the same project due to change in the lay out plan of the said project to the disadvantage of the complainant. The counsel for OPs relied upon Clause 8 (b) of buyers agreement Ex.OP-4 in this regard. This fact has not been established by the OPs that developers were not in a position to give the possession of that particular flat to the complainant within stipulated period. There are no circumstances proved on record by OPs justifying unilaterally the allotment of another flat without consent of the complainant. The complainant has pleaded and stated in his version that this fact was to his utter disadvantage, which was unilaterally allotted to him by OPs without consulting him.. This unilateral allotment of another flat was not acceptable to complainant and this allotment of some other flat has proved the deficiency in service on the part of OPs, because OPs failed to prove the circumstances justifying the allotment of this alternate flat unilaterally to the complainant to his disadvantage. Taking into consideration the entire conspectus of evidence on the record, hearing respectful submissions of counsel for the parties, we conclude that OPs wrongly misutilized the money deposited by the complainant without completing the construction of the flat for some other purpose and due this reason the construction was not completed in the stipulated period. There is no question of delivery of possession thereof to complainant nor it is likely to be delivered in the near future, because above photographs placed on the record only show some pillars on the ground floor and nothing beyond that. The global recession as projected by OPs as justifiable ground for delay is not acceptable to us. Our own State Commission has held in "Vaneet Sood versus Unitech Limited and others", reported in 2017 (1) CLT Page 162-163 that there may be worldwide recession and crunch in the real estate business, but the OPs were bound to fulfill their commitment under the agreement for developing the project and delivering the possession of the flat to the complainant within the agreed time. This point has also been outright rejected by National Commission in Swaran Talwar versus M/s Unitech Limited in Consumer Case No. 347 of 2014, decided on 14.08.2015. The National Commission has held in this authority that when there is no new legislation changing any existing rules and regulations or delaying the construction of the complex nor there is any lock-out or strike by the labour, nor there is any civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of the project within the time stipulated in the buyers agreement, nor there is any evidence that OPs that despite best efforts, it could not get labourers to complete the construction within stipulated time, it cannot be held to be a justifiable cause for delayed construct and delivery of possession. The above invented force majeure circumstances would not relieve the OPs from their solemn duties to complete the construction within stipulated time. We find no such evidence on the part of the OPs on the record to substantiate all the circumstances justifying the delay in the construction of the project. During the arguments before us, the counsel for complainant forcefully stressed that no construction has been significantly started by the OPs in this case and as such, the complainant stood deprived of his legal right of residence in the flat to be allotted to him within time. We find force in the submission of counsel for complainant on this point, when the significant construction has not yet come up and hence it is taken to be a case of non-start of construction work by OPs only justifying the refund of the deposited amount by complainant with OPs in this case till now. The submission of counsel for complainant for awarding separate compensation, other than in the shape of interest, cannot be accepted in view of law laid down by Hon'ble Supreme Court in Chief Administrator HUDA & another versus Shakuntla Devi, reported in 2017(1) CLT Page 1, wherein Apex Court has held that award of interest would have been sufficient to compensate the complainant for loss suffered by him due to delay. The point of escalation in the cost of construction would be covered in the interest to be awarded by the Forum. The counsel for complainant cited law laid down by National Commission in  Puneet Malhota versus Parsvnath Developers Ltd" (supra), wherein National Commission has held that builder was duty bound to complete the construction in time, irrespective of recession in the market, reduction in the bookings and the alleged default on the part of some of the allottees in not making the payment in time. As per agreement, the complainant was required to pay interest @ 24% per annum  in the event of delay on his part in making the payment to OPs. Logically, if the seller is charging interest from the buyer @ 24% per annum, it should have no hesitation in paying interest at the same rate to him in the event of its failure to complete the construction within time frame agreed between the parties. In view of law laid down by Apex Court in Ghaziabad Development Authority versus Chander Bhan Singh, reported in 2004(3) CPJ 20 (S.C) awarding 18%  rate of interest per annum over the deposited amount from the date of deposit till date of payment would be just and reasonable one in our view.

8.      Considering the facts and circumstances of the case and law laid down by Apex Court in Ghaziabad Development Authority versus Chander Bhan Singh (supra), we hold that the complainant is entitled to refund of the entire deposited amount along with interest @ 18% per annum from the date of deposit of the amount till date of actual payment from OPs. The Consumer Forums are competent  under the CP Act to remove injustice, which has been done to the party. The facts and circumstances of the case justify the award of interest @ 18% per annum over the deposited amount to be paid by OPs to complainant when no construction has been raised by OPs, despite lapse of many years rendering the very purport of the complainant fruitless.

9.      In view of above discussion, we accept First Appeal No. 1012 of 2015 filed by the complainant and modify the order of the District Forum and hereby order OPs to pay the entire deposited amount along with interest @ 18% per annum thereon from the date of deposit till actual payment to complainant. The amount of award of cost is affirmed in this appeal. As far as another First Appeal No. 1008 of 2015 filed by OPs is concerned, the same is ordered to be dismissed.

10.    In First Appeal No.1008 of 2015 appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be remitted by the registry to the respondent/complainant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount, if any, shall be paid to complainant by OP, now appellant, as per order of District Forum within 45 days from receipt of copy of this order. The OPs shall pay the amount as ordered to the complainant within 45 days from the receipt of certified copy of the order.

11.    Arguments in this appeal was heard on 10.04.2017 and the order was reserved. Now the order be communicated to the parties. 12.         The appeals could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                     (J. S. KLAR)

                                                     PRESIDING JUDICIAL MEMBER

 

 

                                                           (SURINDER PAL KAUR)

                                                                    MEMBER

                       

April 11,  2017                                                            

(ravi)