Delhi

StateCommission

CC/64/2014

DR. CHOTA LAL VERMA - Complainant(s)

Versus

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

14 Oct 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :14.10.2019

Date of Decision : 18.10.2019

COMPLAINT NO.64/2014

In the matter of:

 

                Mr. Chote Lal Verma                                                         

S/o. Late Nand Lal Prasad Verma,

R/o. D-23, MCD Flats,

Gulabi bagh, Kalidas Marg,

Delhi-110007.                                                                                   .......Complainant

Versus

 

1. M/s. Parsvnath Developers Ltd.,

Through its Managing Director,

Having its Registered office at:-

6.  

19-Barakhamba Road,

New Delhi-110001.

 

2. M/s. Devidayal aluminium Industries Pvt. Ltd.,

40-B1/16, Site-IV,

Industrial Area Sahibabad,

Ghaziabad, UP.…..Opposite Parties

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The complainant is not direct allottee from OP. He is third purchaser from secondary market. Initially Ms. Seema Bansal booked a flat in the project with OP-1 who transferred her rights in the name of Shri Gopal Singhal. In turn Shri Gopal Singhal transferred his rights in the name of complainant vide transfer form dated 27.12.07. The flat no. Was T-5-501 area of which was 1025 sq. Ft. The rate was Rs.1795 per sq. ft. And the basic cost was Rs.18,39,875/-. Flat Buyer agreement with endorsement was executed on 27.12.07. Possession was offered on 30.03.17 and compensation for delay in handing over possession from June, 2010 to March, 2017 (82 months) amounting to Rs.4,20,250/- has already been credited in the account of complainant. The sale deed has been executed on 25.09.17.
2. Case of the complainant is that despite making all payments and even after more than four years from the scheduled date of handing over possession, OP-1 has not been able to complete the  project. Complainant took construction linked home loan from ICICI which stopped further financing the project. Clause 10 C of the flat buyer agreement provided that in the event of delay OP-1 was liable to pay compensation to the flat buyer @5/- per sq. ft. per month for the period of delay. The project was to be completed by December, 2010. OP-1 vide letter dated 26.06.10 informed that  on or after 01.07.10 payment would attract service tax at the rate of 2.575% of the basic sale price. The bank had been charging interest of 10-14% per annum. Complainant has paid Rs.4,87,409/- as interest to the bank till the foreclosure of loan amount from 2007 to 2013. Hence this complaint for awarding interest @24% per annum on the amount already paid by the complainant to the OP from the original schedule date of completion, Rs.5 lakhs as compensation for mental harassment and agony, HRA equivalent to Rs.18,000/- per month from original scheduled date of completion, complete the project and hand over  possession within 6 months, bear liquidity of service tax, stop indulging in unfair trade practice, quash demand of service tax.
3. The OP filed WS raising preliminary objections that subsequent purchaser cannot be compared with original allottee, Subsequent purchaser  was aware that time for performance was not the essence of contract and had accepted the delay. This was so held by Hon’ble Apex Court in Haryana Urban Development Authority vs. Raje Ram I (2009) CPJ 56 (SC). On account of global recession which had hit the economy all over the world, pace of construction  had slowed down. The case involves complicated question of facts and law which need to be proved by leading detailed oral as well as documentary evidence. The same should be examined by appropriate court of law and not by this Commission. The terms and conditions of agreement are binding between the parties. On merits it repeated the same pleas.
4. Complainant filed rejoinder and his own affidavit in  evidence.
5. On the other hand the OP filed affidavit of Shri Madan Lal Dogra its Dy. General Manager (Commercial) in evidence. Both the parties have filed written arguments. I have gone through the material on record and heard the arguments. In view the subsequent development which took place during  the pendency of the complaint viz. handing over of possession of the  flat to the complainant and execution of conveyance deed, the position  which boils down is whether the  complainant is still a consumer. Answer to the same is in negative as per recent decision of NC in CC No.1055/15 titled as Rashid Ahmed vs. DLF Ltd. decided on 02.07.19.
6. Another question is as to at what rate the complainant should got penalty for delayed possession. Undisputedly the agreement provides for penalty @5/- per sq. ft. per month. The complainant has already received the same. The NC awarded penalty at the agreed rate of Rs.10/- per sq. ft. per month in CC no.2095/16 titled as Yash Manoj Handa vs. Parsvnath Developers decided on 14.02.19. Not only this in DLF Homes  Panchkula Pvt.  Ltd. Vs. B.S. Dhanda AIR 2019 SC 3218 it was held that when the parties have contemplated consequences of non compliance, it is bound by it. There has to be exceptional circumstance for deviation.
7. The complaint is dismissed.
8. Copy of the order be sent to both the parties free of cost.
9. File be consigned to record room.

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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