Delhi

East Delhi

CC/418/2021

MAHREEN MOTTO - Complainant(s)

Versus

M/S PARSHAVNATH DEVELOP. - Opp.Party(s)

23 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 418/2021

 

 

	Mrs.Mehreen Matto, W/o Late Dr. Omar Sadat Shah, D/o Mr. Shaukat Aziz Matto, R/o. C-57, Anupam Society, Vasundhara Enclave, Delhi-110096	….Complainant
Versus
	M/s Parsvnath Developers Ltd., Corporate Office At:- Parasvnath Tower, Near Shahdara Metro Station, Delhi-110032 Through its Director/Authorised Signatory	……OP

 

Date of Institution: 10.10.2021

Judgment Reserved on: 03.08.2023

Judgment Passed on: 23.08.2023

                       

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal (Member)

 

Order By: Sh. Ravi Kumar (Member)

 

JUDGMENT

 

1. The Complainant has alleged the deficiency in service on the part of OP in not giving her possession of the Flat booked by her in 2013 in the Project of OP in Greater Noida  nor refunding the amount deposited by her towards the said Flat.
2. The Complainant has contented in her complaint that on account of advertisement published by OP in the year 2013 in social media/electronic media etc for their upcoming project namely ‘Parsvnath Privilege’ at Plot No. 11, in Sector-Pi, Greater Noida, she and her husband Dr.Omar Sadat Shah were induced to book dwelling units and OP had assured that their Project shall be completed within the period of 36 months with another grace period of 6 months. 
3. Accordingly she and her husband booked two Residential units i.e. Flat No. T5-702 & T11-703 admeasuring 1855 sq. ft each i.e. Flat no. T5-702 was booked in the name of Complainant and Flat no.T11-703 was booked in the name of her husband Dr.Omar Sadat Shah. Initially Complainant paid Rs. 6,74,666/- on 25.05.2013 and her husband paid Rs.6,61,104/- . Thereafter she further paid Rs.11,37,547/- on 06.07.2013 and Flat-Buyer Agreement was executed on 31.07.2013 between the Complainant and OP. Her husband also paid Rs.11,15,948/-on 24.11.2013. At the time of executing Flat -  Buyer Agreement, the OP specifically agreed that construction of Flat is likely to be completed within a period of 36 months + 6 months grace period from the commencement of construction  on receipt of requisite approvals including sanction of Building Plans, environmental clearance etc however they unauthorisedly inserted one line in the said clause ‘No claim by way of damages/compensation shall lie against the developer in case of delay in handing over possession of the Flat on account of the said reasons.’
4. The Complainant has also mentioned that there is provision of delayed penalty on OP @Rs.5 per sq. ft of Super Area of Flat per month as per Clause 10(c) of the Flat Buyer Agreement dated 31.07.2013.
5. Unfortunately the husband of the Complainant expired on 16.03.2016 and the Complainant thereafter wrote a letter to the OP about the financial difficulties she was facing and requested to merge the booking of Flat No. T11-703 (which was booked by her husband) and to transfer the entire amount of the said Flat no. T11-703 to Flat No. T5-702 which was booked by the Complainant. The said letter was received by OP on 24.08.2018. The OP vide letter dated 26.08.2020 cancelled the booking of Flat No. T11-703 and the amount received towards the said Flat was transferred in the booking of Flat No.T5-  702 with Customer Code A39/MO111.
6. However despite of more than 7 years, the construction of Tower T-5 where the Flat allocated to the Complainant was located never commenced and there is no prospect of its completion in near future. She also stated that so many other persons have got their booking cancelled and received the refund of the entire amount however the Complainant did not receive her amount nor the Flat so booked by her. When there was no progress at the construction site of Tower T-5, the Complainant vide letter dated 26.08.2020 requested OP to cancel the said allotment and refund the amount but OP fail to do so.
7. When there was no response from the OP, the Complainant issued Legal Notice dated 09.09.2021and sought refund of Rs.35,89,269/- with interest @18% per month from the date of deposit however no refund was given.
8. Finding no option the Complainant has filed the present complaint seeking following prayers;

