Haryana

Panchkula

CC/108/2015

JITESH KUMAR MEHTANI. - Complainant(s)

Versus

M/S PARSAVNATH DEVELOPERS LTD - Opp.Party(s)

ANURAG GOYAL.

24 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                            

Consumer Complaint No	:	108 of 2015
Date of Institution	:	11.06.2015
Date of Decision	:	24.09.2015

1.       Jitesh Kumar Mehtani

2.       Nitin Mehtani

Both sons of Sh. Subash Chander, resident of S. No. 585, Sector-11, Panchkula.

                                                                                        ….Complainants

Versus

 

1.       M/s Parsavnath Developers Ltd., 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its Managing Director.

2.       Jitender Kumar Sharma, Assistant Manager (CRM), M/s Parsavnath Developers Ltd., 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its managing Director.

3.       M/s Parsavnath Developers Ltd., through its Local Manager, Parsavnath Royal Panchkula, Sector-20, Part-II, Panchkula.

                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P. Attri, Member.

 

For the Parties:     Ms. Anurag Goyal, Advocate for the complainant.

Mr. Amardeep Sharma, Advocate for the Ops.

 

ORDER

(Anita Kapoor, Member)

1. Initially, the complainants has filed the complaint before the Hon’ble State Commission complaint no. 20 of 2015 which has been dismissed as withdrawn with liberty to file the same before the appropriate District Consumer Disputes Redressal Forum vide order dated 20.03.2015.
2. The complainants Jitesh Kumar Mehtani and Nitin Mehtani have filed the present complaint against the Ops with the averments that they and their parents booked two flats; one was allotted in the name of the complainants i.e. Flat No. 004 (correct as G 04) in Tower T1 and other flat was booked in the name of complainant’s parents i.e. flat No. 302 in Tower T 8 after going through the advertisement of the Ops and deposited booking amount of Rs. 8,90,095/- on 18.10.2010 on the assurance of Ops that the possession would be delivered in December, 2011. The flat buyer agreement of two flats was executed between the complainants and OP no. 1 on 08.02.2011. After that, the complainants and their parents paid the installments to the Ops regularly but the possession of flats were not delivered in October, 2011 as the construction was not completed. The complainant visited many times to the office of Op No.3 and requested for possession of flats but OP no. 3 did not give any satisfactory reply. The complainants had paid about Rs. 2,00,000/- to the Ops for T1-004 as installments and their parents also paid about Rs. 4,40,000/- for T8-302 to the Ops as installments but no possession of the flats has been handed over to the complainant or their parents. Despite paying the payment of Rs. 44,00,000/- for construction work of the Tower T-8 and Rs. 20,00,000/- for Tower T-1, the Ops did not complete the construction work. The complainants visited the site for allotment of the flats but the Ops gave them assurance that construction work would be completed & the possession would be delivered soon and the complainants were asked to stop the payment of installments as the construction work was held up.  Thereafter, the Ops demanded the payment of Rs. 29,81,877.56/- through demand notice dated 10.01.2015 for which the complainant no. 1 sent  reply  & reminder and requested to settle the matter but all in vain.  Thereafter the Ops cancelled the allotment of flat no. 004 of Tower No. 1 vide letter dated 28.1.2015 and forfeited the amount deposited by the complainant.  On 10.02.2015, the father of the complainant visited the site and found that the slabs of 8^th floor were laid by the Ops & there was no external development in the project. The father of the complainant requested the Ops to withdraw the letter dated 28.1.2015 but to no avail. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
3. The Ops appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the flat have been booked by the parents of the complainants so the complainants are not the consumer of the opposite parties with respect to said flat bearing no. 302 in tower T-8.  It is submitted that flat buyer agreement imposed corresponding rights and liabilities both on the complainants and the opposite parties based on the terms and conditions which executed between the parties. The relevant clause of Flat Buyer Agreement is as under:-

“Clause 10 (a) - Construction of the flat is likely to be completed within a period of thirty six (36) months, of commencement of construction of the particular Block in which the Flat is located with a grace period of six (6) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt, Civil aviation Deptt, Traffic Dept, Pollution Control Deptt, as may be required for commencing and carrying on construction. The construction period shall be subject to force majeure, restrains or restrictions from any courts/authorities, non availability of building materials, disputes with contractors/work force etc and circumstances beyond the control of the Developer and subject to timely payments of the Flat Buyers. No claim by way of damages/compensation shall lie against the Developer in case of delay in handing over possession on account of any such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Tower shall be treated as the date of completion of the Flat for the purpose of this clause/agreement.

