Chandigarh

DF-II

CC/162/2021

Ms. Pratima Duggal - Complainant(s)

Versus

M/s Parsvnath Buildwell Pvt. Ltd. - Opp.Party(s)

Namit Kumar adv

07 Dec 2021

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

 

Consumer Complaint  No	:	162 of 2021
Date  of  Institution	:	09.03.2021
Date   of   Decision	:	07.12.2021

 

 

 

 

Ms.Pratima Duggal w/o Mr.Sunandan Sood, R/o #3313, Sector 32-D, Chandigarh 1600031   

             …..Complainant

 

Versus

1]  M/s Parsvnath Buildwell Pvt. Ltd., Metro Tower, Near Shahdara Metro Station, Shahdara, Delhi 110032

2]  Devidayal Aluminum Industries Pvt. Ltd., 149, GT Road, Block A, Block 10, Sector 3, Sahibabad, Ghaziabad, U.P.   

     ….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN             PRESIDENT

         SH.B.M.SHARMA                    MEMBER               

 

 

For Complainant :  Sh.Alankrit Bhardwaj, Advocate

For OP (s)        :  Sh.Satpal Dhamija, Advocate

 

 

PER B.M.SHARMA, MEMBER

 

         Concisely put, the complainant was represented by OP No.1 that OP No.1 & 2 plans to develop & construct a Group Housing Complex  consisting of residential flats known as ‘Parsvnath Exotica” and that they have entered into Assignment of Development Rights Agreement dated 28.12.2010 whereby they are entitled & competent to market, sell and transfer the residential flats/apartment and to receive consideration thereof from the prospective buyers.  It is stated that believing the said representations of OPs, the complainant purchased a Residential Unit/Flat No.D5-601, Sixth Floor, Tower No.D-5, measuring 1920 sq. ft., in the said project of OPs namely ‘Parsvnath Exotica’, Ghaziabad, vide ‘Flat Buyer Agreement’, dated 3.10.2013 (Ann.C-1), executed between the parties on making payment of Basic Sale price of Rs.53,76,000/- apart from paying Rs.3 lacs for covered car parking and Rs.1.50 lacs for Open Car parking space along with other charges.  In this way, the complainant paid an amount of Rs.58,51,388/- to the OP Company against the said flat/unit which includes the excess payment of Rs.2,77,105.92, as intimated by OP Company vide letter dated 3.10.2013 (Ann.C-2).  It is stated that the OP Company failed to complete the construction of the flat and deliver the same to the complainant within the stipulated period 36 months+6 months additional grace period, from the date of execution of the agreement (Ann.C-1), therefore, the complainant per Flat Buyer Agreement, sought cancellation of the Agreement and refund of the amount with interest from the OPs.  The complainant sent legal notice dated 27.1.2020 to the OPs, but to no avail.  Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OPs.

 

2]       The OP No.1 has filed reply and while admitting the factual matrix of the case about booking of the flat in question, execution of Flat Buyer Agreement dated 3.10.2013 and entire payment made by the complainant, stated that in the Flat Buyer Agreement executed between the parties, it is mentioned that the construction of the flat shall be completed within a period of 36 months plus grace period of 6 months, subject to receipt of sanction of building plans/revised building plans and approvals of all concerned authorities as may be required for commencing and carrying on construction, subject to force majeure, from the date of agreement.  It is also stated that at the time of booing of the flat, the complainant was aware that revised building plans are pending with authority for its approval.  It is further stated that since the revised building plans could not be approved by the authority due to issues with collaborators, the construction could not be completed in the Tower in which the flat of the complainant is located.  It is submitted that with the persistent efforts of the OP No.1, keeping in mind the interest of the allottees of the Project and with the intervention of the Ld.Sole Arbitrator, appointed by Hon’ble Supreme Court of India, the OP No.1 company and Collaborators (M/s Devidayal Aluminum Industries Private Limited) had agreed to cooperate with the Company to get the revalidation of original building plans and commencement of construction at the Project Site.  It is also submitted that Ghaziabad Development Authority vide letter dated 25.3.2021 has granted the OP No.1 permission to develop and complete the construction of ten (10) existing towers on the Project Land and has further granted liberty to submit revised Building/Layout Plans in regard to remaining 14 Towers for approval of GDA.  It is pleaded that the OP No.1 Company is putting its best efforts to start the construction and possession of the flat shall be handed over to the complainant within stipulated time and for the period of delay, it shall pay compensation @5/- of the super area of the flat per month. Denying other allegations, the OP No.1 has prayed for dismissal of complaint.

         OP No.2 did not turn up despite service of notice through publication, hence it was proceeded exparte vide order dated 28.10.2021.

3]       Replication has also been filed by the complainant controverting the assertions of OP.

4]       Parties led evidence in support of their contention.

5]       We have heard the Ld.Counsel for the parties and have gone through entire documents on record including written arguments.

6]       It is clear from documents on file that that a similar complaint earlier filed by complainant on same facts, as in present case, vide C.C. No.337 of 2020 before the Hon’ble National Commission, New Delhi, was dismissed as withdrawn on 28.1.2021 with liberty to file it before the appropriate Forum (Ann.C-17), therefore the present compliant is completely  maintainable before this Commission. 

7]       The perusal of the record reveals that the OP No.1 Company has already received the sale consideration for the Unit/Flat in question in excess in the year 2013, but has not been able to deliver the possession of the same to the complainant.  Pertinently, the OP No.1 Company was not having all the required sanctions from the competent authorities when they took the sale consideration/amount from the complainant.  It is evident from Ann.C-1 (Flat Buyer Agreement) & Ann.C-2 (Letter dated 3.10.2013 issued by OP No.1) that the hard-earned money of the complainant is in the possession of the OP No.1 Company since the year 2013. 

It is settled law by the Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 that - “It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers.”

The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         Hence, the act of the Opposite Party No.1 to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handling over possession of the flat in question certainly proves deficiency in service and their indulgence in unfair trade practice. 

8]       In the light of above observations, we are of the considered view that the Opposite Party No.1 is found deficient in rendering proper service to the complainant and have indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party No.1. Accordingly, the complaint stands allowed against the OP No.1. The Opposite Party No.1 is directed as under:-

a)  To refund the entire amount of Rs.58,51,388/- to the complainant, along with interest @9% per annum from the respective dates of deposits till realisation;

b) To pay a compository an amount of Rs.50,000/- to the complainant towards compensation for causing her mental agony & harassment and litigation expenses. 

         The above said order shall be complied with by the Opposite Party No.1 within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.20,000/- apart from the above awarded amount.

9]       The complaint qua OP NO.2 stands dismissed.

        The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced                                                             

07^th Dec., 2021                                                                                                                                                                 sd/-

                                      (RAJAN DEWAN)

PRESIDENT

 

 

 

Sd/-

 (B.M.SHARMA)

MEMBER

Om