Punjab

StateCommission

A/1118/2015

Lalit Kumar - Complainant(s)

Versus

M/s Parsvnath Developers - Opp.Party(s)

Lalit Pathak

11 Apr 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1118 of 2015

 

                                                          Date of Institution: 09.10.2015

                                                          Order Reserved on: 10.04.2017

                                                          Date of Decision  : 11.04.2017

 

1.      Lalit Kumar son of Late Sh. Bal Krishan,

 

2.      K.A. Jain son of Sh. Shadi Lal Jain, Both residents of H.No.44-        B, Kithchlu Nagar, Civil Liens, Ludhiana now at C/o Jain Sons,         18, Gur Nirnkari Colony , Opposite Deffodils Beauty Parlor           Bombay Tyre Road, Sunder Nagar, Ludhiana.

 

                                                                    Appellants/Complainants

                   Versus

 

1.      M/s Parsvnath Developers Ltd., 6th Floor, Arunachal Building,          19, Barakhamba Road, New Delhi 100001.

 

2.      M/s Parsvnath Developers Limited, Parsvnath Metro Tower,   Near Shahdra Metro Station, Shahdra, Delhi 110001.

 

                                                        Respondents/Opposite parties

 

First Appeal against order dated 08.09.2015 passed by the District Consumer Disputes Redressal Forum,  Patiala.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

         

Present:-

          For appellants              : Sh.Lalit Pathak, Advocate

          For respondent            : Sh. Satpal Dhamija, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants have directed this appeal against order dated 08.09.2015 of District Consumer Forum Patiala, directing the respondents of this appeal to pay compensation @ Rs.5/- per sq. ft for the delay in delivery of possession of the flat w.e.f. 3.11.2011 to date of filing the complaint with interest @ 10% per annum and Rs.7500/- as cost of litigation. The appellants of this appeal are the complainants in the original complaint before District Forum and respondents of this appeal are the opposite parties therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainants have filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OP/Company deals in the construction work by constructing flats for sale to the interested parties. The complainant booked three bed room flat no. T-10-491, fourth floor in Tower No.T-10 having approximate floor area of 1580 sq. ft  (146.78 sq. ft) in Parsvnath Castle Rajpura Punjab for the base value of Rs.18,17,000/-, as per agreement dated 03.05.2008 under Plan A (down payment plan with 12% rebate) and as per the terms of the agreement's clause 10, the construction of the flat was to be completed within the period of 36 months from the date of commencement of the project. The complainant deposited amount of Rs.18,17,000/- with OPs. Tower No. T-10 in Parsvnath Castle Rajpura on the fourth floor in Parsvnath Castle Rajpura was not completed by the OPs and even the construction of the flats has not started till date. The OPs without assigning any reason changed the number of the flat to T-11-401 to  the utter disadvantage of the complainants. The OPs committed the breach of terms and conditions of the buyers agreement dated 03.05.2008. The OPs failed to raise construction of the flat and to deliver the possession of the flat on the basis of above buyers agreement to the complainants within stipulated period. The complainants wrote letter dated 22.05.2013 to OPs to hand over the possession of the flat or to pay compensation to them for delayed period, but OPs failed to do so. The complainants also issued legal notice to OPs on 24.03.2014 through their counsel, but OPs did not respond to it. The complainants are entitled to refund of their deposited amount of Rs.16,82,610/- with interest from the date of deposit and Rs.7 lac as compensation and costs of litigation.  The OPs are deficient in providing service to the complainant in accordance with buyers agreement dated 03.05.2008. The OPs never issued notice to the complainant for payment of balance amount of the flat nor for delivery of possession, registration and completing of other formalities. There is clause 10 (c) in buyers agreement setting out that in case of delay in the construction of the flat beyond the period, as stipulated, subject to force majeure and other circumstances, the developers shall pay to the buyer compensation @ 53.80 per sq. mtr or @ Rs.5/- per sq. ft of the super area of the flat per month for the delayed period. The OPs have also not complied with it. The complainants have, thus, filed complaint directing the OPs to deliver the possession of the flat or to refund the amount of Rs.16,82,610/- along with interest @ 12% p.m from the date of deposit till date of payment and also other reliefs as detailed in the complaint.

