Chandigarh

DF-I

CC/405/2014

Sh. Amarpreet Singh - Complainant(s)

Versus

M/s Parsvnath Developers Limited. - Opp.Party(s)

Bipan Sharma

06 May 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

[1]

                                     

Consumer Complaint No.	:	CC/405/2014
Date of Institution	:	18/06/2014
Date of Decision	:	06/05/2015

 

 

1.      Sh. Amarpreet Singh s/o Sh. Pritam Singh

2.      Ms. Raji Singh w/o Sh. Amarpeet Singh,

          Both resident of H.No.3715, Sector 46/C, Chandigarh.

…..Complainants

V E R S U S

1. M/s Parsvnath Developers Limited having registered office at 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its Director/s/authorised Representative/s.
2. M/s Parsvnath Developers Limited having its branch office at Parsvnath builders, Pride Asia Project, Kishangarh Chowk, Chandigarh IT Park, Chandigarh, through its Senior Manager/Authorised representative.

……Opposite Parties

 

[2]

 

                                     

Consumer Complaint No.	:	CC/406/2014
Date of Institution	:	18/06/2014
Date of Decision	:	06/05/2015

 

 

1.      Sh. Devender Shekhar s/o Sh. Raj Kumar,

2.      Sh. Kapil Chauhan s/o Sh. Balbir Singh Chauhan

          Both resident of H.No.971A, PNB Street, Near Govt. Dispensary, Dhakoli, Zirakpur, Teh. Dera Bassi, Distt. Mohali, Punjab. Pin 140603

…..Complainants

V E R S U S

1. M/s Parsvnath Developers Limited having registered office at 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its Director/s/authorised Representative/s.
2. M/s Parsvnath Developers Limited having its branch office at Parsvnath builders, Pride Asia Project, Kishangarh Chowk, Chandigarh IT Park, Chandigarh, through its Senior Manager/Authorised representative.

……Opposite Parties

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                                                                               

                       

ARGUED BY	:	Sh. Bipin Sharma, Counsel for complainants
	:	Sh. Aftab Singh Khara, Counsel for OPs.

                       

 

