Haryana

Panchkula

CC/135/2015

ishwar chand bhalla&another - Complainant(s)

Versus

M/s parsvnath developers ltd &another. - Opp.Party(s)

SATYAWAN AHLAWAT.

16 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                      

                                                             

Consumer Complaint No	:	135 of 2015
Date of Institution	:	25.07.2015
Date of Decision	:	16.11.2015

1.       Ishwar Chand Bhalla son of lae Shri Ved Parkash,

2.       Smt.Usha Bhalla wife of Shri Ishwar Chand, Bhalla

          Both residents of Flat No.204, GH-41, Sector 20, Panchkula

 

                                                                                        ….Complainants

Versus

 

1.       M/s Parsavnath Developers Ltd., 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its authorized signatory.

2.       M/s Parsavnath Developers Ltd., Parsvnath Royale Sector-20, Panchkula through its authorized signatory.

                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr. Dharam Pal, President.

              Mrs. Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

 

For the Parties:     Mr.Satyawan Ahlawat, Advocate for complainants. 

                             Mr.Amardeep Sharma, Adv., for the Ops

.

 

ORDER

(Dharam Pal, Presi­dent)

1. The complainants have filed the present complaint against the Ops with the averments that they booked a flat No.T-2, 104 in the project of Ops i.e. Parsavnath Royal, Panchkula on the assurance of Ops and the price of the flat was fixed at Rs.57,85,000/- and a buyer agreement dated 29.03.2011 was also executed amongst the complainants and Ops. After that, the complainants paid the valuable consideration and subsequent installments on time i.e. Rs.50,55,785.99 to the Ops. As per the clause No.10 (a) of Buyers Agreement the construction of the flat was likely to be completed within 36 months with a grace period of six months but after passing of four years the possession of the flat has not been delivered despite receiving of more than 80 % of the total sale consideration. It is further averred that as per clause 10 (c) of the Buyers Agreement dated 29.03.2011 in case delay in construction of the flat beyond the period, the Ops/Developer will have to pay an amount of Rs.5/- per sq.fet of the super area of the flat per month for the period of delay. The Ops had to complete the construction till September, 2014 but they failed to abide by the terms and conditions of the Buyers Agreement. The complainants have booked the averred flat for their own residence after availing loan from financial institution on higher rate of interest but due to the fault of the OPs the complainants are facing hardship on both accounts as they are paying interest on the loan besides paying rent. The complainants visited the OPs many times and requested for possession of flat but they did not give any satisfactory reply. This act of the OPs amounts to deficiency in service and unfair trade practice on their part. In evidence the complainants have tendered affidavit Annexure CA and documents Annexure C1 & Annexure C2.
2. The Ops appeared before this Forum and filed their joint written statement by taking some preliminary objections and submitted that the Flat Buyer Agreement imposed rights and liabilities both on the complainants and Ops which based on terms and conditions agreed and executed between the parties. The relevant clause of Flat Buyer Agreement is as under:-

“Clause 5 (a) – Timely payment of the installment/amount due shall be the essence of this Agreement. If payment is not made within the period stipulated and or the buyer commits breach of any of the terms and conditions of this Agreement, then this agreement shall be liable to be cancelled. In the eventuality of cancellation earnest money being 15 % of the basic price would be forfeited and the balance, if any, would be refundable without interest. On cancellation of the agreement, the buyer shall also be liable to Developers towards the booking of the flat. In any case, all the dues, whatsoever, including interest, if any, shall be payable before taking possession of the Flat”.

“Clause 10 (a)- Construction of the flat is likely to be completed within a period of thirty six (36) months, of commencement of construction of the particular Block in which the Flat is located or the date of booking whichever is later, with a grace period of six (6) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt, Civil aviation Deptt, Traffic Dept, Pollution Control Deptt, as may be required for commencing and carrying on construction. The construction period shall be subject to force majeure, restrains or restrictions from any courts/authorities, non availability of building materials, disputes with contractors/work force etc and circumstances beyond the control of the Developer and subject to timely payments of 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 any such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Tower shall be treated as the date of completion of the Flat for the purpose of this clause/agreement.

