DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.163/2022

Mukund Lal Chug (Senior Citizen)

House No.6, OT Sarai

Malviya Nagar,

Hauz Khas, South

New Delhi-110017

….Complainant

Versus

M/S Parkar Builder Pvt Ltd,

410, D-Mall,  

Netaji Subhash Place,

Pritam Pura,

New Delhi-110034

Also at;

M/s Parkar Builder Pvt Ltd,

Parkar Mall,

Sector 62,

Kundli, Sonipat, Haryana

        ….Opposite Party

 Date of Institution    : 08.06.2022      

 Date of Order            : 14.08.2024       

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Present: Adv. Devinder Chowdhury along with complainant.

               Adv. Yogita for OP.

ORDER

Member: Ms. Kiran Kaushal

1.       Facts of the case as pleaded by the complainant are that the complainant was induced by M/s Parker Builders Pvt Ltd (OP) to purchase a Shop/commercial unit having an area of 800 sq. ft on the atrium  floor and Stall no.10 of the proposed  ‘Parker Mall’.

2.       It is stated that the complainant was assured that possession of the said Shop/commercial unit would be handed over to the complainant within a period of 24 months.  Complainant booked the unit by paying Rs.5,50,000/- and receipt dated 01.02.2007 was issued to this effect. Same is annexed as Annexure P-3. Complainant also booked a second unit by paying Rs.1,25,000/- towards booking of a Stall on second floor. Copy of the receipt dated 19.03.2007 is annexed as Annexure P-5.

3.       It is stated that after the amount paid with regard to both the units was credited to OP’s Bank, OP issued an allotment letter of both the units separately. Copy of the same is annexed as Annexure P-6. It is stated the complainant received only Builder Buyer Agreement of Unit A-25 having an area of 800 sq. feet @7000/- per sq. feet. It is alleged that OP did not provide any Builder Buyer Agreement for Stall No. 10 of the proposed Parker Mall. Complainant made another payment of Rs.4,25,000/- towards an installment of Shop and receipt dated 10.07.2007 of the same is annexed as Annexure P-7. Another payment of Rs.5,00,000/- was paid by the complainant to OP on 26.11.2007. It is stated that the second unit/stall/shop was for Rs.28,00,000/- and for this unit complainant had paid Rs.9,80,000/-.  

4.       Initially rate per sq ft of the unit was stated to be Rs.7,000/- but OP offered a discount or rebate on the said price only if the amount was paid in cash by the complainant. However, in the Builder Buyer Agreement dated 15.09.2008, the unit price of Shop No. A-25 is stated to be Rs.4,550/- per sq. feet and the total sale consideration of the said unit as Rs.36,40,000/-. Complainant had paid Rs.15,50,000/- to OP and the balance Rs.20,90,000/- was to be paid by the complainant vide four instalments of Rs 4,64,4444/- and Rs.2,32,224/- at the time of possession. Copy of the same is annexed as Annexure P-1. As per the  BBA possession of the unit was to be handed over by the buyer within 24 months from the date of sanction of the building plan with a grace period of 06 months for force majeure and reasons beyond the control of the seller.

5.       Complainant  for unit no.25 on the attrium floor had made payments as under-

6.       For stall no. 10 on the second floor complainant had made the following payments.

7.       It is next stated that OP vide letter dated 01.02.2011 sent photographs of the construction activity of the project but from those photographs, it was clear that the project was not complete and it might take another 3 to 4 years to be completed. The progress of the work was very slow as OP was to give possession in the year 2009 whereas till 2011 even structure of the building had not completed. Looking at the slow progress of the project, complainant wrote numerous letters to OP for refund of money stating his problems/grievances but to no avail.     

8.       It is stated that OP was not having any building/sanction plan of the site in the year 2006-2007 despite that OP collected 35% of the money which itself is deception and deficiency. The complainant had paid total amount of Rs.38,90,000/- for both the units by the year 2008. As the complainant was suffering immensely due to the slow progress of the units in question, complainant decided to withdraw the entire amount with interest @24% p.a.

9.       Alleging deficiency of service and unfair trade practice, complainant prays for direction to OP to refund sum of Rs.38,90,000/- with interest @ 24% p.a and suitable amount towards compensation for harassment, mental agony and torture; to pay the cost of litigation.