PER P.L.AHUJA, PRESIDENT

1.         By this order we propose to dispose of the above mentioned two similar consumer complaints in which common questions of law and facts are involved.
2.         The facts are taken out from Consumer Complaint No.405 of 2014 titled as Sh. Amarpreet Singh & Anr. Vs. M/s Parsvnath Developers Limited & Anr.
3.         Sh. Amarpreet Singh (husband) and Mrs. Raji Singh (wife), complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Parsvnath Developers Limited & another, Opposite Parties (hereinafter called the OPs), alleging that they approached the OPs for purchasing a dwelling unit. The representative of the OPs showed the project/complex “Parsvnath Castle” to the complainants comprising of multiple apartments in the shape of group housing complex.  The basic price of one flat/apartment (2 bedrooms, drawing/ dining, kitchen, and 2 toilets) in the said project was quoted as Rs.13,15,821.50 calculated @ Rs.1253.16 per sq. ft. (equivalent to Rs.13,490.07 per sq. mtr.) of super built-up area of the flat and Rs.50,000/- for open car parking space in addition to basic price. The OPs assured that the possession would be delivered within a maximum period of 30 months positively. Complainant No.1 filled the application form on 5.12.2007 and issued a cheque dated 6.12.2007 amounting to Rs.50,000/- for the booking of apartment in complex namely “Parsvnath Castle”, Tehsil Rajpura, District Patiala.  Consequent upon the payment of the booking amount, residential tower T-2, Unit No.402 (top floor) under construction link plan with down payment rebate of 12%/14% for an approximate area of 1050 sq. ft. for a basic payment of Rs.12,49,000/- and additional car parking charges of Rs.50,000/- was provisionally allotted to the complainants. The complainants approached the HDFC Bank, Sector 8, Chandigarh for the grant of loan to make the payment of the above mentioned flat/apartment and a housing loan of Rs.11,00,000/- was approved.  Thereafter, Flat Buyer Agreement dated 20.3.2008 (Annexure C-4) was signed between the complainants and OP-1. It has been averred by the complainants that though in the application form the basic price of the flat/apartment was mentioned as Rs.12,49,000/-, but OP-1 very cleverly deceived the complainants by mentioning the basic price of the flat to be Rs.13,15,821.50 in the Flat Buyer Agreement. When the complainants perused the contents of the agreement, it transpired that the OPs had cheated them at the time of booking by making a false commitment that the physical possession of the apartment would be handed over within a period of 30 months whereas according to clause No.10 (a) of the agreement, construction of the flat is likely to be completed within a period of 36 months, extendable by 6 months from the date of commencement of construction on receipt of sanction of building plans/revised building plans and approvals etc. It has been averred by the complainants that they made the payments as per the agreement which were acknowledged. Copies of the receipts and letters are annexed at Annexure C-5 to C-7, C-9 and C-10.  Vide letter dated 30.4.2009 (Annexure C-8), the flat No.T2-402 of the complainant was changed to Flat No.T2-502.  According the complainants, they visited OP-2 many a times to know the latest position of the construction work of their flat/ apartment but every time they were assured that the same would be completed very shortly. The complainants also wrote letter dated 15.3.2013 and an email dated 30.4.2014 to the OPs demanding refund of the entire amount paid alongwith interest but to no avail.  It has been contended by the complainants that even after lapse of 6 years, there is no sign of completion of construction and delivery of physical possession of apartment in the near future. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainants have filed the instant complaint. 
4.         After appearance, the OPs filed preliminary submissions for dismissal of the complaint being not maintainable for want of territorial jurisdiction. The application filed by the OPs was opposed by the complainants.  However on 12.11.2014, the learned counsel for the OPs stated that he wanted to file reply and evidence in the main case on merits and the application for dismissal of the complaint on the ground of territorial jurisdiction be decided alongwith the main case. 
5.         In their joint written reply, OPs have admitted that the complainant booked a residential unit No.402 in Tower 2 in the project namely “Parsvnath Castle” and entered into flat buyer agreement dated 20.3.2008.  It has been averred that till date complainants have paid an amount of Rs.8,49,657/-(Rs.8,46,269/-?). It has been pleaded that construction at the site is in progress and the delay is caused due to global recession which is beyond the scope of the OPs. It has been denied that the OPs had assured to hand over physical possession of the said flat within a period of 30 months. It has been pleaded that as per clause 10 (a) of the agreement time is not the essence of the contract. It has been contended that the delay being caused in completion of the project would be duly compensated at the time of delivery of possession of the flat to the complainants. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
6.         In their rejoinder, the complainants have controverted the stand of the OPs and reiterated their own.  It has been denied that the construction work at the site is in progress and the complainants have always been informed about the progress in the construction work at the site and the construction activity at the site has been rescheduled to augment the work progress.
7.         The parties led evidence in support of their contentions.
8.         We have gone through the entire evidence, written arguments of the complainants and heard the arguments addressed by the learned Counsel for the parties.
9.         As far as the territorial jurisdiction of this Forum for entertaining the complaint is concerned, it has been contended by the learned counsel for the OPs that from the documents on record, it is clear that the project “Parsvnath Castle” is located at Rajpura and the registered and corporate office of the OPs is situated at New Delhi. He has also argued that even as per the flat buyer agreement dated 20.3.2008 (Annexure C-4), it has been specifically mentioned that courts at Delhi and Rajpura shall have territorial jurisdiction in case of any dispute.  He has also argued that the intimation letter was also sent to the complainant from Delhi branch, therefore, the complaint is not maintainable before the District Forum at Chandigarh.
10.         We have carefully considered the above arguments of the learned counsel for the OPs but, after going through the documents on record, we are of the view that this Forum has jurisdiction to try the present complaint.  According to the reply to the application filed by the complainants, the initial deposit of Rs.50,000/- by way of cheque (Annexure C-2) was paid to the OPs at Chandigarh and the same was received and got encashed by OP-2 at Chandigarh itself. The said amount of Rs.50,000/-  was paid directly to the OPs at the time of booking of flat in question at Chandigarh itself. A perusal of the copy of cheque (Annexure C-2) shows that it was received by some official of the OPs on 5.12.2007.  The OPs have not filed any affidavit to this effect that the initial deposit of Rs.50,000/- by way of cheque  was not received and got encashed by OP-2 at Chandigarh itself.  Further, the complainant has contended that an amount of Rs.1,35,552/-  was paid to the OPs by way of cheque/ demand draft No.852298 dated 2.2.2011 and the same was received by Mr. Karni Singh, Senior Executive Marketing for OP-1 at Chandigarh itself. Still further, an amount of Rs.1,34,970/- was paid to the OPs vide cheque/demand draft No.856888 dated 4.4.2011 and the same was also received by Mr. Karni Singh at Chandigarh. Copies of the said cheque/demand draft are at Annexure C-14 and C-15.  The copies of the demand draft/cheque at Annexure C-14 and C-15 clearly show that below the signature of Mr. Karni Singh, Senior Executive Marketing, there is a stamp of Parsvnath Developers Limited, SCO 1, First Floor, Sector 26, Madhya Marg, Chandigarh. No such affidavit of Mr. Karni Singh, Senior Executive Marketing for OP-1 has been produced which could show that he did not receive the amounts of Rs.1,35,552/- and Rs.1,34,970/- respectively from the complainants at Chandigarh.  Since the payment of the above said amounts was made by the complainants to the representative of the OPs at Chandigarh and branch office of M/s Parsvnath Developers Ltd. is also situated at Chandigarh, therefore, a part of cause of action arose to the complainants at Chandigarh and this Forum has the territorial jurisdiction to try the present complaint. Consequently, the application filed by the OPs as preliminary submissions for dismissal of the complaint for want of territorial jurisdiction is devoid of any merit and the same is dismissed.
