Haryana

Panchkula

CC/13/2015

ANURAG GOYAL& ANOTHER. - Complainant(s)

Versus

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

COMPLAINANT IN PERSON.

19 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                      

                                                             

Consumer Complaint No	:	13 of 2015
Date of Institution	:	15.01.2015
Date of Decision	:	19.05.2015

1.       Anurag Goyal w/o Sh.Ram Kumar Gupta

2.       Ram Kumar Gupta s/o Sh.Prem Chand

          Both R/o House No.319, GH-110, Sector-20, Panchkula.

 

                                                                                        ….Complainants

Versus

 

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

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

3.       Sh.Y.V.Arora, S.R.M. (CRM & Marketing), Parsavnath Developers Ltd., Parsavnath Pride Asia RGCTP, IT Park, Opposite Tech Mahindra office Chandigarh.

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

                                                                        ….Opposite Parties

 

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

 

Coram:                 Mr. Dharam Pal, President.

              Mrs. Anita Kapoor, Member.

 

For the Parties:     Complainants in person. 

                             Mr.Amardeep Sharma, Adv., for the Ops No.1, 2 and 4.

                             Op No.3 already ex-parte.

 

ORDER

(Dharam Pal, Presi­dent)

1. The complainants-Anurag Goyal and Ram Kumar Gupta have filed the present complaint against the Ops with the averments that they booked a flat No.T-4, 404 in the project of Ops i.e. Parsavnath Royal, Panchkula on the assurance of Ops that the possession would be delivered in December, 2011. After that, the complainants paid the installments to the Ops regularly but the possession of flat was not delivered in December, 2011 as the construction was not complete as per buyer agreement which was executed between the complainants and Op No.1. The complainant visited many times to the office of Op No.3 and requested for possession of flat but he did not give any satisfactory reply. The Ops No.2 and 3 issued a letter dated 01.07.2014 in which the complainants were threatened that their unit would be cancelled for not paying the amount of Rs.5,96,375.92 and also demanded a sum of Rs.9,04,129.61 as installment and interest but the Ops were not eligible for any payment as they did not follow the terms & conditions of the flat Buyer Agreement. The complainants submitted that in clause 10 (a) of the flat buyer agreement the line (*/ from the date of booking whichever is later) was typed after getting the signature of the complainants. The complainants issued legal notice to the Ops but the Ops did not reply for the same. After that, the Ops sent a demand notice to the complainants and under the compelled circumstances, they made a payment of Rs.4,00,000/- through cheque and a receipt was issued by the Ops on 05.08.2014. The complainants complied with their part of contract agreement and made the payment of Rs.42,66,104/- to the Ops but the Ops did not hand over the possession of flat to the complainants. Thereafter, the complainants sent legal notice-cum-reminder to the Ops but a vague reply was given by the GM (CRM) of the Ops. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops No.1, 2 and 4 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the Flat Buyer Agreement imposed rights and liabilities both on the complainants and Ops which based on terms and conditions agreed and 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 Blick in which the Flat is located or the date of booking whichever is later, 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 @ Td.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, the 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 of construction should be 36 months from the date of commencement of construction of the particular block in which the flat was 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 commenced construction of the block in which the flat was located and was aiming to complete the construction in as per the projected schedule, however, global recession which had hit the market/economy in the year 2009 which affected the real estate sector of India to a large extent. It is submitted that despite the difficulties, the Ops continued the construction of the flat and super structure of tower in which the flat of complainants was located, has been completed. It is submitted that non-completion of the project was beyond the control of the Ops and that fact was in the knowledge of the complainants. It is submitted that the complainants approached the Ops for booking of flat on their own will. It is denied that the Ops ever promised to deliver the possession of flat in December, 2011. It is denied that the Ops have committed a breach of the terms and conditions of Flat Buyer Agreement. It is submitted that the delay in completion of the project was not intentional and was due to global recessions which effected still continuing. It is submitted that refund of the amount deposited under the Flat Buyer Agreement could only be sought by cancelling the project and not in any other manner. It is submitted that the complainants were assured that in all circumstances, the interest of the complainants because of delay in handing over the possession of the flat should be taken care in accordance with clause 10(c) of the flat buyer agreement, at the time of delivery of possession of flat. It is denied that the complainants were threatened. It is submitted that the demand notice was sent to the complainants in terms of payment plan adopted by them and the payment is still due on the part of the complainants. It is denied that the contents in clause 10(a) of the flat buyer agreement i.e. “from the date of booking whichever is later” have been typed after getting the signature of complainants. It is submitted that the Flat Buyer Agreement was signed on 14.02.2011 and now the complainants are raising the issue. It is submitted that the Ops duly replied the legal notice vide reply dated 03.10.2014. Thus, there is no deficiency in service on the part of OPs No.1, 2 and 4 and prayed for dismissal of the complaint with costs.

