Delhi

StateCommission

CC/1255/2015

SHEEL CHAND GARG (HUF) - Complainant(s)

Versus

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

VIKAS KAKKAR

30 Aug 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision: 30.08.2018

 

Complaint Case No.1255/2015

 

Sheel Chand Garg (HUF),

Through its Karta,

Shri Sheel Chand Garg,

S/o Late Shri Ramesh Chand  Garg,

R/o House No.2282,

Sector-16, Faridabad.

…. Complainant

 

Versus

 

 

M/s. Parsavnath Developers Ltd.,

(Through its Managing Director),

Regd. Office: Parsavnath Metro Tower,

Near Shahdara Metro Station, Delhi-110032.

 

Also at

6^th Floor, Arunachal Building,

19, Barakhambha Road, New Delhi-110001.

… Opposite Party

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1. Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. A complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”) is filed by Sheel Chand Garg (HUF) through its Karta Sheel Chand Garg wherein it is stated that the complainant wanted to own a house in Greater Noida and on seeing the OP’s advertisement published in the newspapers, complainant got fascinated and believing their representations and assurances, applied for the allotment of a Residential Flat in Group Housing Complex of OP.  The complainant had made a initial payment of Rs.10 lakhs as demanded by OP along with application form in the name of the Project “Parsvnath Privilege” located at Plot No.11 in Sector Pi, Greater Noida. Thereafter complainant was issued a letter dated 14.5.07 wherein OP informed the complainant about the allotment of a Residential Apartment.
2. It is stated that on 23.6.07, parties entered into Flat Buyer Agreement (in short, “the Agreement”) whereby OP agreed to sell Residential Flat bearing No. T1-1501 in Tower No. T1 having 1855 sq. ft. to the complainant by fixing certain terms and conditions on the basic price of Rs.52,86,750/-.
3. In all complainant paid Rs.18,98,592/- to the OP against which receipts were issued.  A letter was also issued by OP on 10.6.10 assuring that the possession will be handed over by 2012.  It is alleged that the OP was bound to complete the project on time and despite many assurances made, OP has failed to fulfil its commitment.  It is alleged that there is no construction activity at the site for a particular block in which complainant was allotted a flat by OP.

 

4. It is alleged that as per the Agreement, OP was to hand over the possession within 36 months from the date of construction of the particular block in which the flat is located.  It is stated that 36 months has elapsed long back and still no possession has been given to the complainant by the OP.  OP had also written a letter dated 10.6.10 stating the cause of delay and assured for handing over the possession by 2012.  It is alleged that despite assurances given, OP has not started construction at the site wherein complainant is allotted flat.  It is prayed that OP be directed to refund the entire amount along with interest @ 24% p.a. from the date of respective payment till the date of actual payment.  The complainant has also prayed for compensation of Rs.10,00,000/- and damages amounting to Rs.10,00,000/- for causing mental agony and harassment to him.
5. Complaint is opposed by OP by filing written statement wherein preliminary objection raised is that complainant is an investor as such does not come within the definition of ‘consumer’ as per the Act.  It is alleged that complainant has booked flat to earn profits and is not a ultimate consumer of the flat.
6. However, on merits the booking of flat by complainant is admitted.  Even the receipt of payment of Rs.18,98,592/- is also not disputed.  The Agreement between the parties is also admitted.  It is also admitted that as per clause 10(a) of the Agreement, the construction of flat was to be completed within a period of 36 months subject to force majeure and restraints/restrictions from any courts/authorities etc.  OP has alleged that due to global recession, the development of work at the site could not take place.  He has further stated that as per clause 10(c) of the Agreement, the right of complainant exists for compensation @ Rs.53.82 per sq. meter or @ Rs.5/- per sq. ft. of the super area per month for the period of delay.  OP has denied deficiency in service on his part.  It is alleged that frivolous complaint has been filed.  The same is liable to be dismissed.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
7. Rejoinder is filed by the complainant denying the allegations levelled by OP.  The complainant has reiterated the averments made in the complaint case.
8. Both the parties filed evidence by way of affidavits.  Complainant has filed his own affidavit being Karta of the complainant wherein contents of the complaint case are reiterated on oath.  Complainant has proved on record dispatch of letter dated 23.02.07 i.e. Ex-CW-1/A; copy of letter dated 14.5.07 i.e. Ex-CW-1/B, copy of Flat Buyer Agreement i.e. Ex-CW-1/C; payment receipts i.e. Ex-CW-1/D (Colly); letter dated 10.6.10 sent by OP assuring that the possession would be handed over by 2012 i.e. Ex-CW-1/E; copy of letter dated 31.3.15 sent by complainant to OP i.e. Ex-CW-1/F seeking status of construction; photographs of site i.e. Ex-CW-1/G (Colly); copy of legal notice dated 12.10.15 sent to OP along with dispatch proof and AD card i.e. Ex-CW-1/H (Colly).
9. On behalf of OP, affidavit of Shri Madan Lal Dogra, Deputy General Manager is filed wherein he has reiterated the contents of written statement on oath and has exhibited copy of Resolution passed in the meeting of Board of Directors of OP whereby he has been authorized to do needful on behalf of OP.  He has further stated in the affidavit that there is no deficiency in service on the part of OP.  
10. We have heard the Counsel for the parties and perused the material on record.

