Delhi

StateCommission

CC/517/2014

MRS. RANJANA TICKOO & ANR. - Complainant(s)

Versus

M/S PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

14 Nov 2017

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

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

                                                                    Date of Arguments:  14.11.17

          Date of Decision:      22.11.17

Complaint No. 517/2014

In the matter of:

1. Mrs. Ranjana Tickoo

W/o Mr, Arun Tickoo

 

2. Mr. Arun Tickoo

S/o Late Mr. Jagdish Narain Tickoo

 

Both resident of :

Toyota Parts

Saud Bahwan Automotive

 P O B, 3168 , Muscat

Oman, Ruwi-0112.                                                                             …Complainants

 

                                                                        Versus

 

M/s  Parsvnath Developerss Ltd.

Regd. & Corporate Office:

6^th Floor “Arunachal”

19 Barakhamba Road

New Delhi

 

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

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

SHRI O.P. GUPTA(MEMBER (JUDICIAL)

JUDGEMENT

          The case of the complainant is that they are NRI presently living in Muscat, Oman.  In August 2007 OP floated housing project in village Arthala, Pargana Loni, District Ghaziabad, UP. Prospective   buyers were assured that flats would be completed within 36 months of start of construction and would be handed over soon after remittance of final payment. Flat buyer agreement dated 30.08.07 for purchase of residential flat No.D1-303, 3^rd Floor in Tower D1 having approximately 1920 sq.ft. super built up area consisting of three bed room, drawing room, dining room, kitchen, three toilets, balconies etc. in complex named “Parsvnath Exotica”. The complainants agreed to pay price @ 2711.15 per sq. ft. of super built up area of the flat, which totals to Rs. 52,05,408/- .They paid Rs.45,20,488/- in two  installments of Rs.5,25,000/- and Rs.39,95,488.64.  The complainant took loan from HSBC on interest.   The period for completion expired on 30.07.10 but OP failed to hand over possession.  Complainants visited site of proposed construction in Nov. 2009 and were shocked to find that construction had not reached appreciable stage.  They requested for adequate compensation for delay vide letter dated 07.11.09.  OP vide reply dated 24.11.09 assured 5% additional rebate on basic price as compensation.  Complainant No. 2 gave application dated 04.11.10 for payment of compensation on account of delay.  The same was replied by OP vide reply dated 09.12.10. Thereby complainants  were further assured of additional rebate  of 3% over and above 5% rebate extended vide letter dated  24.11.09.  The complainant has reached age sr.citizen of 60 years on 05.08.14.  They were keen to settle permanently in above mentioned flat, on return to India.  OP is liable to pay interest @ 24% per annum which is equivalent to rate of interest demanded by OP in case of delayed payment. OP has caused financial loss to the tune of  Rs. 9,00,000/- on account of rental income calculated @ 25000/- p.m. w.e.f. Aug., 2011. He has sought compensation of Rs. 1,00,000/- on account of shock and mental agony.  Notice dated 05.09.14 was served to which reply dated 22.09.14 was received. Hence this complaint for refund of Rs. 45,20,000/-  with interest @ 24% per annum, loss of rental income and Rs. 25,00,000/- as compensation.

2.      OP filed WS raising preliminary objection that complainant being NRIs purchased a flat for commercial transaction and are not consumers.  Complaint is bad in misjoinder and nonjoinder.  Bank from which loan has been taken should have been made a party.  The case involves complicated questions on facts and law which need to be proved by detailed oral as well as documentary evidence.  Thus the same is beyond the jurisdiction of consumer forum where summary procedure is followed.  Clause 10(a) of flat buyer agreement stipulates that time is not essence of contract.  On merits it stated that averments made in the complaint are matter of record.  It denied allegations of sufferings, mental harassment and entitlement to claim interest @ 24% per annum.

3.      As compared to it OP filed evidence of Shri Madan Lal Dogra, Deputy General Manager (CRM).

4.      Both the parties have filed written arguments.

5.      We have gone through the material on record and heard the arguments.  The counsel for OP submitted that flats were being completed speedily and are likely to be handed over by April 2018.  The complainant submitted that having booked the flat in 2007, they cannot be compelled to accept the flat in April 2018.  In support of their submission they took shelter of decision of National Commission in Emaar MGF vs. Dilshad Gill III (2015) CPJ 329 where it was held that after six years complainant is not bound to accept possession.

6.      Simply because the case requires evidence and arguments, jurisdiction of the consumer court is not barred.

7.      Similarly simply because clause 10 (a) of flat buyers agreement provide that the time is not essence of the contract, it does not mean that OP can prolong completion till any period it likes.

8.      NRI can book flat as per decision of National Commission in Reshma Bhagat vs. Super Tech II (2016) CPJ 548.

9.      In CC No.19/11 titled as Surender Sinha Atwal vs. Parsavnath  decided on 11.05.16 National Commission granted only 10% per annum.

10.    To sum up OP is directed to refund Rs. 45,20,488/- with interest @ 10% per annum from the date of respective payment till the date of refund.

 

 

(ANIL SRIVASTAVA)                                                                                (O.P.GUPTA)

MEMBER                                                                                             MEMBER(JUDICIAL)