3. Notice was issued to the Op No.3 through registered post but none has appeared on behalf of Op No.3. It is deemed to be served and the Op No.3 is proceeded against ex-parte vide order dated 26.02.2015.
4. The complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-14 and closed the evidence. On the other hand, counsel for the Ops No.1, 2 and 4 has tendered into evidence by way of affidavit Annexure RW1/A alongwith documents Annexure RW1/1 to RW1/18 and closed the evidence.
5. We have heard the complainant appearing in person and learned counsel for the Ops No.1, 2 & 4 and have gone through the case file carefully and minutely.
6. It is admitted case of the Ops that the complainant paid the booking amount of Rs.8,90,095/- towards basic price on 20.12.2010 at the time of booking. The payment amount was to be paid as per down payment plan (with 8% rebate) attached with the Buyer Agreement which was executed on 14.02.2011 (Anneuxre C-2) with regard to the flat No.T-4, 404 approximately 1780 sq. ft. in the project by the name and style of Parsavnath Developers. As per the case of the complainant, they paid Rs.42,66,014/- more than 73% of the total cost. Though the Ops have accepted that the demand notice and reminders dated 15.03.2011, 02.12.2011, 02.03.2012, 01.11.2013, 20.11.2013, 09.12.2013, 07.01.2014, 10.02.2014, 10.03.2014, 09.09.2014, 20.06.2014, 01.07.2014 and 11.07.2014 were sent to the complainants in terms of the payment plan adopted by them and the payment is still due. The Ops have not produced even single letter/document which could show that the construction has been completed to the level of the installment/payable demanded by the Ops in support of their demand.
7. The copy of the agreement to sell (Annexure C-2) shows that as per clause 10 (a), the company undertook to hand over the possession of the said flat within a period of 36 month of the commencement of construction or the date of booking whichever is later, of the particular block in which flat is located with gross period of 6 months on receipt of the sanction of the building plans/revised building plans and approval of all concerned authority including the Fire Service Department, Civil Aviation Department, Traffic Department, Pollution Control Department as may be required for commencing and carrying on construction subject to force measure, restrain or restriction from any court/authority, none availability of building material, dispute with constructor/work force etc. and circumstances beyond the control of the developers subject to timely payment by the flat buyers in the scheme. However, strangely enough the Ops have not mentioned any specific date from which the construction has to be started. Thus as on date i.e. 14.11.2011 the Buyer Agreement was executed, the Ops themselves are not sure to by which date they will be able to start the construction of the flat and to hand over the possession. The Ops should have given the firm date of start of construction and of handing over the possession of flat at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the complainant, the Ops induced them to part with their hard earned money which amounts to unfair trade practice. From the above it is clear that it is on their sweet will to start the construction according to their convenience. The complainant contended that the Ops add the words “*/ Date of booking whichever is later” after the execution of Buyer Agreement at point ‘A’ of clause 10 (a) (Annexure C-2). The Ops have not placed on file any documents to prove that the abovesaid words were added before the execution of Buyer Agreement. The abovesaid addition has no signature of any of the party, which established that the addition was made by the Ops after the execution of Buyer Agreement. The complainant further contended that on their visit to the site they found no construction activity going on. The complainants sent a legal notice to the Ops on 15.09.2014 asking for not to cancel unit as the complainants had already paid more than 73% amount of the total sale consideration, not to claim further amount prior to the completion of the flat, to pay 24% interest on payment made by the complainants till the possession of the flat is handed over and convey the exact date on which the possession of the flat will be handed over. The ops replied the legal notice on 03.10.2014 stating that the construction work was going on at satisfactory speed in the year 2011 but it is stated that due to recession in the Real Estate Sector all over India during the last few years as resulted in the circumstances which are beyond the control of the company leading to the delay in possession.
8. During the course of arguments, the counsel for the Ops conceded that in flat buyers agreement, the date of start of construction of flat of which the possession was to be delivered to the complainants was not fixed. He submitted that as per clause 10 (a) of the flat buyer agreement the time period of construction should be 36 months from the date of commencement of construction of a particular block in which the flat was located with an additional grace pierod of 6 months. He further stated that after approval of building plan which required for commencing construction, the Ops commenced construction of the block in which the flat was located and was aiming to complete the construction as per project schedule. However, global recession which has hit the market economy in the year 2009 which effect the Real Estate Sector of India to a large extent. He further submitted that despite the facts the Ops continued the construction of flat and super structure of tower in which the flat of the complainant was located has been completed. He further submitted that non-completion of the project was beyond control of the Ops.
9. We carefully considered the above arguments but we are not impressed with the same. From the above, it is clear that the Ops have not mentioned the final date of construction to be started and date on which the possession was to be handed over to the complainants. It is also clear from the above that at the time of booking of flat in question the Ops have not the approval of building plan and other approvals required for commencing construction with them. The Ops have stated that the global recession hit the market economy in the year 2009 which affect the real estate sector of India to a large extent. It is not understood if there was global recession in the market on the date of booking, why the Ops have booked the flat of the complainants on 20.12.2010. The Ops have failed to produce any document to prove that the super structure of tower in which the flat of the complainants was located has been completed. The counsel for the Ops has relied upon the clause 10 (a) and 10 (c) of the Flat Buyer Agreement dated 14.02.2011 which reads 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 Blick in which the Flat is located or the date of booking whichever is later, 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 @ Td.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 on expiry of 30 days notice.”

