Haryana

StateCommission

CC/197/2017

SATISH KUMAR GUPTA - Complainant(s)

Versus

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

R.C.SHARMA

03 Dec 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  Case No.197 of  2017

Date of the Institution:31.03.2017

Date of Decision: 03.12.2018

 

1.      Satish Kumar Gupta

2.      Pradeep Kumar Gupta

3.      Raman Kumar Gupta

All sons of Mr. Chaman Lal Gupta, residents of Gali No.6, Shakti Nagar, Near LIC Officer, Derabassi, District S.A.S. Nagar, Punjab through their authorized person Sh. Arvinderjit Singh Chauhan son of Late Sh. Mohinder Singh Chauhan, resident of House No.136, Ph 3B, Mohali.

 

                                                                   .….Complainants

Versus

 

1.      M/s Parsvnath Developers Ltd., registered office at 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001, through its Managing Director.

 

2.      Incharge Site Office, Parsvnath Developers Limited at Parshavnath Royale, Sector-20, Panchkula.

 

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

 

Present:-    Mr.R.C. Sharma,  Advocate for complainants.

Mr.B.R.Madan, proxy counsel for Mr. Ashwani Talwar, Advocate for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          Complainants have filed complaint under the Consumer Protection Act, 1986 (In short “Act”) pleaded therein that complainants booked a 3 BHK flat bearing No.T4-102, 1^st Floor, Block No.T4  having an approx 1780 sq. ft. (equivalent to 165.36 sq. mtrs) of super built area of opposite parties (O.Ps.) The basic sale price of the flat was Rs.57,85,000/-. The complainants had deposited Rs.40,66,015/- including service tax to the O.Ps at different phases. Apartment Buyers agreement was executed between the parties on 30.05.2011. As per clause No.10 (a) of the agreement, the construction of the flat was to be completed within 36 (months) +6 months (grace period)=42 months therefrom, but, till date construction of the flats were not completed and possession was not delivered to him. The O.Ps. have committed the unfair trade practices and also cheated the complainants and other innocent people also. The complainants requested the O.Ps to refund the amount but till date O.Ps were not paid any heed to the request of the complainants. Hence under the constraint circumstances the complainants had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to make payment of a sum of Rs.40,66,015/- which had been deposited by the complainant alongwith interest @ 18% per annum from the date of deposit till realization and to pay compensation of Rs.2,00,000/- for mental agony and damages etc. and Rs.50,000/- as costs of litigation.

2.                Notice of the complaint was issued against the O.Ps. Several opportunities were afforded by the O.Ps to file reply and cost was also imposed upon the O.Ps, but they failed to file reply, so their defence was struck of vide order dated 22^nd March, 2018 and complaint was adjourned for recording evidence of O.Ps.

3.                When the complaint was posted for recording evidence of the parties, the complainants in their evidence has tendered the affidavit Ex.CA vide which they reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-16 and closed their evidence.

4.                On 17.09.2018, learned counsel for the O.Ps. sought adjournment for recording evidence on behalf of O.Ps. Similarly, today i.e. 03.12.2018 also adjournment was sought for the same purpose, but, learned counsel for complainants strongly opposed their request for adjournment. Hence, the request for adjournment is declined.

5.                The arguments have been advanced by Sh.R.C. Sharma learned counsel for the complainants as well as Mr.B.R.Madan, learned proxy counsel for Mr. Ashwani Talwar, Advocate for the O.Ps.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led by the complainants during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainants are entitled to get refund of the amount which they have already deposited alongwith the interest. 

7.                While unfolding the arguments it has been argued by Sh.R.C. Sharma, Advocate learned counsel for the complainants that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that an amount of Rs.40,66,015/- had been paid by the complainants to the  O.Ps.  As per the buyers agreement  Ex.C-2 and the terms and conditions incorporated therein including date of delivery of the possession, the possession complete in all respect was to be delivered to the complainants by the O.Ps. on or before 30.11.2014, which includes six months grace period

8.                The period within which, the possession of the unit was to be delivered had already expired and under these circumstances the complainants had no other option, but, to seek the refund of the amount which he had already paid alongwith interest. 

