Delhi

New Delhi

CC/684/2015

Rajiv Khanna - Complainant(s)

Versus

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

27 Oct 2021

ORDER

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.684/2015                                                      

In the matter of:

 

            Ranjiv Khanna,

            S/o. Late Shri Nand Lal Khanna,

            R/o. 1899, 1^st and 2^nd Floor,

            Main Road, Chandni Chowk,

            Delhi.                                                                                     ……..COMPLAINANT

 

Versus

 

M/s. Parsvnath Developers Ltd.,

Through its Director,

6^th Floor, Arunchal,

19-Barkhamba Road, New Delhi.

 

Also at M/s. Parsvnath Developers Ltd.,

Parsvnath Metro Tower,

Shahdara, Delhi-110032.                                                  ……..OPPOSITE PARTY

 

Quorum:

Ms. PoonamChaudhry, President

            ShriBariqAhmad  Hashmi, Member

            Ms. Nain Adarsh, Member

                                                                                                Dated of Institution :14.10.2015

                                                                                                Date of Order           : 27.10.2021

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CPA, 1986).The facts of the case in brief are that Opposite Party (OP) launched a  township scheme at Sonepat, Haryana offering residential plots. Complainant was induced by the advertisement of OP to apply for plot and made payment  of Rs,1,62,000/- on 18.08.2004 through a cheque bearing no.501785 dated 18.08.2004 drawn on Oriental Bank of Commerce at Delhi for a plot admeasuring 300 sq. yards @35,000/- per sq. yard.
2. It is further stated that the OP issued a letter dated 07.12.2005 acknowledging the complainant’s registration for allotment in “P&F Project” and  demanded further amount of Rs.3,78,000/-, to enlist the complainant’s name in the priority list for allotment. It is also stated that complainant made payment of Rs.1,00,000/- to the OP on 22.12.2005 by pay order dated 22.12.2005 and a further sum of Rs.2,78,000/- on 29.12.2005 by cheque no.829845 dated 29.12.2005 drawn on Oriental Bank of Commerce at Delhi. The complainant thus paid total amount of Rs.5,40,000/- to OP, but the OP despite receiving  the payment as demanded and additional payment for  priority listing, did not hand over the possession of the plot. It is  also alleged that the complainant visited the OP’s office several times and also wrote many letters to OP for handing over the plot and its registry
3. It is further stated that in response to the letters of complainant, the OP issued a letter on 10.09.2012 thereby acknowledging the payments by complainant and asked him to wait for further 6-8 months for the plot. The OP stated that the delay was due to the delay in grant of license from the government. It is also stated that despite considerable time having elapsed and OP failed to meet its promise. Thus, Complainant sent legal notice to respondent. It is also alleged that total amount of Rs. 5,40,000/-  has been paid by complainant to OP  by  December, 2005, and more than 10 years  have  elapsed  since then. The complainant is entitled to allotment of a plot. The Complainant is also entitled to Rs.15,37,000/- towards recovery of deposited amount with interest @18%.
4. It is also stated that complaint is within the period of limitation. It is further stated that this Forum has territorial jurisdiction as complainant and OP work for gain at New Delhi and the OP has its corporate office at Barakhamba Road, New Delhi. The claim has been filed with following prayers:-
   1. Pass an order directing the OP to allot a plot measuring 300 sq. yards in township scheme at Sonepat, Haryana, hand over the possession and to execute to the sale deed of the plot in favour of the complainant and,
   2. Direct the OP to make the payment of Rs.9,97,000/- (Rupees nine lakhs and ninety seven thousand only) to the complainant as detailed under para no.10 hereinabove and,
   3. Direct the OP to make the pendent-lite interest @18%  to the complainant till the allotment, possession and execution of the sale deed and actual realistion of the aforesaid payment and,
   4. Pass such other order/ orders, which this Hon’ble Court may deem fir and proper in the interest of justice.
5. OP filed written statement taking preliminary objections that the complaint is not maintainable as complainant is not a consumer  within the meaning of the CPAct, 1986. It was further stated that the present matter involves complicated questions of facts and law which need to be proved by detailed documentary evidence. It was also stated that proceedings of Consumer Courts are summary in nature, therefore it is imperative for the matter should be examined by the appropriate court of law.
6. It was also stated that the complaint is barred by limitation under Section 24 (A) of the CP Act. It was further stated that complaint has not been able to establish any deficiency of service which could be attributed to the OP. The complainant is guilty of concealment of material facts and therefore is not entitled to any relief. It was also alleged that complainant was a subsequent transferees of the registration and had opted for transfer of registration in his favour after being fully aware of the terms and conditions of the advance registration. It was also stated that interest @24% is not payable on the advanced amount as there is no agreement between the parties in this regard. It was further stated that rather complainant had undertaken as per clause (f) of the application form for registration that in case no allotment was made by the company, for any reason whatsoever, no claim of any kind shall be raised by the complainant. The said clauses also provides that advance money paid by the complainant would be refunded with the simple rate of interest @10% p.a.  It was also stated that the complaint is bad for misjoinder of parties as transaction took place between a corporate entity i.e. a company registered under the Companies Act and the complaint.
7. In the reply on merits, all the allegations made in the complaint were denied. It was denied that complainant was entitled to receive a sum of Rs.9,97,000/- from the OP or that OP is liable to pay interest till allotment: possession, execution of sale.
8. In the rejoinder to the written statement the complainant denied that he is not a consumer, or that he was engaged in the business of sale or purchase of plots, for earning purpose. Both the parties have filed their evidence by affidavit.

