Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 581.
Instituted on : 18.10.2016.
Decided on : 13.02.2019.
Smt. Kamla Devi w/o Sh. Shamsher Singh R/o H.No.779 Ward No.21, Prem Nagar, Rohtak.
………..Complainant.
Vs.
- M/s Parsvnath Developers Ltd., Parsvnath Metro Tower, Near Shahdara Metro Station, Shahdara, Delhi-1100312 through its Director.
- M/s Parshvnath Developers Ltd., Parshavnath City, Rohtak near IMT Rohtak Through its Manager/Incharge.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER
Present: Sh.Tarun Hooda, Advocate for the complainant.
Sh.Rajesh Sharma, Advocate for the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant had purchased a residential plot No.A-149 Block-A, measuring 250.83 sq. mtrs(300 sq. yds) at Parsvnath City, Rohtak. That complainant had paid all dues i.e. Rs.1952867/- within stipulated time and as per agreement signed between the respondents and complainant, the respondents have to provide all the basic amenities within 24 months from the date of signing of this agreement but till date respondents have not provided the basic amenities which are essential requirements. That opposite parties also agreed that in case of delay in possession of plot, opposite parties shall pay compensation of Rs.12/- per sq. mtr. of the plot area per month for the period of delay. That the possession is not delivered by the OPs till date so the OPs are liable to give the above said amount i.e. Rs.72000/- alongwith interest @ 24% p.a. to the complainant. That due to illegal acts of the opposite parties complainant has suffered a lot of harassment and financial loss. Hence this complaint and the complainant has prayed for directing the opposite parties to provide basic amenities and to pay interest @ 24% p.a. on the amount referred above for the period from 07.11.2014 to till its actual payment, to deliver the possession and also to pay a sum of Rs.50000/- for harassment etc. and litigation expenses as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties who appeared and filed their written reply submitting therein that the present complaint is not maintainable before this Forum in the light of judgment of the Hon’ble Supreme court of India in the matter of “Ganesh Lal Vs. Shyam” (Civil Appeal No.331 of 2007). On merits, it is submitted that the plot buyer agreement was executed between the complainant and the opposite party on 07.11.2012. It is denied that complainant had paid an amount of Rs.1952867/- towards the dues against the said plot. That the complainant has paid an amount of Rs.2293245/- against the basic price of the plot. It is denied that the opposite party has not provided the basic amenities which are essential requirement. It is admitted that opposite parties are liable to pay delay compensation, however the same is payable at the time of final settlement of accounts. That the opposite party has charged EDC and IDC as per norms and rules & regulations laid down by the government. That there is no deficiency in service on the part of OPs and dismissal of complaint has been sought.
3. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C24 and closed his evidence on 04.12.2017. On the other hand, ld. counsel for OPs tendered affidavit Ex.RW1/A, documents Ex.OP1/1 to Ex.OP1/9 and the evidence OP was closed by Court order dated 13.09.2018.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present complaint the respondent officials made several objections in their written statement, affidavit and documents placed on record by them. Firstly, as per the complainant he had deposited an amount of Rs.1952876/- against the plot No.A-149 in Block-A, whereas as per the respondent officials an amount of Rs.2293245/- has been deposited by the complainant against this plot. The complainant has placed on record several receipts and he only claimed and pleaded that he only deposited an amount of Rs.1952867/-. On the other respondent officials have not placed on record receipts to prove that the complainant had deposited an amount of Rs.2293245/- against the plot No.A-149. In this way we come to the conclusion that complainant had only deposited an amount of Rs.1952867/-.
6. Secondly, the respondent took a plea that the dispute between the parties involves complicated question of fact and law, which necessarily entail the leading of copious evidence. In favour of this contention, respondent has not placed on record any document to prove that there is involvement of question of fact and law. In fact the payment was made by the complainant and same was admitted by the respondent officials. The allotment was made by the respondent officials and this fact has been mentioned by the complainant in his pleadings. Moreover an agreement dated 07.11.2012 also has been affected between the parties and the same is Ex.C1/Ex.OP1. In this way nothing is found complicated in the pleadings. As such the alleged plea is turned down. Thirdly, the respondents took plea in their preliminary objections that prima-facie, the complaint is not maintainable before this Forum in the light of judgment of Hon’ble Supreme Court of India in matter of Ganesh Lal Vs. Shyam [Civil Appeal No.331 0f 2007]. The relevant part of the judgment is reproduced herein below:- “6……. We may, however, note that when it comes to “housing construction”, the same has been specifically covered under the definition of “service” by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act”. But the perusal of the contents of this case law reveals that the fact of the present case are totally different from the cited law. In the present case there is a dispute regarding the deficiency in service between the complainant and the builders and no issue regarding demarcation, ownership and possession is involved in the case in hand. Whereas in the cited case, there is a dispute between two private parties and not between any individual and builders. So the respondent cannot take the benefit of this cited law.