4.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. This fact was admitted by OPs that complainant applied for flat no. T-10-401 in Tower no. T-10 with OPs of 1580 sq. ft in Parsvnath Castle Rajpura project. This fact was also admitted that complainant booked flat on 12.04.2008 for basic cost of Rs.19,67,000/- under Construction Linked Payment Plan on 12.04.2008 and paid Rs.75,000/- to OPs. Buyers agreement was executed between the parties on 03.05.2008 in this regard. The OPs changed the allotment of the flat from T-10-401 to T-11-401 in the same project due to certain changes in the original lay out plan, which was duly intimated to the complainant, since the complainant opted for construction linked payment plan. Demand notice was sent to him as and when payment of the installments became due. The first floor roof slab has already been casted in the Tower 11, where the flat of the complainant was situated. As per Clause 10 (c) of the Buyers Agreement, complainant cannot claim reliefs, which are beyond the compensation agreed upon by him in it. As per ledger maintained by OPs, the complainants have till date paid a total amount of Rs.16,82,610/- towards cost of the flat and car parking charges. As per Clause 10 (C) of the Flat Buyers Agreement entered into by both parties, the liability of OPs is limited to Rs.5/- per sq. ft, per month after 42 months have elapsed and subject to other conditions i.e. the limit of liability has been fixed, as per the terms and conditions of the flat buyers agreement, as agreed in writing by both the parties. It was denied that OPs had not complied with any of the terms and conditions of the buyers agreement. The complainants had sent a legal notice on 14.10.2014, which was duly replied by OPs, vide their letter dated 13.11.2014. The delay took place due to global recession in economy all over the world. The construction up to first floor roof slab has been completed and construction was under way. The OPs controverted fact of the entitlement of the complainant on above referred grounds and prayed for dismissal of the complaint.

5.      The complainant tendered in evidence, his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-13. As against it; OPs tendered in evidence affidavit of Ajay Kashyap Additional General Manager (CRM) Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-7.  On conclusion of evidence and arguments, the District Forum Patiala, accepted the complaint of the complainant by virtue of order dated 08.09.2015. Dissatisfied with the order of the District Forum Patiala dated 08.09.2015, the complainants now appellants, carried this appeal against the same..

6.      We have heard learned Counsel for the parties at considerable length and have also examined the record of the case. 

7.      The first contention, which has been raised before us, in the above referred two appeals, is whether the complaint is competent, when there is a specific provision for payment of compensation of delayed payment in buyers agreement between the parties Clause 10 (c) of buyers agreement Ex.OP-4 dated 03.05.2008, is reproduced as under :-

          "10(c) In case of delay in construction of the flat beyond the    period as stipulated subject to force majeure and other         circumstances as aforesaid under sub clause (a) above with a grace period of six months, the Developers shall pay to the     buyer compensation @ Rs.53.80 per sq. meter or @ Rs.5/- per         sq. ft of the super area of the flat per month for the period of          delay. Likewise, if the buyer fails to settle the final account and         to take possession of the flat within 30 days from the date of           issue of the final call notice/offer to hand over possession by the Developers, the buyer shall be liable to pay to the           developers holding charges @ Rs.53,80 per sq. meter or @          Rs.5/- per sq. ft of the super area of the flat per month expiry of        30 days notice."