11.         It is the admitted case of the OPs that Mr. Amarpreet Singh and Ms. Raji Singh, complainants booked a residential unit No.402 in Tower T-2 in the project namely “Parsvnath Castle” on 5.12.2007 after paying an amount of Rs.50,000/-.  Copy of the application form dated 5.12.2007 has been produced as Annexure C-1 by the complainants and Annexure B by the OPs.  It is also admitted case of the OPs that the complainants entered into a flat buyer agreement dated 20.3.2008 (Annexure C-4) by adopting the down payment plan. It is also admitted case of the OPs that the complainants have paid an amount of Rs.8,49,657/- as per details given in para 14 of the complaint. The complainants obtained housing loan of Rs.11.00 lakh from HDFC Bank, Sector 8, Chandigarh. The physical possession of the flat has not yet been handed over to the complainants despite the fact that the flat buyer agreement was executed on 20.3.2008.
12.         It has been urged by the learned counsel for the complainants that at the time of booking, a false commitment was made by the OPs that the physical possession of the apartment, complete in all respects, would be handed over to them within a period of 30 months.  It has been contended that in clause 10 (a) of the agreement dated 20.3.2008, it was mentioned that the construction of the flat was likely to be completed within a period of 36 months, extendable by six months from the date of commencement of the construction on receipt of sanction of the building plans/revised building plans and approvals of all concerned authorities. It has been contended by the learned counsel for the complainants that in clause 10 (c) of flat buyer agreement (Annexure C-4), it has been mentioned that in case of delay in construction of the flat beyond the period stipulated, the developer shall pay to the buyer 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. Further, as per clause 5 (b) of the flat buyers agreement (Annexure C-4), in exceptional circumstances, the developer may, in their sole discretion, condone the delay in payment by charging interest @ 24% per annum on the amounts in default.  It has been argued by the learned counsel for the complainants that when the developer may charge interest @ 24% per annum on the amounts in default, it is also liable to pay interest @ 24% per annum on the amount deposited by the complainants. He has argued that the cost of the land has increased manifold in the last 7 years and if the complainants have to buy the same size of flat today, they will have to shell out double the amount of money.  He has argued that there are no signs of completion of construction at the site so far.  In this context, he has also drawn our attention to the photographs at Annexure
    C-13. The learned counsel for the complainants has vehemently argued that the above acts of the OPs have shattered the dreams of the complainants and the OPs have indulged in unfair trade practice by torturing the complainants to the core of their heart. 
13.         On the other hand, the learned counsel for the OPs has urged that the construction work at the site is in progress but the delay is due to global recession which is beyond the scope of the OPs.  He has also argued that the complainants have always been kept informed about the progress in the construction work at the site and the construction activity at the site has been rescheduled to augment the work progress. He has also argued that the interest of the complainants due to delay in handing over the possession of the flat shall be duly taken care of in terms of clause 10 (c) of the flat buyer agreement at the time of delivering the possession of the flat. He has also argued that as per terms of clause 10 (a) of the flat buyer agreement, time is not the essence of the contract even though the period of 36 months plus the grace period of 06 months have expired.
14.         We have given our thoughtful consideration to the rival contentions. Admittedly, the complainants made an application for booking of the flat as far back as on 5.12.2007 i.e. Annexure C-1.  The flat buyer agreement was executed on 20.3.2008 (Annexure C-4).  As per flat buyer agreement, construction of the flat was likely to be completed within a period of 36 months extendable by six months from the date of commencement of construction on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities. The construction period was subject to force majeure restraints or restrictions from any courts/authorities, non-availability of building material etc. It is indeed quite unfortunate that so far only a small portion of initial construction has been raised at the site as depicted in the photographs at Annexure C-13. Even the OPs have not mentioned in their written reply as to when they are likely to give the possession of the apartment to the complainants. The photographs on the file nowhere show that the construction work is in progress. The OPs have not produced any evidence which could show that the construction work at the site is in progress. In other words, there are no signs of completion of the construction work in the near future. The explanation given by the OPs that the delay of construction work is due to global recession and the construction activity at the site has been rescheduled to augment the work progress is not acceptable. No force majeure circumstances have been explained. No such document has been produced as to in what way the construction activity at the site has been rescheduled to augment the work progress. Since there is no likelihood of delivery of possession of the apartment to the complainants in the near future, therefore, in our view, the complainants are certainly entitled to refund of the amount alongwith interest.  We are not impressed with this contention of the learned counsel for the OPs that time is not the essence of the agreement. A consumer cannot be kept waiting for possession of his apartment for an indefinite period.
15.         Adverting to the question of interest to be awarded on the amount to be refunded to the complainants, it is no doubt true that as per clause 5(b) of the flat buyer agreement (Annexure C-4), the developer may condone the delay in payment by charging interest @ 24% per annum on the amounts in default, but it does not mean that the complainants are also entitled to the refund of the amount with interest @ 24% per annum.  Flat buyer agreement is a bilateral agreement. If the developer on condoning the delay in payment may charge interest @ 24% per annum on the amounts of default as per agreement, it does not mean that the complainants are also entitled to interest @24% per annum on the amounts deposited by them because there is no such agreement.
16.         So far as the contention of the OPs that the interest of the complainants under the flat buyer agreement due to delay in handing over of the possession of the flat shall be duly taken care of in terms of clause 10(c) of the flat buyer agreement is concerned, the same is also devoid of any force because the interest of the complainants shall be seen by the OPs at the time of delivery of the possession of the flat which is not in sight in the near future.  The evidence on record clearly points out towards indulgence in unfair trade practice and deficiency in service on the part of the OPs. 
17.         Having regard to the totality of the circumstances, we are of the view that the complainants are entitled to interest @ 9% per annum from the dates of deposit till date of realization apart from getting compensation for harassment and mental agony and deficiency in service on the part of the OPs.
18.         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 refund the amount of Rs.8,46,270/- to the complainants alongwith interest @ 9% per annum from the respective dates of deposit till the date of realization.

