Haryana

Karnal

CC/333/2021

Mukesh Singla - Complainant(s)

Versus

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

Pawan Gupta

06 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 333 of 2021

                                                        Date of instt.15.07.2021

                                                        Date of Decision:06.04.2023

 

Mukesh Singla aged 40 years, son of Shri Jai Bhagwan, resident of house no.390, Sector 7, Urban Estate, Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     M/s Parsvnath Developers Ltd. registered office at Parsvnath Metro Towers, near Shahdra Metro Station, Delhi 110032 through its Chairman/Managing Director.

2.     M/s Parsvnath Developers Ltd. Corporate office at 6^th floor, Arunachal Building, 19-Barakhamba Road, New Delhi-110001 through  its Director/Authorized Signatory.

3.     M/s Parsvnath Developers Ltd. Branch office at Meerut Road Karnal through its authorized signatory/Manager.

4.     Abhishek Paliwal son of Shri Avinash Chander.

5.     Rani Paliwal wife of Shri Avinash Chander.

6.     Ms. Swati Paliwal, Director M/s Abhitex International Panipat.

7.     Mrs. Prachi Paliwal, Director M/s Abhitex International Panipat.

8.     Ms. Richa Paliwal, Director M/s Abhitex International Panipat.

        All residts of Paliwal House, G.T. Road, Panipat.

9.    M/s Abhitex International, Sector 29, Panipat through its Director.

10.   M/s Adonis International, Paliwal Nagar, G.T. Road, Panipat through its Director.

11.   M/s Paliwal Fibers Pvt. Ltd. Registered office B-14, Greater Kailash Part-I, New Delhi through its Director.

12    M/s Paliwal Industries Pvt. Ltd. Registered Office B-14, Greater Kailash Part-I, New Delhi through its Director.

13.   M/s Paliwal Overseas Pvt. Ltd. Registered office B-14, Greater Kailash Part-I, New Delhi through its Director.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Pawan Gupta, counsel for the complainant.

                    Shri Sanjay Singla, counsel for the OPs no.1 to 3.

                    OPs no.4 to 13 exparte, vide order dt.06.10.2021.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs no.4 to 13 are the land owners of land measuring 1299 kanals 17 marlas i.e.162.48 acres, situated at village Fareedpur, tehsil and District Panipat and OPs no.1 to 3 are the developers of the said land and OPs jointly had launched a project on the abovesaid land namely “Parasvnath Royale Floors” Parasvnath Paliwal City, Panipat. Complainant had booked the floor/flat bearing no.B-118 F in the project of the OPs, having carpet area of approximately 1450 sq. feet i.e. 134.70 sq. meters consisting of three bedrooms, drawing/dining rooms, kitchen, toilet with servant room and balconies and a flat buyer agreement in this regard was duly executed between the parties on 12.11.2010. The total price of the abovesaid flat was Rs.16,67,000/-. Against the booking of said flat, initially complainant has paid the booking amount of Rs.1,70,992/- on 20.09.2010 to the OP. Thereafter, on the day of agreement and as per the demand of the OPs, complainant has paid Rs.1,75,285/- to the OPs on 10.11.2010, vide receipt no.S0099466. As per terms and conditions of the agreement, the OPs are to develop and construct the flat within 24 months from the date of agreement with a further grace period of six months and the physical possession of the flat is to be offered and delivered after completing the all development work to the complainant by the OPs within 24 months of the agreement with a further grace period of six months. OPs had failed to develop and construct the abovesaid flat and building till to date despite various requests made by the complainant to the OPs. OPs had lingered on the development and construction of the building and flat and OPs had failed to develop/construct the abovesaid flat till date and further had failed to handover the possession of the flat in question after completing its whole construction/development.  As per terms and conditions of the agreement, the OPs are to pay Rs.5/- per sq. feet i.e. Rs.53.82/- per sq. meter per month as compensation for the delay caused in construction/completion of the flat and for the delay caused in delivering the physical possession of the flat in question after complete development within the stipulated period of 24 months and further the grace period of 6 months. Complainant visited the office of OPs no.1 to 3 and requested to handover the physical possession of the flat in question after completing the construction work and whole development of the project and further to make payment of damages alongwith compensation as per the terms and conditions of the agreement but to no effect.  In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to handover the physical possession of the flat in question after completing the construction and all development work, to pay Rs.7,25,000/- as compensation calculated @ 5/- per sq. feet per month as per the terms and conditions of the agreement and further compensation till delivery of the physical possession of the flat, in case OPs fails to develop and deliver the flat in question then OPs be directed to fund the amount of Rs.3,46,277/- alongwith interest @ 24% from the date of deposit till payment and to pay Rs.5,00,000/- on account of harassment, mental agony and litigation expenses.

