Delhi

StateCommission

CC/13/250

KAMLESH GULSHEN - Complainant(s)

Versus

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

27 Jun 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 27.06.2019

Date of Decision :29.07.2019

COMPLAINT NO.250/2013

In the matter of:

 

1. Ms. Kamlesh Gulshan,                            

W/o. Shri Rajvir Singh.

 

2. Shri Rajvir Singh,

S/o. Shri Makhan Singh

 

Both r/o. H.No.WZ-63A (F-17),

IInd Floor, Gali No.2,

Rattan Park,

New Delhi-110015.………Complainants

 

Versus

 

1. Parsvnath Developers Ltd.,
6.  

19 Barakhamba Road,

New Delhi-110001.

Through its Managing Director

 

2. The Executive Chairman,

Parsvnath Developers Ltd.,

6.  

19 Barakhamba Road,

New Delhi-110001.

 

3. Devidayal Aluminium Industries Pvt. Ltd.

40 B1/16, Site IV,

Industrial Area Sahibabad,

Ghaziabad, U.P.

Through its Managing Director……..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 complainants are wife and husband. Their case is that a development agreement dated 28.10.2004 was executed between OPs no.1 and 3. OP-1 agreed to construct and sell a group housing complex namely Parsvnath Reglia on land belonging to OP-3. OP-1 started marketing the same in 2006. The complainants entered into a flat buyer agreement dated 22.09.07 with OP-1 which was duly stamped and signed by the OP-3 also in confirmation. The complainants agreed to purchase flat no.803 in Tower no.2 of the above complex in Sahibabad, Ghaziabad, UP admeasuring 1570 sq. ft. with a covered car parking. The total sale consideration was Rs.38,75,000/-. Basic price was Rs.38,25,000/- and covered car parking cost was Rs.50,000/-.
2. Payment plan opted by the complainants was time linked. Complainants had paid Rs.36,83,750/- which is around 95% of the total consideration. Balance amount of 5% was to be paid at the time of payment of possession. The complainants were required to pay one time interest free maintenance deposit at the time of final payment. The  complainants had taken housing loan of Rs.27 lakhs from LIC Housing Finance Ltd. on which they are paying interest ranging from 10% - 14% per annum. OP-1 had assured of  handing over of possession in July – August 2009 i.e. within 3 years of commencement of construction. The construction commenced in July – August 2006. There was a provision for grace period of 6 months from commencement of the tower.
3. In August, 2009 complainant no.1 enquired about possession of the flat. She was assured of handing over possession soon. Complainants received letter dated 12.02.10 and rescheduling of the project completion  date to December, 2010 and reassured of compensating them for the delay by way of penalty as per clause 10 (c ) of the flat buyer agreement. As per the said agreement, OP-1 was to pay compensation @Rs.5/- per sq. ft. per month of the super area of the flat. The complainants once again received letter dated 19.11.10 reextending the completion date from December, 2010 and June, 2011 (in two phases). OP-1 informed the complainants, in writing, that construction of Tower no.2 in which complainants flat was located had commenced in March, 2007, compensation for delay till 31.12.10 worked out to Rs.78,500/-. OP-1 assured of crediting of entire amount upto June, 2011 to their account adjustable at the time of offer of possession and for delay beyond June, 2011 the amount was to be directly remitted to the complainants.
4. The complainants were shocked to learn  from other flat buyers that OP-1 issued letter dated 26.06.10 informing them about levy of service tax on construction of complex service tax as introduced by Finance Act 2010. The buyers were informed that the levy of service tax was effective from 01.07.10, payments made by  buyer for demands raised on or after 01.07.10 was leviable with service tax @2.575% in  respect of basic sale price and @10.3% in respect of preferential location charges and other charges. The OP is liable for consequences of delay. In other words the levy of service tax must have been born by the OP-1. Due to acts and omissions  of OPs the complainants are not only losing interest income on the amounts paid by them but are also not receiving  possession of the flat and are losing opportunity of living ion their own flat/ receiving rent from their own property which could have helped them in repayment of their housing loan. They sent legal notice dated 25.10.12 calling upon OPs to pay interest @24% per annum on the amounts paid by them from original schedule date of completion, to pay Rs.5 lakhs as compensation for mental harassment and agony, to pay amount equivalent to loss suffered by them on account of not having been able to seek rebate in the income tax on the amount of interest paid on repayment of housing loan due to delay in offer of possession, to bear the liability of service tax, to hand over possession of the flat at the earliest and stop indulging in unfair trade practice. The OP-1 sent reply dated 26.11.12 admitting delay on their part due to financial hardship. It denied the claim of the complainant and reiterated its liability of payment of compensation as per clause 10 (c ) of flat buyer agreement. OP-1 also cited reasons beyond its control for delay like economic meltdown etc.
