Delhi

North East

CC/70/2022

Sameer Pradhan - Complainant(s)

Versus

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

08 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.70/22

In the matter of:

	Sameer Pradhan, R/o 664, Indira Nagar, Phase II, Dehradun, Uttrakhand 248006   Presently residing at: Flat No. 150/502, Sekhon Vihar, Prahladpur, Delhi Cantt., Delhi 110010	Complainant
	Versus
	M/s Parsvnath Developers Ltd., Through its Managing Director, At its registered and corporate office at: Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi 110032	Opposite Party

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                         DATE OF ORDER  :

22.03.2022 18.08.2023 08.11.2023

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Membe

ORDER

Surinder Kumar Sharma, President

The Complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Complainant approached the Opposite Party to buy a flat in its grand housing project at Rajpura near Chandigarh names as “Parsvnath Castle”. It is his case that Opposite Party assured the Complainant that this project was the best project and possession would be handed over within stipulated period i.e. 36 months. It is his case that on assurance of the Opposite Party to timely delivery of possession, Complainant booked a 3 BHK flat bearing no. T-7, 501, Parsvnath Castle, Rajpura, Chandigarh for the total consideration of  Rs. 23,30,342/-. The Builder Buyer Agreement dated 13.09.2008 was executed between Complainant and Opposite Party. It is his case that vide letter dated 02.06.2009, the tower of allotted flat was changed from T-7 to T-8. It is his case that in terms of Builder Buyer Agreement, Complainant made a total payment of Rs. 19,84,183/- to the Opposite Party on various dates. It is his case that as per Clause 10 (a) of Builder Buyer Agreement, the possession of the said property was to be delivered within 36 months from the date of commencement of construction. The Commencement date of construction was 20.08.2008 and accordingly the delivery of the possession was due on 19.08.2011. It is his case that he sent various letters and made many visits to the office of Opposite Party and held meetings with senior officials for delivery of possession of the said property but no action was taken. It is his case that he paid a sum of Rs. 19,84,183/- but the Opposite Party credited further amount to the deposited amount also as to make the amount of                       Rs. 23,30,242/- and issued letter dated 16.12.2016 and 10.08.2019 to this effect that “No Dues” as not amount is due and payable towards the purchase of the flat. It is his case that Opposite Party did not delivery the possession of the flat till date i.e. even after lapse of more than 11 years. Complainant vide letter dated 13.09.2019, decided to terminate/cancel the Builder Buyer Agreement because of inordinate delay in delivery of possession and accordingly called for refund on the entire paid/deposited amount with interest the date of payment but till date but Opposite Party did not refund any amount and made excuses on one pretext or other. Hence, this shows the deficiency of service on the part of Opposite Party. Complainant has prayed for refund of Rs. 19,84,183/- along with interest @ 12 % amounting to Rs. 26,19,121/-.  Complainant also prayed for Rs. 5,00,000/- on account of mental harassment and Rs. 1,00,000/- on account of litigation expenses.

Case of the Opposite Party

2. The Opposite Party contested the case and filed its written statement. It is stated that the Complainant has approached it for buying a flat and paid an amount of Rs. 19,84,183/- as booking amount. The Complainant was allotted flat no. 501, Fifth Floor, Tower T-7 for a basic price of Rs. 23,30,342/-. Buyer agreement dated 13.09.2008 was executed. It is stated that as per clause 8 (b) of FBA, allocation of flats or floors were subject to the final approval from Developer i.e. the Opposite Party. Vide letter dated 12.06.2009, the Opposite Party apprised the Complainant that there were certain changes in the layout plan and for this reason numbering of few flats/tower were being changed. Then the Opposite Party re-allocated a flat bearing no. 501, Tower No. T-8. It is submitted that as per clause 10 of the agreement the possession was to be handed over to the Complainant within the period of 36 months from the date of commencement of construction on receipt of building plan/revised building plans and approval from the concerned authorities. Further, it is submitted that the delivery of the possession was subject to force majeure clauses mentioned in the agreement. It is stated that the Opposite Parties started the construction were in the faced manner.
3. It is stated that due to the global recession, the economy of the world has badly affected the Real Estate sector. The various buyers stopped making payments in time. Due to the said reason, the Opposite Party was unable to complete the construction within the time. The said reasons were beyond the control of the Opposite Party. The Complainant was told that for the delayed period of possession the Complainant would be compensated in terms of clause 10 (C) of the Flat Buyer Agreement. It is stated that the Tower No. 6, 7 and 8 are completed and possession of the flats has been offered for fit out purposes. It is stated that special rebate of Rs. 3,43,545 /-  was given to the Complainant and the Complainant has agreed for the same and thus vide letter dated 10.08.2019, No Dues Certificate was given to the Complainant. The Opposite Party has denied the averments of the Complainant and has prayed for the dismissal of the complaint.  

Rejoinder to the written statement of Opposite Party

4. The Complainant filed rejoinder to the written statement of Opposite Party, wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertion made in the complaint.

Evidence of the Complainant

5. The Complainant in support of his complaint filed his affidavit wherein he has supported the averments made in the complaint.