7. The contention of ld. counsel for the complainant is that as per agreement signed between the respondents and complainant, the respondents have to provide all the basic amenities within 24 months from the date of signing of this agreement but till date respondents have not provided the basic amenities which are essential requirements. Opposite parties also agreed that in case of delay in possession of plot, opposite parties shall pay compensation of Rs.12/- per sq. mtr. of the plot area per month for the period of delay. That the possession is not delivered by the OPs till date so the OPs are liable to give the above said amount alongwith interest @ 24% p.a. to the complainant.
8 We have also gone through the agreement dated 07.11.2012 argued by both the parties at length. The both parties considered the clause No.8(a ) to ( c) in their arguments which is as under:-
8(a) The Developer shall endeavor to complete the internal development works of the colony within twenty four months from the date of signing of the Agreement, subject to force majeure, restraints or restrictions from any courts/authorities, circumstances beyond the control of the Developer and subject to timely payments by the Buyers. For the purposes of this clause/agreement the date of submission of application with the competent authority for obtaining completion certificate in respect of internal development of the colony shall be reckoned as the date of completion of development of the Colony. No claim by way damages/compensation shall lie against the developer in case of delay in handing over possession on account of any of the said reasons and the Developer shall be entitled to extension of time for completion of internal development.
(b) The Developer shall make offer of possession of the Plot on completion of internal development works on the land area under the relevant licence in the Colony. The Buyer shall be entitled to the possession of the Plot only after all the amounts payable by him under this Agreement have been paid and sale deed executed and registered in favour of the Buyer. The Developer on completion of internal development shall issue final call notice to the buyer, who shall within 30 days thereof, remit all dues, execute sale deed and take possession of the Plot.
(C ) In case of delay in possession of the Plot beyond the period stipulates, subject to force majeure and other circumstances as aforesaid under cause8(a), the developer shall pay to the Buyer compensation @ Rs.12.00 (Rupees Twelve only) per sq. mtr.(Rs.10.00 per sq. yard). of the Plot area per month for the period of delay. Apart from the said compensation the Developer shall not be liable to any compensation/damages for the period of delay in offering possession. Likewise, if the Buyer fails to settle the final account and to execute sale deed and take possession of the Plot within 30 days from the date of issue of the final call notice/offer to hand over possession, the Buyer shall be liable to pay to the Developer charges@ Rs.12.00 per sq. mtr(Rs.10.00per sq. yard). of the plot area per month on expiry of 30 days notice and shall also become liable to pay any charges, levies, taxes and maintenance charges in respect of the Plot irrespective of the fact that the Buyer has not been in enjoyment of the same”.
9. The perusal of this document itself shows that the respondent officials should handed over the possession of the plot to the complainant within 24 months from the date of signing of agreement which was signed on 07.11.2012 and the same should be handed over to the complainant upto 06.11.2014 but the possession has not been handed over to the complainant till date which amounts to deficiency in service on the part of respondents and respondents are liable to compensate the complainant as per terms and conditions of the agreement. The complainant has demanded possession of plot and interest upon the deposited amount w.e.f. 07.11.2014 to till its actual payment and also demanded the delivery of possession of the plot alongwith Rs.5 lac as damages for unnecessary harassment and any other relief has been sought by the complainant in the interest of Justice.
10. After considering all the facts and circumstances of the case, we came to the conclusion that opposite parties shall hand over the possession of plot in question to the complainant within 6 months from the date of order alongwith basic amenities as per clause 8(c ) and shall also pay compensation @ Rs.12/- per sq. meter (Rs.10. per sq.yard) of the plot Area per month for the period from 07.11.2014 till the date of physical possession and shall also pay a sum of Rs.50000/-(Rupees fifty thousand only) as compensation on account of deficiency in service as well as litigation expenses to the complainant. Now as per the any other relief claimed by the complainant, we come to the conclusion that if the opposite parties fail to deliver the physical possession to the complainant within 6 months, in that situation, the opposite parties are directed to pay the deposited amount alongwith interest @ 12% p.a. from the date of its respective deposits till its actual realization to the complainant alongwith Rs.50000/-(Rupees fifty thousand only) as compensation to the complainant. Complaint is allowed accordingly.
11. Copy of this order be supplied to both the parties free of costs.
12. File be consigned to the record room after due compliance.
Announced in open court:
13.02.2019.
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Nagender Singh Kadian, President
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Ved Pal Hooda, Member.
………………………………
Saroj Bala Bohra, Member.
