Delhi

StateCommission

CC/63/2016

MRS. SUSHEELA GUPTA & ANR. - Complainant(s)

Versus

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

VIBHOR GARG

16 Nov 2017

ORDER

 

 

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

 Date of Arguments :  16.11.17

Date of Decision :        27.11.17

 

Complaint No.63/2016

IN THE MATTER OF:

 

1. Mrs. Susheela Gupta

 

2. Mr. Ankur Gupta

Both at 2/7, Roop Nagar

Delhi-110007.                                                                         ……..Complainants

 

                                                                        Versus

 

1. M/s Parsvnath Developers Ltd.

 

2. Mr. Pradeep Kumar Jain

Executive Chairman

3. Mr. Sanjeev Jain

Managing Director

 

All at 6^th Floor, Arunachal Building

19, Barakhamba Road

New Delhi-110001.                                                                         ….Opposite Parties

 

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 complaint has been filed on the averment that complainant No. 1 is old lady who is a retired bank employee and complainant No. 2 is her son who is salaried employee. They booked plot No. B-0775 in proposed township of the Opposite Party namely “Parsvnath City” near Tau Devi Lal Park, Sonepat, Haryana with area of 500 sq. Yds.  In or about the year 2004-2005  OP came out with various advertisements and promotions in media and otherwise of their high end housing project with state of the art residential facilities and comforts and top quality construction. It was assured that construction would be on time bound basis.  Complainants gave application dated 11.02.05.  OP issued provisional allotment letter dated 30.06.06.  After lapse of about 10 years, plot and project are still not ready. Complainants paid Rs. 6,87,500/-through cheque at time of booking, Rs. 6,87,500/- through cheque dated 17.01.06, they further paid Rs. 5,91,032/- through cheque dated 06.07.06. Rs. 4,05,900/- was  paid through cheque dated 12.10.06.  Complainants have paid Rs. 31,83,732.- to the Ops.

2.         On 07.12.06 OP sent letter asking complainants to sign the Plot Buyer Agreement enclosed therewith.   On 27.12.06 OP demanded Rs. 2,70,600/- .  OP arbitrarily and unilaterally imposed additional charge of Rs. 6,13,032/- upon the earlier basic price thereby revising basic price to Rs. 23,71,932/- . OP failed to clarify as to what was the said additional charge.  It adjusted earlier payments made by complainants towards installment against additional charge. Since the letter contained threat of penalty of levying interest @ 24% per annum the complainants were forced to make the said payment through cheque. OP sent yet another letter dated 27.03.07 asking the complainants to make further payment of Rs. 2,79,600/- which was paid through cheque dated 15.04.07.  The said letter reflected levy of additional charge of Rs.6,13,032/-, another payment of Rs.2,70,600/- made on 15.07.2007 through cheque in pursuance of demand letter issued by OP. In all the complainants had paid Rs. 31,83,732/-  which comprised of basic price, preferential location charges, external development charges and infrastructure development charges.

3.         OP issued letter dated 19.08.09 informing that plot offered to complainants had been changed, area had been tentatively increased to 523 sq. yds.  The plot has been renumbered as B-0595 instead of B-0775.  OP asked complainant to pay further sum of Rs.62,529/- on account of external development charges.  The allotment letter or Plot Buyer Agreement did not allow or authorize additional charges.  Complainants were shocked to receive another letter dated 03.06.10 issued by OP calling upon them to pay a sum of  Rs.1,49,570/- on account of external development charges.  Complainants approached OP regarding levy of additional charges.  They were assured that OP would look into the matter.  No further communication was received during the last more than 5 years and complainants were made to understand that aforesaid letters stood withdrawn and no further payment was required to be made.