Evidence of the Opposite Party

6. To support its case Opposite Party has filed affidavit of Mr. Ajay Kashyap, General Manager, wherein, he has supported the case of the Opposite Party as mentioned in the written statement.

Arguments & Conclusion

7. We have heard the Ld. Counsel for Complainant and Ld. Counsel for the Opposite Party. We have also perused the file and written arguments filed by the Complainant and Opposite Party. The case of the Complainant is that he has booked a flat with the Opposite Party for a total sum of Rs. 23,30,342/-.  Out of the said amount, he has paid an amount of Rs. 19,84,183/-. As per the case of the Complainant, the possession of the flat was to be given to him within 36 months of starting the construction. The construction was to start from 20.08.2008 and the possession of the flat was to be given to him by 19.08.2011. On the other hand, the case of the Opposite Party is that due to the recession in the global market the Real Estate was badly affected. It is the case of the Opposite Party that some buyers did not make the payment in time and due to the said financial reason the construction could not be completed within the stipulated period. It is the case of the Opposite Party that the Tower No. 6, 7 and 8 are completed and possession of the flats has been offered for fit out purposes. It is the case of the Opposite Party that special rebate of Rs. 3,43,545 /-  was given to the Complainant and the Complainant has agreed for the same and thus vide letter dated 10.08.2019, No Dues Certificate was given to the Complainant.
8. From the perusal of the file, it is revealed that the following facts are admitted:

1. That the Complainant had booked a flat with the Opposite Party for a sum of Rs. 23,30,342/-.
2.  That the Complainant has made payment of Rs. 19,84,183/- to the Opposite Party.
3. That Flat Buyer Agreement was executed between the parties.
4. That rebate of Rs. 3,43,545/- was given by the Opposite Party to the Complainant and No Dues Certificate was issued by the Opposite Party to the Complainant.  

9.  The case of the Complainant is that the possession was not given to him within the stipulated period of 36 months from the date of construction. The case of the Opposite Party is that the construction could not be completed for the reasons    i.e. recession in the global market, some buyers did not make the payment in time, pandemic of Covid 19 and the number of flat buyers was reduced etc.  The said grounds taken for the Opposite Party for not completing the construction within time are very vague and not supported by any cogent evidence to show that for the said reasons construction of the flats could not be completed in time. It is also important to note that the Opposite Party has brought nothing on record to show that the Complainant was ever informed regarding the said circumstances or that the construction work would not be completed within the stipulated period. Therefore, we are of the opinion that the Opposite Party has taken a false pretext/ground for not completing the construction work of the flat within the stipulated period.
10. As per the case of the Complainant as mentioned in para 7.5 of his complaint, the construction work was to start from 20.08.2008 and possession of the flat was to be given to him by 19.08.2011. In its reply to the said para, the Opposite Party has not specifically denied this assertion made by the Complainant. Nor it has mentioned that the construction was not to start from 20.08.2008. Nor it is stated in the written statement as to on which date the construction was to start. Further, the perusal of the written statement filed by the Opposite Party shows that the said written statement/reply has not been verified by the Opposite Party/by the person who has filed the written statement. Thus, this is not a proper written statement/reply in the eyes of law. The Opposite Party has filed evidence by way of affidavit of Mr. Ajay Kashyap. In his affidavit, the assertion of the Complainant that the construction work was to start from 20.08.2008 has not been denied. Therefore, under these circumstances and from the material on record it is prove that the construction work was to start from 20.08.2008 and the possession of the flat was to be given by 19.08.2011. The case of the Opposite Party is that the Complainant was offered for fit out possession of the flat in question. The perusal of the copy of the said letter shows that the flat was not complete and the said offer was subject to certain conditions and formalities and some clearances from the Competent Authorities. The perusal of the said offer reveals that it was nothing but eye wash as the flat in question was not complete and certain necessary permission were also to be given by the Competent Authorities. It has been discussed above that the Opposite Party has failed to give the possession of the flat in question to the Complainant within the statutory period.  
11. From the above discussion, it is clear that the Opposite Party has failed to deliver the possession to the Complainant within the statutory period i.e. by 19.08.2011 which is the violation of the agreement executed between the parties. Hence, there is deficiency of service on the part of the Opposite Party. The complaint is allowed. Complainant has paid Rs.  19,84,183/-. The last payment was made by the Complainant to the Opposite Party on 22.10.2008. Therefore, the Opposite Party is directed to pay Rs. 19,84,183/- along with interest @ 9 % p.a. from 22.10.2008 till recovery of the said amount. The Complainant has booked the flat and paid first installment on 20.08.2008. The Flat Buyer Agreement was executed on 13.09.2008. The construction work has not been yet completed even after lapse of more than 14 years. Under these circumstances compensation of Rs. 4,00,000/- on account of harassment etc. is to be paid by the Opposite Party to the Complainant along with interest @ 9 % p.a. from the date of this order till recovery. Opposite Party is also directed to pay Rs. 50,000/- to the Complainant on account of litigation expense along with interest @ 9 % p.a. from the date of this order till recovery.
12. Order announced on 08.11.2023.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Anil Kumar Bamba)	(Adarsh Nain)	(Surinder Kumar Sharma)
(Member)	(Member)	(President)