 

9. We have heard the Ld. Counsel for the parties and perused the record. Both the parties have filed copy of the registration form, according to it the advance amount was to be adjusted against the booking amount payable by allottee. It further provides that in the event the residential plot is allotted after nine months simple interest @10% p.a. shall be paid for the period of delay beyond nine months till such time the allotment is made. The residential plot was to be allotted within the period of six months. It also provides that in case the developer failed to allot the plot within the period of one year from the date of payment, the allottees would have the option to withdraw the money by giving one month notice. It also provides that the developer shall make allotment but in case it fails  to do so for any reason whatsoever, no claim of any nature, monetary or other would be raised  by allottee except that the advance amount to be refunded with  simple interest @10% p.a.
10. As regards the objection of limitation taken by the OP it is to be noted that complainant has stated in para-8 of the complaint that the respondent had issued a letter dated 03.01.2014 stating therein that allotment of plot may take 6-8 months. The OP in its written statement stated para-8 of the complaint is a matter of record.
11. It is to be noted that Section 24 (A) of the CP Act, 1986, provides that the period of limitation for filing complaint is two years from the date on which cause of action has arisen. The complaint has been filed in 2015, from the letter dated 03.01.2014 of OP. Thus we are of the view that the cause of action being the continuing one as the amount advanced by Complainant was not refunded neither the plot was allotted to him, the complaint is within the period of limitation. It is also pertinent to note that complainant sent a legal notice to the OP dated 25.03.2015 but no reply to the same was given by OP.
12. As regards the objection taken by OP that complainant is not a consumer within the meaning of Consumer Protection Act. we are of the view that no evidence was brought on record by OP to show that Complainant booked the plot for business in real estate. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.” Thus as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
13. We are further of the view that there has been delay in handing over the possession of the plot to complainant. It is the case of complainant that he has waited for more than ten years for the allotment of the plot and is to be noted that the advance registration form dated 18.08.2004 provides that plot was to be handed over within 6 months. As regard the delay caused by developer in allotment/handing over possession, Hon’ble Apex Court has held in Kolkatta West International City Pvt. Ltd. Vs. Devasis Rudra, II(2019) CPJ 29 SC,as under:

“……It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was receivedon 29.March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.”

14. It is also to be noted, one of prayer of the Complainant is for allotment of a plot and execution of sale deed by OP in his favour. Ld counsel for OP submitted during the course of oral argument that plot in question was not available. The Ld. Counsel for OP also stated that the complainant had paid Rs.5,40,000/- as such, the complaint was not entitled to refund of Rs. 9,97,000/-. We have perused the copy of receipts filed by the complainant dated 18.08.2004 of Rs.1,62,000/- receipt of Rs.1,00,000/- dated 22.12.2005, the receipt of Rs. 2,78,000/- dated 29.12.2005. Ld. counsel for OP submitted that vide letter dated 07.12.2005 the complainant was informed that with reference to the allotment of his plot he would be shortly offered the residential plot in the proposed township and was asked to remit Rs.3,78,000/-  by 22.12.2005. The complainant however, made the payment of the said amount after 22.12.2005 i.e. on 29.12.2005. The Ld. Counsel for OP also stated that OP was not liable to refund amount of Rs.9,97,000/- claimed by complainant since complainant had paid Rs.5,40,000/- only till the filing of the complaint. As regards the said contentions of Ld. Counsels, we are of the view that the registration form provides payment of interest @ 10% p.a. for delay on part of OP in allotment.
15. We are of the view that OP did not allot the plot nor refunded the entire amount deposited by the Complainant till date which amounts to deficiency in services. We thus, hold that OP is guilty of deficiency in services. We accordingly direct OP M/s. Parsvnath Developers Ltd. to refund the amount of Rs.5,40,000/- to the complainant with interest @10% p.a. from the date of deposit  till realization within a period of two months. In case of delay in the payment beyond two months the OP is directed to pay interest @12% p.a. from the same period.
16. We also direct OP to pay a sum of Rs.25,000/- as compensation towards harassment, mental agony and pain and further amount of Rs.5,000/- as cost of litigation. The order be complied within the period of  30 days of the receipt of the copy of the order.
17. A copy of the order be uploaded on the confonet website (www.confonet.nic.in) and also supplied to all the parties/ Ld. Counsel  free of cost. File be consigned to record room.

Announced in Open Commission on 27.10.2021.

 

 

 

(Poonam Chaudhry)

                                                                                                  President

 

 

 

                                                    (Adarsh Nain)                                                                 (Bariq Ahmed)

                                                            Member                                                                          Member