Clause 10 (c) – In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under sub-clause (a) above, the Developer shall pay the Buyer compensation @ Rs.53.80 per sq. Meter @ Td.5 per sq. ft of the super area of the Flat per month for the period of delay. Likewise if the Buyer …………”

 

It is submitted that in Flat Buyer Agreement, the date of final construction of the Flat of which the possession was to be delivered to the complainants, was not fixed. It is submitted that as per clause 10(a) of the Flat Buyer Agreement, the time period of construction should be 36 months from the date of commencement of construction of the particular block in which the flat was located with an additional grace period of six months. It is submitted that after approval of building plan and other approvals required for commencing construction, the Ops commenced construction of the block in which the flat was located and was aiming to complete the construction in as per the projected schedule, however, global recession which had hit the market/economy in the year 2009 which affected the real estate sector of India to a large extent. It is submitted that despite the difficulties, the Ops continued the construction of the flat and super structure of tower in which the flat of complainants was located, has been completed. It is submitted that non-completion of the project was beyond the control of the Ops and that fact was in the knowledge of the complainants. It is denied that the Ops have committed a breach of the terms and conditions of Flat Buyer Agreement. It is submitted that the delay in completion of the project was not intentional and was due to global recessions whose effect is still continuing.  The superstructure of the construction of tower in which the Flat of the complainants situated is complete and the internal plaster of the said tower is going on in full swing.  In any case, for any delay this being caused in completion of the Project would be duly compensated at the time of delivery of possession of the flat to the complainants. Moreover, the complainants were well aware of the delay in completion of the project is due to global recession and not in the hands of Ops. It is submitted that the complainants were assured that in all circumstances, the interest of the complainants because of delay in handing over the possession of the flat should be taken care in accordance with clause 10 (c) of the flat buyer agreement, at the time of delivery of possession of flat. It is denied that the complainants were threatened.  The complainants are persistent defaulters and  have failed to make the payments on time despite demand notice and reminders dated 05.09.2012, 09.12.2013 and 07.01.2014. Thus, there is no deficiency in service and unfair trade practice on the part of Ops. Other pleas made in the complaint have been controverted and lastly prayer for dismissal of the complaint with costs has been made. In evidence, the Ops have tendered affidavit and documents Annexure RA, Annexure R1 to Annexure R5.  

