Punjab

Patiala

CC/14/343

Chander Jain - Complainant(s)

Versus

M/s Parsavnath Devloper - Opp.Party(s)

Sh V P Shukla

03 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No.CC/14/343 of 15.12.2014

                                      Decided on:         3.8.2015

 

 

Chander Jain son of Sh.Krishan Avtar Jain resident of H.No.44-B, Kitchlu Nagar, Civil Lines, Ludhiana, now at c/o Jain sons,18,Guru Nirankari Colony, opposite Daffodils Beauty Parlour Bombay Tyre Road, Sunder Nagar, Ludhiana.

         

 

                                                                   …………...Complainant

                                      Versus

 

1.      M/s Parsvnath Developers Limited,6^th Floor, Arunachal Building,19,Barakhamba Road, New Delhi-100 001.

2.      M/s Parsvnath Developers Limited, Parsvnath Metro Tower, Near Shahdra Metro Station, Shahdra, Delhi-110 001.

 

                                                                   …………….Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

                                     

                                                                            

Present:

For the complainant:    Sh.V.P.Shukla, Advocate

For Op No.1:                Sh.P.S.Jaggi,Advocate          

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that he had booked a three bed room flat No.T-10-301 (3^rd floor) in tower No.T-10 having approximate area of 1580 sq. ft. situate in Parsvnath Castle Rajpura (Punjab) with the Ops for a consideration of Rs.18,17,000/- vide agreement dated 3.5.2008 under Plan-A(Down Payment Plan with 12% rebate). Out of the entire sale consideration, the complainant had deposited a sum of Rs.8,46,930.02 on different dates.
2. As per clause 10 of the agreement the construction of the flat had to be completed within a period of 36 months from the date of the commencement of the project. However, the Ops failed to raise the construction and thus the Ops committed the breach of the terms of the agreement and thus the Ops mis appropriated the amount deposited by the complainant with them. Therefore, the ops are liable to pay a sum of Rs.15lacs by way of compensation with interest @12% per annum thereon but the Ops failed to respond despite various letters written by the complainant. The complainant also got the Ops served with a legal notice dated 14.10.2014.
3. It is further averred by the complainant that the complainant failed to receive any notice from the Ops regarding the payment of the balance sale consideration and regarding the delivery of the possession of the flat and completing of the other formalities. Vide the legal notice got sent earlier on 24.3.2014 and vide legal notice dated 14.10.2014, the complainant requested the Ops either to hand over the possession of the flat with compensation or to refund the amount with interest.
4. It is also the plea taken up by the complainant that under Clause 10 (c) of the agreement it is provided that in case construction of the flat is delayed beyond the stipulated period subject to force majeure and other circumstances, the developer shall pay to the buyer the 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 and therefore, the complainant is entitled to get the compensation under the said criteria from the Op. Accordingly the complainant brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to pay him Rs.15lacs by way of compensation on account of deficiency in service with interest @12% per month from the date of the deposit and in the alternative the complainant be paid the compensation under Clause 10( c) @ 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.
5. The cognizance of the complaint was taken against Op no.1 who on appearance filed its written version. The Op has not denied the complainant having entered into the agreement with it having booked flat No.T-10-301 (3^rd floor) in Tower No.T-10 having approximate floor area of 1580 sq.ft dated 3.5.2008 but it is denied that the value of the flat was Rs.18,17,000/- and rather the cost of the flat is Rs.19,67,000/-.The flat was booked under the construction Linked Payment Plan. It is also the plea taken up by the Op that vide its letter dated 17.6.2009, the Op had 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, regarding which the complainant was duly intimated. It is also averred by the Op that the construction of the ground floor roof slab had commenced in October,2010.The possession of the flat shall be given to the complainant as soon as the construction is completed and on receipt of all the outstanding payments and fulfillment of all the formalities. It is also averred by the Op that the complainant had vide his e-mail dated 27.5.2010 enquired from the Op about the status of the project, which was duly replied vide it’s letter dated 28.5.2010.The copies of the e-mail dated 27.5.2010 and 28.5.2010 are Annexure G (colly).The construction of the flat was supposed to be completed by April,2014. It is also averred by the Op that in case of delay in delivering the possession of the flat, under clause 10 (c) of the agreement, there is a provision for making the payment @ Rs.5/- per sq.ft. per month after the lapse of 42 months and in that way the interest of the complainant has been taken care of and there is no question of any direction to be sought by the complainant against the Op. The Op has also detailed out clause 10(a) of the agreement which provides: “  Construction of the Flat is likely to be completed within a period of thirty six (36 ) months, extendable by six(6) months from the date of commencement of construction 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 Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints of restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developers and subject to timely payments by the Flat Buyers in the Scheme. No claim by way of damages/compensation shall lie against the Developers in case of delay in handing over submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement.”    