2.             On notice, OPs no.1 to 3 appeared and filed its written version raising preliminary objections with regard to maintainability; limitation; cause of action and concealment of true and material facts. On merits, it is pleaded that complainant booked a flat on 20.09.2010 in the project of the OPs and paid an advance of Rs.1,70,922/-. Complainant has provisionally allotted a flat no.B-118F. The basic price of the flat is Rs.16,67,000/-. Complainant had opted for the construction linked plan for the purpose of making the payment of the installment against the said booking. OPs had sent flat buyer agreement and same had been executed between the parties on 12.11.2010. It is further pleaded that as per payment plan, complainant has been a persistent defaulter in making the payment in compliance of the payment plan opted. It is further pleaded that non-completion of the project was beyond the control of the OPs and these facts were always in the knowledge of the complainant. The global recession caused scare cash liquidity, availability of material required for construction, man power and other resources imperative to carry the project which resulted in delay in completion of the project. It is further pleaded that complainant is permanent resident of Karnal and has booked residential flat in the housing project of the OPs. The complainant is making an investment in real estate for commercial purpose. Hence the complainant is not maintainable. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OPs no.4 to 13 did not did not appear despite service and opted to be proceeded against exparte, vide order dated 06.10.2021 by the Commission.

4.             Parties then led their respective evidence.

5.             Complainant has tendered into evidence his affidavit Ex.CW1/A, copy of agreement Ex.C1, copy of payment receipt dated 20.09.2010 Ex.C2, copy of demand note dated 16.10.2010 Ex.C3, copy of payment receipt dated 10.11.2010 Ex.C4, copy of price list Ex.C5, copy of email dated 09.10.2020 Ex.C6 and closed the evidence on 11.01.2022 by suffering separate statement.

6.             Learned counsel for the OPs no.1 to 3 has tendered into evidence affidavit of Madan Dogra Ex.OPW/A, copy of resolution Ex.OP1, copy of application form Ex.OP2, copy of agreement Ex.OP3 and closed the evidence on 22.08.2022 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant booked a flat in the project of the OPs no.1 to 3. At the time of launching their project, the OPs had promised that the project must be completed within 24 months from the date of agreement with a further grace period of six months. Complainant paid a sum of Rs.3,46,277/- in two installments.  He further argued that  OPs had not completed the development work and construction of the flat on the spot within stipulated period. Complainant approached the OPs and requested to deliver the physical possession of the flat after completion of the development work or to refund the amount deposited by him with interest but OPs did not do so and lastly prayed for allowing the complaint. Learned counsel of complainant has placed reliance on the case law titled as M/s Pyaridevi Chabiraj Steel Pvt. Ltd. Versus National Insurance Company Ltd. and 3 Ors. in Consumer Case no.833 of 2020 decided on 28.08.2020; Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022.

9.             Per contra, learned counsel for OPs no.1 to 3, while reiterating the contents of written version, has vehemently argued that as per the terms of construction linked payment plan, complainant himself is in default of making in payment. He further argued that non-completion of the project was beyond the control of the OPs and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, complainant had booked the flat bearing no.B-118 F in the project of the OPs and in this regard flat Buyer Agreement was executed on 12.11.2010. It is also admitted that the total sale consideration of the flat was Rs.16,67,000/-. It is also admitted that complainant deposited an amount of Rs.1,70,992/- on 20.09.2010 and Rs.1,75,285/- on 10.11.2010.

12.           As per clause 9(a) of the Flat Buyer Agreement Ex.OP3 dated 12.11.2010, the construction work of the flat was to be completed within 24 months from the date of commencement of agreement with a grace period of six months but OPs have neither completed the project as per the schedule mentioned in the flat buyer agreement nor refunded the amount deposited by the complainant.