The forceful submission of counsel for OPs is that when specific clause 10(c) exists in buyers agreement for payment of compensation, complaint filed by complainants is not competent. We have dwelt on this matter and conclude that this matter has already been settled by National Commission in "Puneet Malhota versus Parsvnath Developers Ltd" reported in 2015(2) CPJ 18. National Commission examined this point in para no.9 of the cited judgment and held that the said clause applies only in a case, where construction of the flat is delayed, but despite delay, the buyer accepts possession of the said flat from the seller and consequently, accounts have to be settled between the parties, at that stage, the buyer would pay the agreed holding charges to the seller, who will pay the agreed compensation on account of delaying the construction of the flat. The aforesaid clause, which is 10 (c) of buyers agreement in this case would not apply in the circumtances, where the buyer, on account of delay on the part of the seller in construction the flat, is no more interested in the flat subject matter of the agreement and wants to take refund of the amount, which he had paid to the seller. Now, we have examined this point, whether complainant has been ready to take the flat with such a long delay in this case or not. The version of the complainants is that OPs have not yet started the construction of the flat. The onus stood shifted upon OPs to prove that they have started construction and completed the same up to a specific stage. We have examined the documents and evidence on the record. There is no cogent evidence adduced by the OPs to prove the construction of the flat up to a specific level. The OPs have not produced affidavit of any mason, labourer or contractor on the record to prove this fact that they raised the construction up to a particular level. Even from bare glance of some photographs on the record, which are not exhibited, it is clear that only some pillars have been raised on it on the ground floor only. Consequently, we return this finding that OPs have not yet completed the construction in this case at all. Ex.OP-4 buyers agreement was executed on 03.05.2008 and there is three years period with extended three months period for completion of construction, which would come to an end in the year 2011. Now, it is year 2017 and no construction has been completed by the OPs in this case. As held by National Commission in "Puneet Malhota versus Parsvnath Developers Ltd" (supra), the compensation clause in the buyers agreement would not relieve the OPs of their solemn duty to perform their part of the agreement. The District Forum has not appreciated this matter in proper perspective and could not follow the spirit of law laid down by National Commission in Puneet Malhota 's case (supra). The total price of the flat was Rs.18,17,000/-, as per buyers agreement Ex.OP-4. The OPs even changed the flat without any consent of the complainants in this case in a unilateral manner. The complainant booked flat no. T-10-491 on fourth floor in Parsvnath Caste Rajpura. Originally, flat no. T-10-491 on fourth floor in Tower 10 was allotted to complainant. The OPs unilaterally changed it to flat no. T-11-401 in the same project due to alleged change of the lay out plan of the said project to the utter disadvantage of the complainant. The counsel for OPs relied upon Clause 8 (b) of buyers agreement Ex.OP-4 in this regard. This fact has not been established on the record by the OPs that developers were not in a position to give the possession of that particular flat due to some reasons beyond their control. There are no circumstances proved on record justifying unilaterally the allotment of another flat without the consent of the complainant. The complainant has pleaded and stated in his version that this fact was to his utter disadvantage, which was unilaterally and unauthorizedly allotted to him. This unilateral allotment of another flat was not acceptable to complainant and this allotment has also proved  deficiency in service on the part of OPs, because OPs failed to prove the circumstances justifying the allotment of this alternate flat unilaterally to the complainant to his entire disadvantage. Taking into consideration the entire evidence on the record and hearing respectful submissions of counsel for the parties, we conclude that OPs misutilized the money deposited by the complainants without completing the construction of the flat as agreed upon. When construction is not completed, there is no question of delivery of any possession thereof to complainants nor it is likely to be delivered in the near future because photographs placed on the record only show some pillars on the ground floor and nothing beyond that. The global recession reason, as projected by OPs as justifiable ground for delay, is not acceptable to us. Our own State Commission has held in "Vaneet Sood versus Unitech Limited and others", reported in 2017 (1) CLT Page 162-163 that there may be worldwide recession and crunch in the real estate business, but the OPs were bound to fulfill their commitment under the agreement for developing the project and delivering the possession of the flat to the complainants within the agreed time. This point has also been outright rejected by National Commission in Swaran Talwar versus M/s Unitech Limited in Consumer Case No. 347 of 2014, decided on 14.08.2015 by National Commission. The National Commission has held in this authority that when there is no new legislation changing any existing rules and regulations or delaying the construction of the complex nor there is any lock-out or strike by the labour, nor there is any civil commotion, war, enemy action, terrorist action, earthquake or any act of God, which could have delayed the completion of the project within the time stipulated in the buyers agreement, nor there is any evidence that OPs despite best efforts could not get labourers to complete the construction within stipulated time, it is no force majeure circumstances. The above invented force majeure circumstances would not relieve the OPs from their solemn duties to complete the construction within time. We find no such evidence on the record on the part of the OPs to substantiate the alleged circumstances justifying the delay in the construction of the project. During the arguments before us, the counsel for complainants strenuously stressed that no construction has been significantly started by the OPs in this case and as such the complainants stood deprived of their legal right of residence in the flat to be allotted to them within time. We find force in the submission of counsel for complainants on this point. When the significant construction has not yet come up and hence it is taken to be a case of non-start of construction work by OPs only justifying the refund of the deposited amount by complainants with OPs in this case till now. The submission of counsel for complainants for awarding separate compensation, other than in the shape of interest, cannot be accepted in view of law laid down by Hon'ble Supreme Court in Chief Administrator HUDA & another versus Shakuntla Devi, reported in 2017(1) CLT Page 1, wherein Apex Court has held that award of interest would have been sufficient to compensate the complainant for loss suffered by him due to delay. The point  of escalation in the cost of construction would be covered in the interest to be awarded by the Forum. The counsel for complainants cited law laid down by National Commission in  Puneet Malhota versus Parsvnath Developers Ltd" (supra), wherein National Commission has held that builder was duty bound to complete the construction in time, irrespective of recession in the market, reduction in the bookings and the alleged default on the part of some of the allottees in not making the payment in time. As per agreement, the complainants were required to pay interest @ 24% per annum  in the event of delay on their part in making the payment to OPs. National Commission held that logically, if the seller is charging interest from the buyer @ 24% per annum, it should have no hesitation in paying interest at the same rate to him in the event of its failure to complete the construction within time-frame, as agreed upon between the parties. In view of law laid down by Apex Court in Ghaziabad Development Authority versus Chander Bhan Singh, reported in 2004(3) CPJ 20 (S.C) awarding 18%  rate of interest per annum over the deposited amount from the date of deposit till date of payment would be reasonable one. We follow the dictum of Apex Court set down in the above authority.

8.      Considering the facts and circumstances of the case and law laid down in Ghaziabad Development Authority versus Chander Bhan Singh (supra) , we hold that the complainants are entitled to refund of the entire deposited amount along with interest @ 18% per annum from the date of deposit of the deposited amount till date of actual payment from OPs. The Consumer Forums are competent  under the CP Act to remove injustice, which has been done to the party. The facts and circumstances of the case and equity justify  the award of interest @ 18% per annum over the deposited amount to be paid by OPs to complainant.

9.      In view of above discussion, we accept the appeal of the appellants by modifying the order of the District Forum and hereby ordering OPs to pay the deposited amount along with interest @ 18% per annum thereon from the date of deposit till actual payment thereof to complainant. The order of amount of award of cost as awarded by District Forum is affirmed in this appeal..

11.    Arguments in this appeal were heard on 10.04.2017 and the order was reserved. Now the order be communicated to the parties. 12.         The appeals could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                         

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

 

                                                                                                         

April 11, 2017                                                             

(ravi)