5. Payment of compensation at the agreed rate amounts to interest at the rate of 2.5% per annum approximately. The flat buyer agreement is a standard form contract which is in a printed form and a flat buyer is required to sign on the dotted lines. Hence this complaint for interest @24% per annum on the amount paid w.e.f. September, 2009 till December, 2012, pay amount equivalent to the benefit of exemption of tax under Section 24 (1)  of the income tax act which is around Rs.11,76,794/-, pay Rs.5 lakhs for mental harassment and agony and pay cost of litigation.
6. OPs filed their WS raising preliminary objection that complaint is bad because of mis-joinder and non joinder of necessary parties. Housing Finance Company must have been impleaded as a necessary party. On account of the global recession which had hit the economy   all over the world, the pace of construction had slowed down. The complainants have not approached with clean hands and fair intentions. They have concealed material facts. Proceedings before consumer courts are essentially summary in nature. OP-1 has paid penalty till March, 2013 to the complainants, as per agreement. On merits it denied that construction commenced in July – August, 2006. It denied that complainants were made to believe that construction commencement date was July – August, 2006. It denied liability to pay interest @24% per annum or benefit of exemption of tax.
7. The complainants filed rejoinder. Complainant no.1 filed her affidavit in evidence.
8. On the other hand OP filed affidavit of Shri Madan Lal Dogra, Dy. General Manager in evidence.
9. Both the  parties have filed written arguments in support of their case. I have gone through the material on record and heard arguments. At the very out set I may mention that complainants have got the flat, they are trying to claim around Rs.47 lakhs as against Rs.39 lakhs/ the sale consideration. Thus they want to get flat free of cost.
10. During pendency of case complainants have received possession, sale deed has been executed in their favour, compensation for delayed possession as per agreement has been credited in account of complainants, para-4 of the sale deed recites that vendees have received possession to their satisfaction, OP has filed copies of offer for possession, sale deed and statement of account which are on record. In view of the same complainants are no more consumer as per decision in Smita Roy vs. Excel construction II (2012) CPJ 204 NC, Harpal Arya vs. Housing Board Haryana II (2016) CPJ 36 NC, A N Sehgal vs. DDA I (1996) CPJ 34 NC. Their claim remain confined to recovery of difference in the amount of compensation for delayed possession. They are stopped from pointing out deficiencies and complaining about harassment & agony.
11. The complainants have relied upon decision of NC in CC No.334/2012 titled as Sanjay Goel vs. Unitech decided on 29.05.13. In that case the OPs had not delivered possession till date of decision by NC. The OPs were directed to hand over possession within 6 months from the date of order failing which they were to pay extra penalty of Rs.25,000/- per month. That is not applicable to the facts of the present case.
12. Complainants have also relied upon decision of NC in CC No.427/14 titled as Satish Kumar Pandey vs. Unitech decided on 08.06.15  in that case NC awarded compensation for delay @12% per annum inspite of buyer agreement containing a clause of  Rs.5 per sq. ft. per month for the delay.
13. Complainants have relied upon decision of  NC in CC No.368/14 titled as Sweta Kapoor vs. Unitech Ltd. decided on 14.01.16. That deals with plea of force majeure which is not in issue in the present case.
14. On the other hand the OPs have relied upon decision of Hon’ble Supreme Court in Simco Industries vs. State Bank of Bikaner & Jaipur AIR 2002 SC 568 to make out that cases  involving complex and complicated question of facts and law can not decided in summary jurisdiction of consumer forum. I do not find any such complicated question in the present case.
15. The OPs have relied upon decision of NC in Sahara India Commercial Corporation Ltd. vs. C. Madhu Babu II (2011) CPJ 3 in which it was held that when there is written agreement between the parties, Consumer For a has to consider the relief in the light of such agreement and it has no option to add or subtract any of the  conditions or words thereof. Similar view was taken by Hon’ble Supreme Court in Bharati Knitting Company vs. DHL Worldwide Expressed Courier II (1996) CPJ 25. NC also took same view in Sahara India Commercial vs. V. Gajendra Cherry III (2010) CPJ 190. In IV (2017) CPJ 159 Dr. K.D. Soni vs. Haryana Urban Development Authority NC held that Consumer Court can not  go into virus of agreement.
16. The counsel for OP relied upon a recent decision of NC in CC No.2095/16 titled as Yash Manoj Handa vs. Parsvnath Developers Ltd. decided on 14.02.19 in para-6 it was held that it would be fair and reasonable in the facts and circumstance of the case to award agreed compensation of Rs.10 /- per sq. ft. of the super area per month to the complainants w.e.f. 01.07.10 till date on which  occupancy certificate was obtained by the OP.
17. In the case in hand the complainants have already been paid compensation at the agreed rate. Thus they are not entitled to any further relief. The complaint is dismissed.
18. Copy of the order be sent to both the parties free of cost.
19. File be consigned to record room.

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)