9.                On the other hand, it has been argued by Sh. B.R.Madan, learned proxy counsel for Mr. Ashwani Talwar, Advocate for the O.Ps. that the amount which the complainant had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  Several reminders issued to him regarding balance payment, but, they have not deposited the balance amount.  It is true that the documents were executed between the parties which includes the buyers agreement which contains all the terms and conditions for allotment, for payment of the installments, charging the interest for delayed payment and delivering of possession which includes six months grace period.  There was global recession which had hit the market/economy in the year, 2009 and which extended in the subsequent years as well affected the real estate sector of India to a large extent especially in Panchkula area.  Under these circumstances, the refund cannot be granted alongwith interest and the complaint may be dismissed. 

10.              As per the submissions made by Sh.R.C. Sharma learned counsel for the complainants as well as Sh.B.R.Madan, learned counsel for the O.Ps and after perusal of the entire record as well as appreciation of the evidence during the prosecution of the complaint.  It is true that the O.Ps. have launched a housing scheme under the name and style of  “Parsvnath  Royale” in the area of District Panchkula.  The complainants had opted to book a flat and initially, had deposited an amount of Rs.8,90,100/- thereafter, the buyer agreement EX.C-2 was executed between the parties on 30.05.2011 and as per sub clause 10 (a) of the agreement, it contains the terms and conditions of completion of the project and the most important part is that delivery of the possession within the period of 36 months a grace period of six  months has further been allowed.  As per the details of the payment mentioned in para No.5 of the complaint, on 23.11.2010, the complainants had paid sum of Rs.8,90,100/- through cheque No.00020113 dated 23.11.2010.  Similarly, the complainants had further paid a sum of Rs.2,89,250/-  through cheque No.378230 dated05.10.2011, Rs.2,89,250/- through cheque No.378255 dated 05.10.2011, Rs.6,63,043/- through cheque No.327572 dated 23.04.2013, Rs,6,63,042/- through cheque No.381008 dated 23.04.2013, Rs.2,02,762.44P through cheque No.381098 dated 23.04.2013, Rs.2,02,762.44P through cheque No.357805 dated 23.04.2013, Rs.2,02,762.44P through cheque No.327568 dated 23.04.2013 and Rs.6,63,043/- through RTGS dated 22.05.2013.

11.              It is apparently clear that complainant had deposited Rs.40,66,015/-  including service tax to the O.Ps. whereas, the total price of the unit was Rs.57,85,000/-.  The buyers agreement was executed on 30.05.2011 and as per the clause 10 (a) of the buyers agreement, the possession of the flat was to be delivered within 36 (months)+6 months (grace period)=42 months or on or before 30.11.2014.  Still the period of more than 4 years had already expired and while advancing the arguments, it has been fairly conceded on behalf of the O.Ps. that the project is yet to be completed. The possession cannot be delivered under these constraint circumstances the O.Ps cannot be allowed to utilize or to enjoy the hardened money deposited by the complainants for getting the unit booked for their livelihood. It is the normal trend of the developers/O.Ps. that they would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed.  The complainants had to wait more than period of 40 months for delivery of possession.  In such like matters the court has to be callous enough and the O.Ps. are to be dealt with severe hands  and cannot be allowed to mis-utilizing the funds of the investors or to have  a mis-directions of funds, which ultimately has been resulted into non-completion of the project and ultimately, it is the complainants  or the investors who had to suffer.  As far as the payment schedule is concerned, it has been mentioned in the document i.e. payment plan which is available on page No.26, it has been categorically mentioned that before delivery of the possession, the applicant or the investors or the present complainants had to deposit 95% of the total cost or price of the unit and remaining 5% is to be paid at the time of offering the possession.

12.              In such circumstances, it is evidently clear that complainant had already paid a sum of Rs.40,66,015/- and as such the complainants are entitled to get the refund of the amount in all proposition, the possession of the dwelling unit cannot be delivered even in coming years and moreover a period of more than four years have already been expired, hence the O.Ps. are directed to make a payment of Rs.40,66,015/- alongwith interest @ 12% per annum  from the date of respective deposits and till realization.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period of three months in that eventuality the complainants would further be entitled to get the interest @ 18% per annum, for the defaulting period. The complainants are also entitled of Rs.3,00,000/- for compensation of mental agony and physical harassment. In addition, the complainants are also entitled of Rs.51,000/-  as litigation charges.   It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

 

 

December 03^rd, 2018                                                             Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

R.K.