- direct the OP to pay to the Complainant a sum of Rs.35,89,269/- (Rupees Thirty Five Lacs Eighty Nine Thousand Two Hundred Sixty Nine) being the actual amount remitted by the Complainant with the OP together with interest @ 18% per annum from the date of deposit till final payment;

- direct the OP to pay to the Complainant Rs.10,00,000/- by way of damages/compensation for mental agony, torture, humiliation, inconvenience, hardships etc. suffered by the Complainant on account of the inaction on the part of the OP;

• Award cost to the Complainant;
• Award any other or further relief /s which this Commission deems fit and proper.

 

9. Notice was issued and OP has filed its reply dated 22.04.2022 wherein it has stated that OP planned to develop the project ‘Parsvnath Privilege’ in Greater Noida and has accepted the contention of the Complainant that upon demise of her husband and on the request of the Complainant it cancelled the booking towards Flat No. T11-703 and transferred the amount deposited towards the said Flat no.T11-703 to Flat No. T5-702. The OP had informed Complainant that work at construction site is in progress however there is delay caused due to global recession which was beyond the control of the OP and Complainant was informed that construction activity has been rescheduled to augment the work progress and the Complainant was informed that interest due to delay in handing over the possession of the Flat shall be duly taken care in terms of the Clause 10 (c) of Flat-Buyer Agreement at the time of delivering the possession of the Flat.
10. OP has also contended that Complainant is not a consumer as she is permanent resident of Srinagar and had made this investment for earning profit. Further the Complainant ought to have instituted the matter in District Court because Complainant is seeking recovery of amount as one of the main relief and the property in question situated in Greater Noida, UP and therefore this Commission does not have territorial jurisdiction. The Complainant did default in making payment as per payment plan and it is essential to maintain smooth cash-flow in ongoing construction of the project. The OP never breached or violated the provision of Flat-Buyer Agreement and there is no deficiency in service on their part.
11. OP has also stated that the Complainant has also approached RERA, UP and hence is not entitled for indulgence of this Commission. The Complainant has not filed original receipts in order to demonstrate the actual amount paid by her to the OP. The complaint has been filed belatedly after 8 years as the Flat was booked in 2013 and therefore the complaint is time barred under Section 69(1) of Consumer Protection Act, 2019.
12. The Complainant has filed Rejoinder to the reply of the OP denying the contents of the reply of the OP and has reiterated her complaint. She also stated that already in 2022 when reply of the OP has been filed almost 9 years have passed but the construction of Tower T-5 where the Flat booked by the Complainant is located has not commenced and there is no likelihood of the Project to be completed in near future. As regards, the remittance of the amount by the Complainant to the OP, the OP has already accepted the same in their letter dated 26.08.2020.
13. The Complainant has filed her evidence by way of affidavit :

• Copy of Flat-Buyer Agreement dated 31.07.2013 as Exhibit CW-1/1.
• Copy of  Draft dated 25.05.2013 as Exhibit CW-1/2.
• Copy of  Draft dated 06.07.2013 as Exhibit CW-1/3.
• Copy of Drafts dated 12.10.2013 and 24.11.2013 as Exhibit CW-1/4(colly)
• Copy of Death Certificate of Dr. Omar Sadat Shah as Exhibit CW- 1/5
• Copy of letter dated 24.08.2018 as Exhibit CW-1/6
• Copy of letter dated 26.08.20120 as Exhibit CW-1/7
• Copy of letter dated 26.08.2018 as with Postal Receipt as Exhibit CW-1/8
• Copy of Notice dated 30.03.2021 as Exhibit CW-1/9
• Copy of Notice dated 09.09.2021 with Postal Receipt as Exhibit CW-1/10

14. The OP has filed evidence by way of affidavit :

• The Board Resolution dated 09.05.2022 passed by the Board of Directors of OP as Ex. OPW1/1.