Clause 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, the Developer shall pay the Buyer compensation @ Rs.53.80 per sq. Meter @ Rs. 5 per sq. ft of the super area of the Flat per month for the period of delay. Likewise if the Buyer ..”

It is submitted that in Flat Buyer Agreement, if payment is not made within the period stipulated or the buyer commits breach of any of the terms and conditions of the agreement, the agreement should be liable to be cancelled and the earnest money being 15% of the basic price would be forfeited & the balance if any would be refunded without interest.  It is submitted that the booking of the complainant’s flat had been cancelled due to the payment was not made within time.  It is submitted that date of final construction of the flat of which the possession was to be delivered to the complainants, was not fixed.  It is submitted that as per Clause 10 (a) of the Flat Buyer Agreement, the time period for construction should be 36 months from the date of commencement of construction of the particular block in which the flat is located with an additional grace period of six months.  It is submitted that after approval of building plan and other approvals required for commencing construction, the Ops had commenced construction of flats in November, 2010 and was aiming to complete the construction as per the projected schedule.  It is submitted that due to global recession which had hit the market/economy in the year, 2009 and affected the real estate sector of India to a large extent.  It is submitted that the opposite parties despite all difficulties continued construction of the flat and non-completion of the project was beyond the control of the opposite parties which was also in the knowledge of the complainants.  It is submitted that it was the complainants who did not comply with the terms of the flat buyer agreement.  It is submitted that the Ops have always assured the complainants that they would be compensated at the time of delivery of possession in accordance with Clause 10 (c) of the Flat Buyer Agreement.  It is denied that the Ops ever promised to deliver the possession of flat in October, 2011.  It is submitted that the Flat Buyer Agreement was executed on 8.2.2011. It is denied that the opposite parties had assured that the payments should only be demanded when the construction would be completed.  It is submitted that the cancellation of the allotment in favour of the complainants was due to persistent default on the part of the complainants.  It is submitted that the Ops had cancelled the allotment vide letter dated 28.1.2015 in accordance with the terms of the flat buyer agreement.  Thus, there is no deficiency in service on the part of OPs and prayed for dismissal of the complaint with costs.