The clause 9(a) of the Flat Buyer Agreement is reproduced as under:-

“The developer shall endeavor to complete construction of the flat within twenty four (24) months from the date of commencement of construction on the individual plot on which the flat is located with a grace period of six (6) months, after receipt of all requisite approvals as may be required for commencing and carrying on construction, subject to force majeure, restraints or restrictions from any courts/authorities, circumstances beyond the control of the Developer and subject to timely payments by the Buyers. For the purposes of this clause/agreement the date of submission of application with the competent authority for obtaining completion/part completion/occupancy certificate in respect the Scheme shall be reckoned as the date of completion of the Flat for the purpose of this clause/agreement. No claim by way damages/compensation shall lie against the Developer in case of delay in handing over possession on account of any of the said reasons and the period of construction shall be deemed to be correspondingly extended/date of booking whichever is later”.

13.           As per clause 9(c) of the Flat Buyer Agreement, the developer shall pay to the Buyer compensation @ Rs.53.82 per sq. meter or @ Rs.5/-sq. ft. of the Super built-up area of Flat per month for the period of delay.

The clause 9(c) of the Flat Buyer Agreement is reproduced as under:-

“In case of delay in construction of the flat beyond the period, as stipulated, subject to force majeure and other circumstances as aforesaid under clause 9(a), the Developer shall pay to the Buyer compensation @ Rs.53.82 (Rupees Fifty three and paise eighty two) per sq. mtr. or @ Rs.5.00 (Rupees five only) per sq. ft. of the Super Built-up area of flat per month for the period of delay. Apart from the said compensation the Developer shall not be liable to any other compensation/damages for the period of delay in offering possession. Likewise, if the Buyer fails to settle the final account and to execute sale deed and take possession of the flat within 30 days from the date of issue of the final call notice/offer to handover possession, the Buyer shall be liable to pay to the Developer holding charges @ Rs.53.82 (Rupees Fifty three and paise eighty two) per sq. mtr. or @ Rs.5.00 (Rupees five only) per sq. ft. of the Super Built-up area of flat per month on expiry of 30 days notice and shall also become liable to pay any charges, levies, taxes and maintenance charges in respect of the flat irrespective of the fact that the Buyer has not been in enjoyment of the same”.

 

14.           Admittedly, OPs have neither completed the construction work nor offered/handed over the physical possession of the flat within stipulated period. Hence, it has been proved on record that OPs have not completed the construction work at the site within stipulated period. Complainant cannot be made to wait indefinitely for the delivery of the possession. In this regard we are relying upon the following authorities:-

15.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

16.           During the pendency of the present complaint, OPs had  sent a cheque of Rs.3,46,277/- to the complainant of deposited amount through registered post. Said cheque was received by the complainant under protest and same was presented in the bank but same could not be encashed due to insufficient fund. Thereafter, complainant had filed complaint under section 138 of Negotiable Act before Civil Court. Upon the notice, OPs had paid the abovesaid amount through Demand Draft on 08.12.2022 and same was accepted by the complainant under protest as interest upon the deposited amount had not been paid by the OPs. Thus the said intention of the OPs was not fair.

17.           Before pronouncing the order, learned counsel for the complainant placed on file, copy of order dated 26.11.2022, passed by DCDRC, Kurukshetra, in case titled as Pawan Kumar Vs. M/s Parsvanath Developers Ltd. (i.e. OPs). In the said complaint, complainant Pawan Kumar also booked the flat in the same project of the OPs in the year 2010 and paid Rs.3,61,441/-. The matter had been compromised between the parties and OPs had paid Rs.9,50,000/- as full and final settlement. Learned counsel for the complainant submits that atleast present complaint may kindly be decided as per above settlement.

18.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint and conduct of the OPs, we are of the considered view that act of the OPs no. 1 to 3 by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice.

19.           Complainant had deposited the earnest money in the year 2010. OPs had refunded the said amount in the year 2022. The OPs have enjoyed the hard earned money of the complainant more than twelve years. Thus, the complainant is entitled for interest on the deposited amount i.e. Rs.3,46,277/- alongwith compensation on account of mental agony, harassment and litigation expenses.

20.           In view of the above discussion, we allow the present complaint and direct the OPs no.1 to 3 to pay interest @ 12% per annum on the deposited amount i.e. Rs.3,46,277/- from the date of deposition till 08.12.2022 (i.e. date of payment of deposited amount). We further direct the OPs no.1 to 3 to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. The complaint qua OPs no.4 to 13 stands dismissed. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance

Dated:06.04.2023.                                                                  

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member