Haryana

StateCommission

CC/356/2018

JASKIRAT SINGH TOOR AND ANOTHER - Complainant(s)

Versus

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

ABHISHEK SINGH

21 Apr 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:05.06.2018

                Date of final hearing:21.04.2023

                                                Date of pronouncement:26.04.2023

 

Consumer Complaint No.356 of 2018

 

IN THE MATTER OF

 

1.      Jaskirat Singh Toor S/o Jasbir Singh, R/o House No.60, Rajinder Nagar, Jalandhar.

2.      Nitin Kalra S/o Mohinderjit Kalra, R/o House No.60, Rajinder Nagar, Jalandhar.

                                                                                       .….Complainants

Through counsel Mr. Abhishek Singh, Advocate

Versus

 

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

        Site office: Parsvnath Royale, behind Society No.105 to 111, Sector-20, Panchkula.

Opposite party No.1.

Through counsel Mr. Ashwani Talwar, Advocate

 

2.    M/s Samar Estate Pvt. Ltd., registered office at 254, NAC, Manimajra, Chandigarh through its Managing Director.

….Opposite party No.2

Through counsel Mr. Tarun Gupta, Advocate

 

CORAM:   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Abhishek Singh, Advocate for the complainants.

Mr. Satpal Dhamija, Advocate for Mr. Ashwani Talwar, counsel for opposite Party No.1.

Opposite party No.2 given up vide order dated 13^th November, 2019.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that opposite party No.1 (‘OP No.1’) floated a project under the name and style of “Parsvnath Royale” in Sector-20, Panchkula (Haryana) and the development was to be carried out by OP No.1 & OP No.2. Complainants booked a flat by paying an amount of Rs.8,90,000/- to OP No.1 and flat bearing No.T-402, 4^th Floor, Tower-6, measuring 1780 sq. ft. was offered to them in the said project. Total sale consideration of the flat was Rs.57,85,000/- against which complainant had paid an amount of Rs.44,59,440/- to the OP No.1 on different dates. Flat Buyer’s Agreement was also executed between the parties on 14.02.2011. It was alleged that as per the terms and conditions of Flat Buyer’s Agreement, construction of the flat was to be completed within a period of 36 months i.e. March, 2014, from the date of execution of Flat Buyer’s Agreement. It was further alleged that Ops failed to deliver the possession of the flat in question and vide letter dated 14.07.2015 informed the complainants that the possession of flat was extended from March, 2014 to December, 2016. As per the clause-10(c) of the agreement, in case of delay in construction of the flat beyond the period, the developer shall pay Rs.53.80 per sq. meter or Rs.5/- per sq. ft. of the super area(178 sq. ft.) per month for the delayed period. Complainants also requested the Ops to refund his deposited amount but they were also not ready to do so. Thus, there was deficiency in service on the part of the OPs.  The complainants prayed that OPs be directed to refund the deposited amount i.e. Rs.44,59,440/-; to pay Rs.5/- per sq. ft. of the super area, per month for the delayed period, which starts from 05.03.2014; to pay Rs.22,74,314/- as per the clause-1 of the agreement, Ops are liable to pay 12% p.a. on the deposited amount from the date of possession; to pay Rs.5,00,000/- as compensation on account of mental agony and harassment and Rs.50,000/- as costs of litigation.

2.                Notice of the complaint was issued against the Ops, upon which they appeared before this Commission. OP No.2 was given up  vide order dated 13^th November, 2019 as no relief was sought against it. On the other hand, OP No.1 failed to submit its written version despite availing several effective opportunities. Ultimately, defence of OP No.1 was struck off by this Commission vide order dated 13^th Novemberl, 2019.

3.                When the complaint was posted for recording evidence of the complainants, learned counsel for complainants has tendered into evidence affidavit of Mr. Jaskirat Singh Toor as (Ex.C-1), whereby he reiterated all the averments of the complaint and further tendered various documents (Ex.C-2 to Ex.C-17) and closed the same on behalf of complainants.

4.                The arguments have been advanced by Mr. Abhishek Singh, learned counsel for the complainants and Mr. Satpal Dhamija, Advocate for Mr. Ashwani Talwar, learned counsel for OP No.1. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

5.                As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainants, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest or not? 

6.                While unfolding his arguments, it has been argued by Mr. Abhishek Singh, learned counsel for the complainants that as far as the execution of the Flat Buyer’s Agreement Ex.C-3 is concerned, the same could not be disputed as entire evidence of complainants has remained unrebutted. It could also not be disputed that complainants had paid Rs.44,59,440/- (Ex. C-2 & Ex.C-5 to Ex.C-15) to the OP No.1. It is also not controverted that the total sale consideration of the said flat was Rs.57,85,000/-i.e. at the rate of Rs.3250/- per sq. ft.  As per the Flat Buyer’s Agreement and the terms and conditions incorporated therein, including date of delivery of the possession of the apartment, the possession complete in all respect was to be delivered to the complainants by the OPs within 36 months with grace period of 06 months, subject to some reservations. The period within which, the possession of the unit was to be delivered has already expired despite complainants having deposited an amount of Rs.44,59,440/-. In these circumstances, the complainants had no other option, but, to seek refund of the amount alongwith interest, which he had already paid, as they do not think that OP No.1 will be able to put him into possession of the flat. 

7.                In view of the above submissions and after careful perusal of the entire record, it stands proved that upon floating a project by the OP No.1-builder, residential unit was purchased by the complainant for a total cost of Rs.57,85,000/- against which an amount of Rs.44,59,440/- has already been paid.  Flat Buyer’s Agreement dated 14.02.2011 also stands proved. As per the agreement, the possession of the apartment was to be delivered within a period of 36 months with grace period of 06 months, complete in all respects subject to some reservation. To the utter surprise of this Commission it is quite surprising as to how inspite of the fact that a period of more than 7 years had expired, the possession of the apartment has not been delivered to the complainant by OP No.1.  As such, there was a clear breach of terms and conditions of the Flat Buyer’s Agreement on behalf of the OP No.1. It is the normal trend of the developers that a developer would collect their hard earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed.  Resultantly, completion of the project and the delivery of possession is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in services on the part of OP No.1 and thus, complainants are well within their legal rights to seek refund of the amount of Rs.44,59,440/-  (Rs. Forty four lakhs fifty nine thousand four hundred forty only) which they had already deposited with the OP No.1. Even otherwise also, there is a strong element of physical and mental agony caused to the complainants for their having invested a huge amount and still being deprived of and not being put into possession of the flat and under these constrained circumstances, they had to knock at the door of this Commission even for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

8.                As regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly, it would, in considered view of this Commission, be just fair and reasonable to award 9% as the rate of interest to the complainant.

9.                In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP No.1 is directed to refund the deposited amount of Rs.44,59,440/-  (Rs. Forty four lakhs fifty nine thousand four hundred forty only) alongwith interest @ 9%  per annum to the complainants from  the date of its respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 12% per annum, for the defaulting period. The complainants are also entitled to a sum of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony.  In addition, the complainants are also entitled to an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation charges. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

10.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

11.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

12.              File be consigned to record room alongwith a copy of this order.

 

 

Pronounced on 26^th April, 2023

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench

 

 

R.K