4. The counsel for complainant has tendered into evidence by way of affidavit Annexure C A alongwith documents Annexure C 1 to C 9 and closed the evidence. On the other hand, counsel for the Ops has tendered into evidence by way of affidavit Annexure R A alongwith documents Annexure R 1 to R 4 and closed the evidence.
5. We have heard the learned counsel for the parties and have gone through the case file carefully and minutely.
6. We would like to notice, at the very outset, that the preliminary objection taken up by OPs qua the maintainability of this complaint vis a vis the flat booked by the parents of the complainants deserves to be upheld, for the simple reason that there is nothing even in the complaint itself that the parents of the complainants had authorized, by any permissible manner, the complainants to make a grievance about the deficiency of service on their behalf. The mere fact, we feel, that the complainants are progeny of the individuals in whose name the other flat had been booked would not furnish them the locus standi to maintain this complaint.
7. Except that finding in favour of the OPs, the complaint deserves to be allowed in favour of the complainants and against the OPs but of course, in respect of the flat which have been booked in their name. That flat shall hereinafter be referred as the flat.
8. That the construction of the flats has not yet been finished and that the OPs are not in a position to deliver the possession thereof, at least till date,  is evident from a perusal of the written statement itself wherein the OPs have averred that the “global recession which had hit the market/economy in the Year, 2009 and which extended in the subsequent years as well” has “affected the real estate sector of India to a large extent which obstructed the continued construction towards the completion of the Project because of the financial crunch experienced by the opposite parties due to down trend of the economy”. It is also the averment by the OPs that “the time period for construction shall be 36 months from the date of the commencement of construction of the particular blocks in which the flat is located with an additional grace period of six months”.In order to wriggle out of the rigor of the effect of non completion, the OPs averred that the terms and conditions of the impugned agreement itself provided that the time was not of the essence of the contract and that the aspect of delay would only be taken care ofat the time of delivery of possession whereat the complainants “will be duly compensated at the time of delivery of possession in accordance with Clause 10 (c) of the Flat Buyer Agreement. In an identical vein, it was averred by the OPs that time was of the essence of contract with regard to the payment of installments.
9. Though, as a general proposition, it is an acceptable phenomenon to bind the parties to the terms and conditions agreed upon between them and documented as well, it is equally the concern of law that even the documentation of terms and conditions of a contract must not validate a transaction which is, on the face of it, unconscionable. The present is indeed a case in which the OPs, who were in a dominant position vis à vis the complainants, were able to get some terms and conditions which are arbitrary and one-sided qua the latter. For example, the documentation provides that for purposes of payment of installments, the time would be essence of the contract and a default in the relevant behalf would entail cancellation of the contract itself. On the other hand, time is not recorded to be the essence of the contract in so far as the timing of delivery of possession of flats is concerned. In the absence of any compelling reasoning, such like terms and conditions are not acceptable on the touchstone of natural justice and fair-play because these provide a thoroughly dominating placement to a builder vis à vis and individual desirous of allotment of a flat. The validation of that dominating placement would not been order even otherwise when it is the own plea of OPs that the construction of the flats has not been completed even till date. Whether it is due to one reason or the other including the averred recession in the economic market cannot validly be urged to have the virtual ‘pound of flash’ from the flat seeker; while getting away with the responsibility of delivery of possession on a plea, benefit whereof is denied by the documentation to the allottee. To be fair, if a builder is to raise a plea of economic recession to justify delay in the delivery of possession, there is no justification on his part to deny the benefit of the phenomenon to the allottee. The methodology of grant of benefit of that phenomenon, in equal and non arbitrary measure, can be worked out independently. The acceptance of that fact, on a point of principal, cannot validly be denied.
10. There is no dispute that the documentation executed between the parties does provide indicated percentage of benefit shall be made available to the buyer but only at the time the final calculation comes about. That calculation would be “for the period of delay”. This restrictive clause, in the matter of calculating “the period of delay”, renders the apparently beneficial clause nugatory inasmuchas the documentation does not provide the fixture of an outer limit by which the construction would be contacted to conclude. The vagueness in the context renders that provision nugatory and not capable of definite implementation.
11. In the present case, the agreement is dated 08.02.2011; while the complainant No.1 had booked the flat on 14.10.2010 by making a payment of Rs.8,90,095/- (Rupees Eight Lacs Ninety Thousand and Ninety Five only). These averments have been extracted from the reply filed by the OPs in this complaint. The year in currency is 2015. It is, thus, apparent that there has been inordinate delay on the part of the OPs in concluding construction. The status of the buyers/complainants is that of those with eyes and mind full of anxiety to move into a flat which they can call to be their home but with no sign of completion thereof and further with no contracted manner of forcing early conclusion of the construction. They are faced with an ouster/cancellation order to the accompaniment of the forfeiture of a large part of the amount already paid by them. In the totality of circumstances of the case, the forum cannot validate the attitude of the OPs, the documented terms and conditions of the agreement notwithstanding.
12. It would be fair to say that if the OPs announce a time frame for delivery of possession even at this stage, they would be entitled to put the payment schedule into operation and the complainants would not be entitled to make a grudge of it, but only if there is a noticeable progress in the matter of construction which would be apparent to a naked eye.
13. In the light of foregoing discussion, we are of the considered view that the impugned notice dated 28.01.2015 deserves to be invalidated and the complainants compensated for the mental agony and harassment caused to them and we so hold accordingly.
14. While, thus, allowing this complaint, we would order as under

(a)     The OPs shall withdraw the notice dated 28.01.2015 within seven days from the receipt of a copy of this order. In case of a default, the notice would stand automatically quashed.

(b)          The complainants shall be entitled to a compensation of Rs.50,000/- for the mental agony and harassment caused to them.

(c)          The complainants shall be entitled to be litigation fee of Rs.10,000/-.

15. It will be open to the parties to mutually agree upon a date by or on which the possession of the flat (booked by the complainant No.1) would be delivered to him and there would also be entitled to agree upon the schedule of payment. In case that consensual arrangement comes about within one month of the delivery of a copy of this order to them, both the parties shall be duty bound to honour it. In the absence of any such mutually agreed arrangement, the OPs shall conclude construction and deliver possession of the Flat No.T1, G 04 to the complainants within a period of one year from the date of delivery of a copy of this order. In that eventuality, the entire outstanding dues shall be paid by the complainants to the builder at the time of delivery of possession without any interest. We are constrained to grant an order of this type for want of any proof, adduced by either party, about the present status of construction.  
16. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

24.09.2015           S.P. ATTRI        ANITA KAPOOR      DHARAM PAL

                            MEMBER         MEMBER                   PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                 

                                                         ANITA KAPOOR

                                                          MEMBER