15. This Commission has heard the arguments and perused the records.

It is not in dispute that Complainant and her husband i.e. Dr. Omar Sadat Shah booked two Flats i.e. Flat No. T5 702 & Flat No. T11 703 admeasuring 1855 sq. ft. each  in the Project ‘Parasvnath Privilege’ in Sector Pi in Greater Noida and the base price was Rs.65,44,440/- of each Flat. Complainant has filed Exhibit CW 1/2, CW 1/3 & CW1/4 (Colly) which are copies of cheques issued  by her and her husband towards payment of their respective Flats to OP. The sum total of these  Cheques is Rs.35,89,265/-.

Flat-Buyer Agreement was executed on 31.07.2013 (Exhibit CW-1/1) between Complainant and OP and as per the same under Clause 4(a) it is mentioned that the Complainant has paid Rs.16,36,110/- to OP. Further as per said Exhibit CW 1/1 under Clause 10(a) the Flat was to be delivered within 36 months from the date of commencement of construction with grace period of another 6 months and in case of delay the OP was liable to pay penalty @Rs.5 per sq. ft of Super Area of Flat per month to the Complainant.

16. Unfortunately the husband of the Complainant Dr.Omar Sadat Shah expired  on 16.03.2016 (Exhibit CW-1/5) and on account of financial constrains the Complainant requested by way of letter to OP (Exhibit CW-1/6) which was received by OP on 24.08.2018 to cancel the booking of Flat No. T11 703 which was booked in the name of the Complainant’s husband and transfer the amount of the said Flat in the booking of Flat No. T5-702.  The OP vide their letter dated 26.08.2020 (Exhibit CW-1/7) then transferred the amount it had received towards Flat no.T11-703 to Flat no.T5-702 in the name of the Complainant.
17. As per the Flat-Buyer Agreement (Exhibit CW-1/1) executed on 31.07.2013 under Clause 10(a),  OP should have handed over the possession of the Flat from the date of commencement of construction (though no date has been specified by OP as to when construction was to commence) but in any case if the date of Flat-Buyer is to be taken then construction of Flat should have been got completed by 31.07.2016 i.e. after 36 months and if another 6 months grace period is added then by 31.12.2016. However the same did not happen and during this period the husband of the Complainant expired on 16.03.2016. Even today OP has not handed over the possession of the Flat to the Complainant.
18. OP has contended that delay in their Project was on account of global recession which is beyond the control of the OP and that they are ready to comply terms of the Clause 10 (c) of the Flat-Buyer Agreement to pay interest at the time of delivering the possession of the Flat to the Complainant. However the fact is till 2022 when the Rejoinder was filed by the Complainant there was no progress of construction of Tower T5 where the Flat so booked by the Complainant is located. How OP is expecting that Complainant would continue to pay the balance amount without its (OP’s) starting even the construction and therefore the contention of OP that there was delay on the part of Complainant in making payment is untenable. There is inordinate delay in completion of the Project by the OP. Further the contention of the OP that the complaint filed by the Complanant is time barred is untenable as the Hon’ble Supreme Court in the case of title Samridhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. 2022 Live Law (SC) 36 has held that non delivering of the Flat is continuous cause of action and therefore the complaint filed by the Complainant is not time barred as no Flat has been delivered by the OP to the Complainant till date.
19. As regards the contention of the OP that Complainant belongs to Srinagar and had booked two Flats to earn profit is incorrect as though initially two Flats were booked however finally one Flat was cancelled and only one Flat was retained which was confirmed by the OP vide their letter dated 26.08.2020 that  Flat No. T11-703 was cancelled and therefore booking of only one Flat No. T5 - 702 is in existence and Complainant has also stated that she has been waiting for handing over the possession of the Flat from 2013 and therefore it cannot be said by the OP the same was booked to earn profit.
20. As per the terms & conditions of Flat-Buyer Agreement dated 31.07.2013 the Flat booked by the Complainant should have been delivered to her latest by 31.12.2016 however even till date the OP is not confirming that they are ready with the Flat to be handed over to the Complainant. OP cannot make Complainant to wait for indefinite period to get her Flat. OP cannot have the best of both worlds i.e. have the money of the Complainant and not hand over the Flat to the Complainant also.
21. Complainant has sought refund of amount deposited by her as a last resort as OP miserably failed to hand over possession of the Flat even after 9 years so booked by her in 2013. Not complying the Terms & Conditions of Flat-Buyer Agreement after taking approx. 50% of the total cost of the Flat by not handing over possession of the Flat amounts to deficiency in service on their part in terms of Flat Buyer Agreement and therefore it cannot be contended by the OP that it is case of recovery.
22. Also OP has contended that it is ready to give penalty of Rs.5 per sq ft as per the Flat-Buyer Agreement - Clause 10 (c) when it will give possession of the Flat to the Complainant however this contention of OP is also not tenable in view of the judgement of Hon’ble NCDRC in Mehnga Singh Khera and Ors vs Unitec Ltd reported in 1 (2020) CPJ 93 (NC) wherein it has been held…