4.         To the utter surprise of the complainant a letter dated 10.03.15 came to be issued by the Ops asking the complainants to pay further a sum of Rs.3,50,179/-.  On 23.04.15 another letter was issued informing that said sum was outstanding.  Complainants wrote letter dated 01.05.15 asking for the details, likely date of handing over plot and status of development work like sewer, water, electricity and road etc. Instead of receiving any reply complainant received another letter dated 18.07.15 reiterating earlier demand failing which threat to cancel allotment and forfeit earnest money. The complainant wrote another letter dated 27.07.15 followed by reminder dated 07.09.15. On 03.10.15 OP again demanded the same amount and asked the complainant to visit site for status of development. The complainants found that project was seriously lacking in several aspects whereas several works had not been initiated even.  This means false and misleading representation, deficiency in service and unfair trade practices.  Hence this complaint for asking Ops to withdraw demand letters dated 23.04.15, 18.07.15 and 03.10.15.  It has also prayed that OP may be directed to refund entire sum of Rs. 31,83,732/- with interest @ 24% per annum for delay in handing over possession from the date of payment. Compensation for harassment and mental agony as well as cost of litigation has also been prayed.

5.         OP filed written statement raising preliminary objections that relief sought by the complainant is beyond the jurisdiction of Consumer Foras.  Complainant is resident of Delhi and booking of plot in Sonipat was merely for the purpose of gaining profit. OP No. 2 and 3 are not necessary parties. Limitation for filing complaint is two years and complaint is time barred.  Change of plot was in accordance with clause 5(a) of the agreement.  Interest cannot be awarded from date prior to institution of present proceedings or date of demand notice.  On merits OP denied that complainants are captured customers who become victims of deficiency in service and unfair trade practice.

6.         The complainant filed affidavit of complainant No. 2 in their evidence.  He reiterated the avernments made in the complaint.

7.         On the other hand OP has filed affidavit of Shri Madan Lal Dogra, Deputy General Manager which proceeds on the line of defence raised in WS.

8.         Both the parties have filed written arguments.  We have gone through the material on record and heard the arguments. 

9.         Objection of limitation cannot survive because cause of action in the case of possession is continued as per decision of National Commission in case of Satish Pandey III(2015) CPJ 440.

10.       Booking by the complainant and payments made by the complainants are not in dispute. The booking was done in 2005 and complaint was filed in 2016. Non-development of the plot and non fulfillment of the promise amounts to deficiency in service and unfair trade practice.

11.       OP/builder cannot unilaterally change the number of the plot or location of the plot as per decision of National Commission in DLF New Gurgaon Home Developers Vs. Hari Singh II (2014) CPJ 159.

12.       Regarding threats to forfeit earnest money it may be observed when construction work is not complete even till date, there can be no forfeiture as per decision of National Commission in Kavita Ahuja vs. Shipra Estate I (2016) CPJ 31.

13.       When the development work is not yet complete, there is no option but to direct refund of the amount with interest. The complainants cannot be compelled to accept possession after 10 years as per decision of National Commission in Emaar MGF vs. Dilshad Gill IIII(2015) CPJ 329.

14.       However interest claimed by the complainant is on the higher side. In the present scenario interest @ 12% per annum would be fair enough so as to include compensation and litigation charges also.  This is again as per decision of National Commission in Satish Pandey vs. Unitech Supra.

15.       Regarding the objection of OP that sale of plot is not covered under Consumer Protection Act,  it may be mentioned that OP has not given complete citation of decision  in Ganesh Lal vs. Shyam  as provided copy thereof.  Rather Hon’ble Supreme Court in the case of  Narne Construction Vs. GOI (2012) 5 SCC 359 held that agreement to develop raw land into plots , construct  road, sewage, provide electricity etc. amount to service within the meaning of Consumer Protection Act and is covered under Consumer Protection Act.

16.       To sum up the complaint is allowed and Ops are directed to refund Rs. 31,83,732/- alongwith interest @ 12% per annum from the dates of respective payment till date of refund within 45 days from the receipt of copy of this order.  In the event of failure to do so complainant could be entitled to invoke section  25/27 of Consumer Protection Act.

            Copy of the order be sent to both the parties free of cost.

 

(ANIL SRIVASTAVA)                                                                                       (O.P.GUPTA)

MEMBER                                                                                                         MEMBER(JUDICIAL)