10.     As OP had failed to file reply within the stipulated period therefore right to file reply of OP was closed on 25.11.2022. Evidence on behalf of the complainant has been filed. Written submissions are filed on behalf of both the parties. Submissions made by the Learned counsels are heard. Material placed on record is perused.

11.     It is complainant’s case that upon the assurance given by OP that the subject unit/shop would be delivered within 24 months ,he had booked a shop in ‘Parker Mall’ for his personal use and to earn his livelihood, there is no evidence on record to draw any conclusion otherwise.  It is noted that OP vide letters dated 29.09.2007 and 05.10.2007 had affirmed that OP had received all government approvals and the work at site was in full swing which was not found to be true. As  is evident from the photographs appended with the complaint  the project was partially constructed even in the year 2011.

12.     It is not in dispute that parties had entered into a Builder Buyer Agreement wherein the sale price of Unit no.25, comprising of 800 sq.ft on the attrium  floor of the Parker Mall is stated to be  Rs.36,40,000/-. It is seen that complainant had received two provisional allotment letters from OP, one with regard to Shop no.25 measuring 800 sq.ft. on the attrium floor and the second with regard to Stall no.10 on the second floor of Parker Mall. It is also noticed that the complainant in the year 2013 had communicated to OP to adjust the payment of Food Court Stall No.10 to Attrium A-25 Shop.

13.     ‘Possession’ of the said unit was to be handed over as per the terms agreed upon, relevant portion of the agreement is reproduced as under -

‘That, the possession of the said unit shall be handed over to the buyer within months from the date of sanction of the building plan with a grace period of six months subject, however, to force majeure and reasons beyond the control of the seller shall include any notice/order/restriction imposed by any court/HUDA/Municipal Authority or any Government or Semi Government Department’

Clause d) In case the company is not in a position to make the offer of provisional allotment of a residential flat/commercial shop within period of 6 months the date of my/our application for any reason whatsoever, we shall have only the right to withdraw the application money by asking for refund by way of 30 days prior notice in writing along with interest calculated @12% per annum from the date of payment of application money.”

14.     It is noticed that the  Complainant vide letter dated 28.05.2013 sought refund of Rs.9,80,000/- in respect of Shop no. 10. Complainant after having paid Rs.38,90,000/- by 2008 sought refund of both the units vide letter dated 22.07.2019 as the said units which were to be delivered within 24 months from the date of sanction of building plan was not offered within the stipulated period and till the letter for refund.

15.     OP’s right to file reply was closed and no evidence was adduced by OP averments made in the complaint and evidence filed by the complainant has remained uncontroverted and unrebutted.

16.     OPs orally  contend that OP had completed the project and had got the Occupation Certificate (OC) on 06.09.2013 and OPs vide various letters had asked the complainant to make balance payment, has not been evidenced . Only one demand of payment raised by OP on 07.02.2011 has been placed on record by the complainant wherein OP had demanded Rs.13,93,332/- towards balance payment from the complainant. As seen from the photographs   provided by the OP and have been placed on record by the complainant, since the pace of construction by OP was not as promised, therefore, the complainant  had lost faith in OP.

 17.    Complainant with his evidence has appended a notice issued by OP on 31.10.2020 stating that OP had received the OC in 2013 and since then OP was holding the unit of the complainant and the likes. OP asked the complainant to take possession and get ownership of the unit through registered conveyance deed by 30.11.2020. No cogent evidence has been placed on record to show as to when was the complainant offered possession of his unit and since when was the op holding the unit of the complainant.

18.     There is no denying the fact that the complainant did not receive the units in question within the time promised/assured by the OP. It is noticed that complainant had paid substantial amount of money within three years from the date of signing of the Builder Buyer Agreement. The fact that there has been delay in completing the construction and making offer of possession cannot be overlooked and to our mind is deficiency of service on part of OP.

19.     In light of the discussion above, this commission is of the opinion that OP has been deficient in service for not providing the unit within stipulated time and has indulged in unfair trade practice by not refunding the amount paid by the complainant. Thus, OP is directed to refund Rs.38,90,000/- with interest @8% p.a  from the  dates of payments made within 03 months from the date of order, failing which OP shall pay the above stated amount @10 % p.a till realization.

20. Additionally OP is directed to pay Rs 25,000/- towards compensation for harassment and cost of litigation.  

Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.