3. We have heard the learned counsel for the complainant and learned counsel for the Ops and have gone through the case file carefully and minutely.
4. It is admitted case of the Ops that the complainant have paid the amount of Rs.50,55,785/- with regard to the flat No.T-2, 104 in the project by the name and style of Parsavnath Developers. As per the case of the complainant, they have paid more than 80 % of the total cost. Though the Ops have accepted that the demand notice and reminders dated 05.09.2012, 09.12.2013 and 07.01.2014  were sent to the complainants in terms of the payment plan adopted by them and the payment is still due. Learned counsel for the complainants has argued that it has not been brought into their knowledge that the license for development of the land on which the project is situated was in the name of M/s Samar Estates Pvt. Limited and the Ops have acquired the development and construction rights of a group scheme and exclusively agreed to sell the unit to the complainants.  It has been further argued that Clause 10 (a) of the agreement is not applicable to the present case as once the construction has been claimed to be in progress and was aiming to complete, therefore, the construction must have been completed in 36 months i.e. by September, 2014 including the grace period of six months.  Learned counsel for the complainant has further argued that no construction work is in progress on the site. The complainants have not committed default rather it were the Ops which failed to provide the necessary documents and even the Ops have gone beyond by issuing the impugned cancellation.
5.  Per contra, it has been argued by learned counsel for the Ops that Flat Buyer Agreement imposed rights and liabilities on both the parties as depicted in Clause 5 (a), Clause 10 (a) and Clause 10 (c). However, global recession which has hit the market economy in the year 2009 which effected the Real Estate Sector of India to a large extent. The complainants had committed defaults in making the payments on time. The Ops have never breached any terms and conditions of Flat Buyer Agreement as the delay in completion of the project was not intentional and was due to global recessions.  The complainants were fully aware about the status of the project.
6. We carefully considered the above arguments but we are not impressed with the submission made by the Ops.  The application form Annexure R1/2 provided by the OP No.1 for booking of flat in question reveals that it does not mention that the licence for development of the land was obtained by OP No.3 and this fact came into the knowledge of the complainants at the time of executing the Flat Buyer Agreement Annexure C1.  Moreover, the Ops No.1 & 2 have not mentioned regarding execution of any agreement between Ops and M/s  Samar Estate Pvt. Limited at the time of inviting application for booking of the flat that the licence for development for the said land is with M/s Samar Estate Pvt. Ltd. The Ops have failed to produce any document to prove that the super structure of tower in which the flat of the complainants was located has been completed. Learned counsel for the Ops have failed to produce on the case file any evidence or document to show that this point was brought to the knowledge of the purchasers from the very beginning.  The Ops have also not produced even single letter/document which could show that the construction has been completed to the level of the installment/payable demanded by the Ops in support of their demand.  It is strange in the pleadings the OPs have claimed that the construction is aiming to complete as super structure of the tower where the flat of the complainants is situated but till today the Ops could not complete the projects in which the residential flat was booked by the complainants within the stipulated period.  It is settled principle of law that he who seeks equity must do equity with others but in the present matter the Ops have not acted as per law rather violated the provisions of CP Act because on one hand they have not disclosed all the material information to the complainants/purchasers but on the other hand they have also cancelled the flat booked by the complainants as evident through Annexure R5 and Annexure R6. Other surprising factor which this Forum has noticed that the Ops have not stated the date of final construction of the Flat of which the possession was to be delivered to the complainants. From the above it is clear that they started the construction according to their own sweet will and utilize the money received from the purchasers for the other purposes. On the other hand the Ops No.1 & 2 have submitted that super structure of tower in which the flat of complainants was located  has been completed. But no such document have been placed on file. The complainants had booked the flat on 29.03.2011 under the impression that the possession of the flat would be delivered within stipulated period. The contentions of OPs that the complainants were defaulter in not making the payment in time is not tenable. From perusal of the demand notes issued by Ops there is no mention about the status /report of the project for which the complainants were liable to pay. Only they simply showed outstanding/ payment of over dues to be paid by the complainant. Perusal of the material available on the case file reveals that the Ops were not the registered owners of the land on which the flat was booked but it is strange that as to why they had booked the flat and received money from the purchasers. The defence taken by the Ops is that it was a global recession that hit the India economy and for this reason they could not go ahead with the construction. He has referred to it as force majeure but the Ops have not produced any data to show that there was a global recession in the Indian market and if so to what extent. In such situation, it cannot be held that the Ops were in any case affect any recession in the global economy during the relevant period. It is clear case of unfair trade practice. We are, therefore, left with no option but to hold that the Ops have been highly unreasonable in not handing over the possession of the flat to the complainant within a reasonable period of time and even they have gone one step ahead by cancelling the booked flat of the complainants.