ii)     To make payment of an amount of Rs.3.00 lakhs as compensation to the complainants for causing harassment and mental agony to them and indulging into unfair trade practice and being deficient in service.

iii)    To pay Rs.11,000/- to the complainants on account of litigation charges.

19.         The aforementioned second consumer complaint has been filed by Sh. Devender Shekhar and Sh. Kapil Chauhan, complainants.  The facts of this case are similar to the facts of the first complaint.  In the present case the complainants had deposited a total amount of Rs.8,49,657/- with the OPs in respect of flat No.404, Tower 1, 4^th Floor in the complex named “Parsvnath Castle”.
20.         For the reasons recorded above in Consumer Complaint No.405 of 2014 titled as Sh. Amarpreet Singh & Anr. Vs. M/s Parsvnath Developers Limited & Anr., this consumer complaint is also partly allowed.  The OPs are directed as under :-

i)      To refund the amount of Rs.8,49,657/- to the complainants alongwith interest @ 9% per annum from the respective dates of deposit till the date of realization.

ii)     To make payment of an amount of Rs.3.00 lakhs as compensation to the complainants for causing harassment and mental agony to them and indulging into unfair trade practice and being deficient in service.

iii)    To pay Rs.11,000/- to the complainants on account of litigation charges.

21.         This order be complied with by OPs within one month from the date of receipt of its certified copy failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, in both the cases, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above.
22.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
06/05/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President