‘Payment of a nominal compensation such as Rs.5/- per square feet of the super area has become order of the day in contracts designed by big builders and a person seeking to buy an apartment is left with no option but to sign on the dotted lines, since the rejection of such a term by him would mean cancellation of the allotment. No reasonable person would volunteer to accept compensation constituting about 2-3% of his investment in case of delay on the part of the builder, when he is made to pay compound interest @18% p.a. for delay on his part in making payment. It can hardly be disputed that a term of this nature wholly one sided, unfair and unreasonable.’

23. Further the above judgement of Hon’ble NCDRC has also been relied upon by Hon’ble SCDRC Delhi while allowing the complaint filed by Neeraj Kumar against M/s Parsvanath Developers Ltd on 05.07.2022.
24. As regards jurisdiction of this Commission the address of the OP is at Parasvnath Tower Near Shahdara Metro Station which falls within jurisdiction of this Commission and therefore OP cannot contend that since project is situated in Greater Noida therefore this Commission has no jurisdiction on the matter before it.
25. As regards the contention of the OP with regard to the complaint made to RERA UP by the Complainant. It has been held by the Hon’ble Supreme Court in the case Imperia Sructures Ltd vs Anil Patni that allottees under RERA can be incorporated under the ambit of ‘consumers’ mentioned within Consumer Protection Act. Therefore filing of complaint before RERA does not debar jurisdiction of this Commission. Further, OP has not produced RERA UP order on the same issue in support of its contention.
26. Now coming to the question as to whether the OP has offered possession of the Flat so booked by the Complainant. The answer is in negative as Complainant has categorically stated that Tower T5 of the Project of OP where her Flat is situated there is no construction activity and this has not been refuted by the OP.
27. As regards the contention of OP that Complainant has not filed receipts of payment made to them. The same is untenable as it was the duty of OP to produce the Ledger account of the Complainant which was in their possession however it failed to do and Complainant has filed copy of cheques issued by her and her husband in favour of OP as Exhibit CW 1/2, CW 1/3 & CW1/4 (Colly) where the total amount comes to Rs.35,89,265/-.
28. For the reasons stated supra, this Commission holds OP liable for deficiency in service in not handing over the possession of the Flat no.T5-702 to the Complainant despite of receiving Rs.35,89,265/- and orders as follows;

• OP to refund of Rs.35,89,265/- with interest @ 9% p.a from the date of  each deposit to the Complainant within 30 days from the date of the Order.
• OP to pay Rs.25,000/- towards mental agony, inconvenience to the Complainant.
• OP to pay Rs.15,000/- towards litigation cost to the Complainant.

This order shall be complied by the OP within 30 days from the date of the order failing which OP shall pay interest @12% p.a. on all the above amounts till date of realization.

3. opy of the Order be supplied/sent to the Parties free of cost as per rules.

File be consigned to Record Room.

Announced on 23.08.2023