11.      As regards preliminary objection that the complainant is an investor, nothing on record is placed by OP to substantiate the same.  It is not the case of the OP that complainant is engaged in the business of purchasing and selling houses/plots on regular basis and is making profits.  OP has levelled bald allegations. The objection raised in this regard is rejected.  Reliance is placed on the judgement of  Kavita Ahuja vs Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors., 1 (2016) CPJ 31 (NC).

12.         It is admitted position that vide letter dated 23.2.07 i.e. Ex-CW-1/A, OP had allotted provisional allotment of Residential Flat bearing No.T1-1501(3 BHK), Parsvnath Privilege Greater Noida, UP.  The initial payment of Rs.10 lacs paid by complainant to the OP is also admitted and thereupon a letter dated 14.5.07, Ex-CW-1/B was issued whereby the complainant was allotted the Residential Apartment, the details of which have already been stated above.  It is also admitted position that on 23.6.07 parties entered into Agreement i.e. Ex-CW-1/C.  The further payment made by the complainant is also admitted.  In all the complainant has paid Rs.18,98,592/- to the OP.  The receipts in this regard are placed on record as Ex-CW-1/D (Colly).  It is also admitted position that as per Clause 10(a) of the Agreement, the construction of the flat was to be completed within a period of 36 months from the date of commencement of construction of the particular Block in which the flat is located subject to force majeure etc.  The contention of OP is that due to global recession, the development of the work at site could not take place.  The OP cannot seek extension on the aforesaid ground as no such ground is there in the Agreement between the parties. Ld. Counsel for the OP while arguing the matter has admitted particular Block in which flat has been allotted to the complainant, the construction has not so far commenced. The booking was done in the year 2007.  Now almost 11 years have passed and the construction work of the tower in which flat is allotted to the complainant has not commenced.  Despite knowing that OP is unable to construct the Tower in which the flat in question is allotted to complainant, OP has not made any effort to return the money.  The stand of the complainant is that OP has utilized the funds in another project. The possibility of same cannot be ruled out.  The present is a clear case of unfair trade practice and deficiency in service on the part of OP.  The complaint case is pending since 2015.  Even during the pendency of the case, no such effort has been made by OP to return the amount.  Rather OP has been contesting the case on frivolous grounds.

13.         In view of above discussion, the complaint is allowed with the following directions:

1. OP shall refund the entire amount of Rs.18,98,592/- to thecomplainant within 8 week from today along with simple interest @ 12% per annum from the date of each payment till realization of the amount.

2.  

 

 

 

 

14.  

 

(Justice Veena Birbal)

President

 

(Salma Noor)

Member

 

 

 

sa