7.  Vide Clause 10 (a) Construction of the flat is likely to be completed within a period of thirty six (36) months, of commencement of construction of the particular Block in which the Flat is located with a grace period of six (6) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt, Civil aviation Deptt, Traffic Dept, Pollution Control Deptt, as may be required for commencing and carrying on construction. The construction period shall be subject to force majeure, restrains or restrictions from any courts/authorities, non availability of building materials, disputes with contractors/work force etc and circumstances beyond the control of the Developer and subject to timely payments of the Flat Buyers. It is admitted case that the Ops failed to complete the construction within the aforesaid time. As per statutory approvals are concerned, the same were to be obtained by the Ops and the complainants cannot be held responsible for any delay in granting of such approvals, though, it is not the case of opposite party that the construction could not be completed for want of aforesaid statutory approval. The case of the opposite parties is that the project could not be completed on account of recession in the real estate market  and default on the part of the complainant in making the timely payment.  The terms of agreement between the parties do not justify the delay in completion of the project on the aforesaid grounds and therefore, the opposite party was duty bound to complete the construction irrespective of recession in the market, and alleged default on the part of some of the allottes in making timely payment. This is not the case of the opposite parties that the construction could not be completed due to any restriction from any court/authority or due to non availability of building material. If some of the allottes had not made timely payment, it was for the opposite party to arrange the requisite finance either by taking loan or from its own resources or by liquidating inventory at a lower price, therefore, the delay in completion of the project cannot be justified. 
8. Since the opposite party could not complete the project in which the residential flats were booked by the complainants either within the agreed time of 36 months or even within the reasonable time thereafter, and even today the projects are nowhere near completion, the complainants are entirely justified in seeking relief as mentioned in flat buyer agreement. Moreover this Clause has been drafted in a manner having potential to mislead the prospective flat buyer not confirming till date any firm date of handing over of the possession of the flat amount to deceptive practice which falls within the meaning of unfair trade practice as defined under the CP Act. The Ops should have given firm date of handing over possession at the time of taking of booking amount itself. But by not indicating the true picture with regard to their project to the complainants the Ops induced them to part with their hard earned money, which also amounts to unfair trade practice. Before we conclude, we must record our disapproval of the manner of conduct exhibited by the OPs in the matter of causing unjustified delay in delivering the possession of the flat to the complainant and further also in the matter of making pleadings based upon apparently indefensible foundational premise. Though the adjudication of this complaint is on the merits of its own, it is a matter of public knowledge that instances are available aplenty wherein the builders have been proved to have taken the flat applicants for a ride, on one pretext or the other. There are reports in the print-media from time to time that such like aberrant builders are getting burdened with damages etc. at the hands of the consumer dispensation. It is time the builders community realizes that any delay in delivery of a habitable flat causes emotional as also economic trauma to the persons who has booked it. There could be no worse exemplification of a un-business like act than the OPs having gone in for booking even before the necessary approvals for the project etc. had been obtained. The complainants have fully proved on the case file that the Ops had violated the provisions of CP Act by leading cogent and reliable evidence, therefore, the complaint deserves acceptance. It has been held by the Hon’ble National Commission in Sahil Indian Commercial Corporation Ltd. vs. C.Madhu Babu- II (2011) CPJ 3 (NC) that Consumer Fora have to consider relief in the light of the written agreement and it is not open to them to add or subtract any condition or words. In the instant case, there is a specific clause that in case the offer of possession by company is not made by due date, due to any reason not beyond the control of the company then the company shall be liable to pay to the allottee as compensation Rs.5/- per sq. ft. of the super area of the flat per month for the period of delay till the date of possession. In view of the specific clause we feel that the complainant is not entitled to any interest on the amount of Rs.50,55,785.99/- paid by them. However, the complainants are certainly entitled to get the payment to be calculated @ of Rs.5 per sq. ft. per month of the super area of the flat till the date of offer of possession. Out of the said amount the Ops shall pay the due amount till the date of this order to the complainants and the remaining amount shall be adjusted/paid at the time of full and final payment. We feel that the complainant is also entitled to compensation for resultant mental and physical harassment and cost of litigation.
9.  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 make the payment of an amount of Rs.5/- per sq. ft. per month of the super area to the complainants after expiry of 36 months from the date of execution of Flat Buyer Agreement i.e. 29.03.2011 till the date of handing over the possession. However, the total due amount under this head calculated till the date of this order shall be paid by the Ops to the complainants within a period of one month of getting the certified copy of this order and the remaining amount shall be adjusted/ paid at the time of handing over the possession of the flat to the complainants.

(ii)     To make payment of an amount of Rs.1,00,000/- to the complainants as compensation for harassment and deficiency in service.

(iii)    To make the payment of Rs.11,000/- for litigation expenses.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.i above with the interest @ 12% per annum from the date of filing of the complaint till realization  besides complying with the directions at serial No.1 and 3 above. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

Announced

16.11.2015 S.P.ATTRI          ANITA KAPOOR                   DHARAM PAL

                     MEMBER           MEMBER                      PRESIDENT

 

 

 

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                            

                                                DHARAM PAL                                                                                         PRESIDENT