10. The sole defence taken by the Ops is that it was a global recession that hit the India economy and for this reason they could not go ahead with the construction. He has referred to it as force measure but the Ops have not produced any data to show that there was a global recession in the Indian market and if so to what extent. In such situation, it cannot be held that the Ops were in any case affect any recession in the global economy during the relevant period.
11. As regard to above the construction of the flat has not been completed in after a period of 4½ years. The complainants have admittedly deposited a sum of Rs.42,66,104/- with the Ops. The Ops have failed to show if the amount received from the complainants had been utilized for construction of flat. It is clear case of unfair trade practice. We are, therefore, left with no option but to held that the Ops have been highly unreasonable in not handing over the possession of the flat to the complainant within a reasonable period of time.
12. Now the question that survives for determination is as to what amount the complainants are entitled to as per their prayer clause. Subsequently, in the agreement (Annexure C-2) there is specific mention of the payment of amount to the allottee in case the offer of possession is not made by due date clause 10 (c) of the agreement to sell reads as under:-

“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 @ Td.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 on expiry of 30 days notice.”

13. Before we conclude, we must record our disapproval of the manner of conduct exhibited by the OPs in the matter of causing unjustified delay in delivering the possession of the flat to the complainant and further also in the matter of making pleadings based upon apparently indefensible foundational premise. Though the adjudication of this complaint is on the merits of its own, it is a matter of public knowledge that instances are available aplenty wherein the builders have been proved to have taken the flat applicants for a ride, on one pretext or the other. There are reports in the print-media from time to time that such like aberrant builders are getting burdened with damages etc. at the hands of the consumer dispensation. It is time the builders community realizes that any delay in delivery of a habitable flat causes emotional as also economic trauma to the persons who has booked it. There could be no worse exemplification of a un-business like act than the OPs having gone in for booking even before the necessary approvals for the project etc. had been obtained.
14. It has been held by the Hon’ble National Commission in Sahil Indian Commercial Corporation Ltd. vs. C.Madhu Babu- II (2011) CPJ 3 (10 C) that Consumer Fora have to consider relief in the light of the written agreement and it is not open to them to add or subtract any condition or words. In the instant case, there is a specific clause that in case the offer of possession by company is not made by due date, due to any reason not beyond the control of the company then the company shall liable to pay to the allottee as compensation Rs.5/- per sq. ft. of the super area of the flat per month for the period of delay till the date of possession. In view of the specific clause we feel that the complainant is not entitled to any interest on the amount of Rs.42,66,104/- paid by them. However, the complainant is certainly entitled to get the payment to be calculated @ of Rs.5 per sq. ft. per month of the super area of the flat till the date of offer of possession. Out of the said amount the Ops shall pay the due amount till the date of this order to the complainants and the remaining amount shall be adjusted/paid at the time of full and final payment. We feel that the complainant is also entitled to compensate for resultant mental and physical harassment and cost of litigation.
15. For the reasons recorded above, we find merit in the complaint and the same is partly allowed. The Ops are directed as under:-

(i)      To make the payment of an amount of Rs.5/- per sq. ft. per month of the super area to the complainants from the date of deposit till the date of handing over the possession. However, the total due amount under this head calculated till the date of this order shall be paid by the Ops to the complainants within a period of one month of getting the certified copy of this order and the remaining amount shall be adjusted/paid.

(ii)     To make payment of an amount of Rs.1,00,000/- to the complainants as compensation for harassment and deficiency in service.

(iii)    To make the payment of Rs.11,000/- for litigation expenses.

16. This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.2 above with the interest @ 12% per annum form the date of filing of the complaint till realization. Besides complying with the directions at serial No.1 and 3 above. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced

19.05.2015           ANITA KAPOOR                             DHARAM PAL

                             MEMBER                                PRESIDENT

 

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

 

                                          

                                            

                                                DHARAM PAL                                                                                         PRESIDENT