IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

Date of Hearing:30.07.2021

Date of Decision:31.08.2021

Complaint No.996/2015

IN THE MATTER OF

SMT. NEERU KAPOOR

W/o Sh. Sanjeev Kapoor

SH. SANJEEV KAPOOR

S/o Sh. Tilak Raj Kapoor

Both residents of:

SV-1/01, TF-Eldeco Utopia,

Sector-93-A, Noida Expressway,

Noida-201306 ….Complainants

VERSUS

M/S PARSVNATH BUILDWELL PVT. LTD.

Previously Known as:

M/s Parsvnath Developers Ltd.

Having its registered office,

At 6^th floor, Arunachal Building,

19, Barakhamba Road

New Delhi-110001                                                                            ...Opposite Party

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER 

1.   Whether reporters of local newspaper be allowed to see the judgment?                             Yes     

 2.   To be referred to the reporter or not?                                                                                        Yes

Present:          Sh. Arun Dutta, Counsel for the Complainant

                        Sh. Rakesh Bhardwaj, Counsel for the OP 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.       This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by Smt. Neeru Kapoor and Sh. Sanjeev Kapoor, resident of NOIDA, Uttar Pradesh, for short complainants, against the M/s Parsvnath Buildwell Pvt. Ltd., hereinafter referred to as OPs, alleging deficiency on the part of the OPs, they having not handed over possession of the flat bearing number D-1/203 in Tower Number D-1 in their project named, Parsvnath Exotica, Ghaziabad, within the time agreed to despite the agreed period for the purpose having elapsed and despite the payment having been made as per the schedule and praying for the relief as under:-

In the facts and circumstances stated hereinabove, it is most respectfully prayed that this Hon’ble Commission may kindly be pleased to:-

1. Direct the OP to refund a sum of Rs. 56,20,477.7.
2. Award compensation of Rs. 5,00,000/- as damages towards mental pain and suffering of the complainants.
3. Award interest @ 24% per annum on the amounts detailed in prayer (a) and (b).
4. Award pendentelite and future interest @ 24% till the actual payments by the respondent.
5. Award cost of litigation in favour of the complainants and against the respondent.
6. Pass such other or further order which this Hon’ble Commission may deem fit and proper and the facts and circumstances of this case.

2.       Facts of the case necessary for the adjudication of the complaint are these.
3.       The complainant being impressed by the false assurances of the officials of the OPs booked a flat in their project namely, Parsvnath Exotica, Ghaziabad. The complainants and the OPs as a consequence thereof entered into Flat Buyers Agreement on 10.10.2007 for the purchase of residential flat bearing no. D-1/203, on second floor in tower no. D-1 having an approximate 1920 sq. ft. of super build-up area consisting of three bedrooms, drawing, dinning, kitchen, three toilets, balconies with servant room in the complex named as Parsvnath Exotica at a basic price of Rs. 56,34,720/- @ Rs. 2934.75 per sq. ft.. The complainant paid at the time of signing of the Flat Buyers Agreement a sum of Rs. 11,26,944/- opting for the payment schedule under plan-B a construction linked payment plan which means the complainants were liable to pay as per the progress of the construction.
4.       However despite the complainants having paid the initial booking amount the construction of the project did not begin. The complainant therefore sought the clarification from the OPs as to why the construction had not started but no satisfactory reply was furnished. On the contrary the OPs continued demanding instalments from the complainants. The complainants in this connection have drawn attention to clause 10(a) of the flat buyers agreement reading under:-

“10(a) Construction of the flat is likely to be completed within a period of 36 months from the date of commencement of construction of the particular tower in which the flat is located on receipt of sanction of building plan/revised building plans and approvals of the all concerned authorities 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 majeure, restraints restrictions from any court/authorities, non-availability of building materials, disputes with contractor/work force etc. and circumstances beyond the control of the developer and subject to timely payment 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 the said reasons. The date of 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.”

5.       Even after the lapse of the period of 36 months the project was not complete but the respondent kept demanding the payment of money in terms of the agreed construction linked plan. The complainants kept paying the instalments. The complainants have paid a sum of Rs. 50,73,227.07 till the date of filing this complaint but the possession of the flat has not been handed over. The last payment was made by the complainants on 26.04.2013.
6.       The complainants having waited for almost eight years for the delivery of the flat sought for the refund of the entire amount paid by them along-with interest @ 24% per annum within 30 days of receipt of the same which refund, not having been done this complaint has been filed for the redressal of their grievances.
7.       OPs were noticed and in response thereto they have filed their written statement stating that the complainants are not consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 as the flat was booked for investment purpose which amounts to for commercial activities. Secondly, the complaint is liable to be dismissed for mis-joinder and non-joinder of necessary parties as M/s Devidayal Aluminium group is necessary party but not impleaded. Thirdly, the matter involves complicated questions of facts and law in which case this Commission cannot adjudicate the issues in summary procedure. Fourth the OPs could not execute the project for want of necessary approvals from the concerned government authorities. Fifth the complaint is pre-mature as the handing over the possession of the flat was not fixed and as per contents of para 10 (a) of the Flat Buyer Agreement time is not essence of the contract. Sixth, the complaint is not maintainable since recovery of amount has been sought for. Finally the OPs have sought for the consideration of Section 3 of Interest Act, 1978 while passing orders on the interest.
8.       The complainant has thereafter filed the rejoinder rebutting the contentions raised in the reply and reiterating the averments contained in the complaint. Both sides have also filed their evidence by way of affidavit in support of their pleadings. Their written arguments are also on record.
9.       This complaint was listed before this Commission for final hearing on 30.07.2021 when the counsel for both sides appeared and advanced their arguments in support of their pleadings, the complainant for the refund of the deposited amount the OPs having failed to complete the project within the agreed period and the OPs for dismissal of the complaint, no case for deficiency as against them having been made out as against them. I have perused the records of the case and considered the rival contentions involved.
10.       Short question for adjudication in the complaint is whether in the facts and circumstances of the case the complainants are entitled for the refund of the amount as prayed for
11.       It is a statement of fact that the possession of the flat booked by the complainant was not handed over within the agreed period. The fact that the payment has been made by the complainant as per the demand has also not been substantially controverted.
12.       In the first instance I may deal with the objections of the OPs. Their objection that the complaint is not maintainable, the complainants having booked the flat for commercial purpose in which case they are not consumers within the meaning of Section 2(1)(d) of the Act, the condition precedent to seek relief before the Consumer Forum, cannot sustain for want of cogent and tangible evidence to this effect. Their next objection that the complaint cannot be allowed due to non-joinder of parties is not acceptable as the relief claimed is only against the OPs. Their objection that since complicated questions of law are involved in this complaint, the same is not maintainable before the Consumer Forum in summary procedure can also not be accepted for the reasons indicated hereinafter.
13.       The Hon’ble Supreme Court of India is pleased to observe in the matter of CCI Chambers Coop. HSG. Society Ltd. versus Development Credit Bank Ltd. as reported in (2003)7 SCC 233 as under:

14.       In the case of Indian Medical Assn. versus V.D. Shartha as reported in (1995) 6 SCC 651 the Hon’ble Supreme Court noticed the powers conferred on the several fora under the Act, the procedure applicable (including the exercise of powers of the civil court under the Code of Civil Procedure having been made available to the fora under the Act) and held that the nature of averments made in the complaint is not by itself enough to arrive at a conclusion that the complainant raised such complicated questions as cannot be determined by NCDRC. It is only when the dispute arising for adjudication is such as would require recording of lengthy evidence not permissible within the scope of a summary enquiry that a forum under the Act may ask the complainant to approach the civil court. The fora made available under the Act are in addition to, and not in derogation of the provisions of any other law for the time being in force and the jurisdiction of the conventional courts over such matters as are now cognizable under the Act has not been taken away.
15.       In Amar Jwala Paper Mills (India) versus State Bank of India as reported in (1998)8 SCC 387,  their Lordships in the Supreme Court set aside the order of the Hon’ble NCDRC relegating a complainant to a civil court inspite of the complexity of the matter because the hearing had almost concluded before the Commission.
16.       In the matter of Dr JJ Merchant versus Shrinath Chaturvedi as reported in (2002) 6 SCC 635 the Hon’ble Supreme Court of India while dealing with the contention that complicated questions of facts cannot be decided in summary proceedings held as under:

“This submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of fact are required to be dealt with or decided. The Act provides sufficient safeguards.”

17.       Their objection about interest to be levied under the Interest Act cannot be accepted as the remedy available under the provisions of the Consumer Protection Act 1986 is in addition to and not in derogation of any other law.
18.       Having dealt with the submissions made by the OPs I proceed to adjudicate the matter on merit. Payment to the extent demand was made having been made by the complainant and the OPs not handing over possession of the flat amounts to deficiency as contemplated under Section 2(1)(9) of the Act. It is a trite law that where possession of the property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade as defined under Section 2(r)(ii)  of the Act, as well. For reference Lucknow Development Authority versus M.K. Gupta [(1994) 1 SCC 243].
19.       Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted.
20.       Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted flat.
21.       The provisions of the act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental, or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action on the part of the part of the OP. In Ghaziabad Development Authority vs. Balbir Singh-(2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations, given in the said decision was between the cases, where possession of a booked/ allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a flat of land, like in the present case.
22.       The Hon’ble NCDRC in the matter of Puneet Malhotra vs. Parsvnath Developers Ltd. CC 232/2014 decided on 29.01.2015 is pleased to hold as under:

“The opposite party has already taken almost entire sale consideration from the complainants. However, despite making almost entire payment, the complainants have not been able to get the shelters they had sought to acquire and considering the steep increase in the value of land and the cost of construction in last 7-8 years, it is not possible for them to acquire another similar accommodation even after adding the amount of interest @ 18% per annum to the amount they had deposited with the opposite party. Therefore , the facts of these cases are really gross and justify grant of interest @ 18% per annum, inclusive of appreciation in the value of land and in the cost of construction in last about 7-8 years. For the reasons stated hereinabove, the complaints are disposed of with a direction to the opposite party to refund the amount which the complainants had deposited with it, along with interest on the said amount @ 18% per annum from the date the deposit was made till the date the refund is made. This comprises 8% per annum on account of appreciation in the land value and increase in cost of construction and 10% on account of interest. However, considering that compensation is included in grant of interest @ 18% per annum, we do not grant any separate compensation to the complainants over and above interest @ 18% per annum.”

23.       The Hon’ble NCDRC in yet matter of Swarn Talwar and two ors vs Unitech Ltd. passed in CC 347/2014 decided on 14.08.2015 is pleased to hold as under:

For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit til the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of.

24.       Accordingly keeping in view the law laid down, deficiency on the part of the OPs having been established, they are directed to refund the principal amount with simple interest @ 6% per annum from the date of deposit till realisation. This refund and the interest be paid to the complainant by the OP within a period of three months from the date of receipt of this order, failing which 9% interest would be imposed.
25.       In addition to the aforesaid and taking into consideration the facts of the present case, the OPs are further directed to pay to the complainant.

1. A sum of Rs. 1,00,000/- as cost for mental agony and harassment;
2. And the litigation cost to the extent of Rs. 50,000/-

26.       Ordered accordingly.
27.       Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
28.       A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
29.       File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

31.08.2021

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