6. It is denied by the Op that it failed to raise the construction. The construction up to the first roof slab has been completed and further construction was going on. It is denied that the complainant got the Op served with  legal notices dated 24.3.2014 and 14.10.2014. The delay in construction has been attributed by the op to the global recession, which hit the economies world over including Indian economy and that the delay in the completion of the construction was beyond the control of the Op. It has also assured the complainant that he shall be compensated for the delay in accordance with Clause 10-c of the Flat Buyer Agreement. After controverting the other averments of the complaint going against the Op, it was prayed to dismiss the complaint.
7. In support of his complaint, the complainant produced in evidence Ex.CA his sworn affidavit alongwith documents Exs.C1 to C12 and his counsel closed the evidence.
8. On the other hand, on behalf of the Op, it’s counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Madan Dogra, Deputy General Manager (CRM) of Op no.2 alongwith the documents Ex.OP1 to OP8 and closed its evidence.
9. The Op filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
10. The complainant has asked for three pronged relief, firstly the payment of Rs.15lac by way of compensation on account of the failure on the part of the Op to deliver the possession of the plot, secondly the refund of the amount deposited by the complainant with interest @12% per month from the date of the deposit and thirdly, in the alternative, the payment of the compensation as provided under Clause 10 (c) of the agreement.
11. When a specific Clause i.e.10( c) is incorporated in the agreement Ex.C12 arrived at between the parties, which provides that in case of delay in construction of flat beyond the period as stipulated subject to force majeure and other circumstances, the developer shall pay to the buyer compensation @ Rs.53.80 per square meter or Rs.5/- per Square ft. of the super area of the flat per month for the period of delay, there is no question of the complainant asking for any lump sum compensation of Rs.15lacs.Similarly, we have not been able to find out any clause contained in the agreement under which the complainant could ask for the refund of the amount deposited by the complainant with the Op.Clause 10(a) of the agreement provides that Construction of the Flat is likely to be completed within a period of thirty six (36) months, extendable by six(06) months from the date of commencement of construction 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 Deptt., 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 by 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 of 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 compensation/part completion/occupancy/part occupancy certificate of the Tower/Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement”.
12. It is the plea taken up by the Op that the construction of ground floor roof slab had commenced in October/2010. There is  however, no document  produced on file by the Op to show as to when the construction of Tower-11 consisting of  flat no.301 of the complainant had started. It has merely made a reference to Annexrure F( Ex.OP6) pertaining to the demand letters and the reminders (colly), which no where states about any construction of Tower-11 having been started w.e.f. October,2010. After all one or the other record must have been maintained by the Op to show the starting of the construction of Tower-11 as the Op would have made the payments regarding the same to the concerned contractors or mesons or labourers, but no such record is produced by the Op, in the absence of which, we have to calculate the period regarding the construction of T-11 within a period of 36 months extendable by six months under Clause 10(a) of the agreement from the date of the agreement i.e. 3.5.2008 and that would take us to the cut of date  of 3.11.2011.
13. Here, it is important to note that the complainant got the Ops served with a legal notice dated 14.10.2014 ( copy Ex.C1) sent through registered post, the postal receipts in this regard being Exs.C2 and C3, in which the complainant had categorically alleged in para no.3 of the same that the Op had not started the construction work. The Op denied having received the said notice but in the absence of any evidence to have been lead by the Op that the notice sent through registered post on 14.10.2014 vide postal receipts Exs.C2 and C3 was not received by it, we have to rely upon the averments made by the complainant in this regard that the same was received by the Op.The Op having had the occasion and the opportunity to rebut the said averment by the complainant in the notice Ex.C1 that the Op had not started the construction work the same was not availed of by the Op. Consequently, we are of the considered view that the Op was obliged to compensate the complainant for the delay in construction of the flat w.e.f. 3.11.2011 in compliance with Clause 10 (c) of the agreement, which provides that the Developer shall pay to the Buyer compensation @ Rs.53.80 per sq.meter or Rs.5/- per sq.ft per month  in respect of the  super area of the flat to the purchaser of the same. It is not the plea of the Op that it ever made  any payment on that count to the complainant for any period. The payment has to be made per month. The area of the flat as mentioned in the agreement Ex.C2 is 1580 sq.ft. equivalent  to 146.78 sq. meters, which is said to be the super built up area and same is the area disclosed in letter No.PDL/Castle-Rajpura/3187 dated 17^th June,2009 Ex.OP5, written by the Op to the complainant, a fact not disputed by the complainant in his sworn affidavit Ex.CA in response to the plea taken up by the Op in the written version. We therefore, accept the complaint directing Op no.1 to make the payment of the compensation @ Rs.5/- per sq.ft. for the delayed construction of the flat w.e.f.3.11.2011 to the date of the filing of the complaint treating the super area of the flat as 1580 sq.ft. with interest @10% per annum and the Op shall go on making the payment of the same till the delivery of the possession of the flat. In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.5000/-. The order be complied by the Op within one month on receipt of the certified copy of the order.

Pronounced

Dated:3.8.2015

 

                   Sonia Bansal                 Neelam Gupta                        D.R.Arora

          Member                         Member                                  President