Delhi

StateCommission

CC/13/284

NITIN GUPTA - Complainant(s)

Versus

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

29 Jul 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision:    29.07.2019

 

 

Complaint Case No.284/2013

 

 

Mr. Nitin Gupta

R/o D-1/23, Vasant Vihar,

New Delhi-110057.                                                                       …. Complainant

 

Versus

 

Parsvnath Developers Limited

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Delhi-110032.          

 

ALSO AT:

Parsvnath Developers Limited

6^TH Floor, Arunachal Building,

19, Barakhamba Road, New Delhi-110001.

       … Opposite Party

 

CORAM

Salma Noor, Presiding Member

 

1. Whether reporters of local newspaper be allowed to see the judgment?

    

2. To be referred to the reporter or not?

 

 

Ms. Salma Noor, Presiding Member

 

1. A complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”) is filed by the complainant, Mr. Nitin Gupta wherein it is stated that OP had launched a residential project by the name of Parsvnath Privilege, Greater Noida, UP in the year 2006.  The complainant after seeing the advertisement and brochures of the project booked a residential flat measuring 1855 sq. ft. at the aforesaid project by paying booking amount of Rs.10,00,000/- on 04.05.2006. The total price of the flat was Rs.54,88,071.50p/-. Thereafter, a flat bearing Unit No.T-3-1502 was allotted to the complainant vide allotment letter dated 23.02.2007.  It is stated that at the time of booking the complainant was assured that possession will be handed over within 36 months by OP.  It is stated that thereafter, complainant paid another sum of Rs.3,72,004/- on 12.04.2008 to OP as part payment for the said apartment. It is stated that in all complainant has paid a sum of Rs.13,72,004/- to OP but OP has not completed the construction, which was supposed to be completed by the year 2009 and there is delay of more than 03 years on the part of OP in handing over the possession of the apartment booked by the complainant.
2. It is stated that the complainant approached the OP for grant of compensation on account of delay in handing over the possession and for not executing the sale deed. It is stated that the OP instead of giving compensation on account of delay or adjusting this amount in future payments threatened the complainant of cancelling the allotment. It is stated that OP has not obtained the requisite NOC from fire department, license for operating lift and other clearances/requirement as stipulated for construction of project. 
3. Alleging deficiency in service on the part of OP, present complaint is filed seeking directions to handover the possession of the apartment to complainant and to pay compensation on account of delay in possession and alternatively direction of payment of Rs.13,72,004/- with interest @18%  p.a. is also made by the complainant. There is also a prayer for award of compensation and litigation expenses.
4. OP filed written statement wherein apart from denying the allegations of the complainant, the OP, inter-alia, raised several preliminary issues that the complaint involved complicated question of facts and law which need to be proved by leading detailed oral as well as documentary evidence and that since the proceedings before the consumer courts are summary in nature, this Commission has no jurisdiction to entertain the present complaint.  On merits, OP has admitted that the flat in question was booked by the complainant.  OP has also admitted the payments made by complainant.  It is alleged that OP has sent to complainant two copies of Flat Buyer Agreement vide letter dated 18.05.2007 and even later vide letters dated 08.06.2007, 01.10.2007, 13.11.2008, 20.07.2010, 11.09.2010 and 04.10.2010 for return of the signed copy of the Agreement. However the OP did not receive the other copy of the agreement. It is stated that complainant was informed about the payment vide various reminders, however, complainant failed to make payment and the OP issued final notice.  It is stated that complainant is not entitled for any relief as he himself is in default. It is stated that OP vide letter dated 10.06.2010 informed all it’s customers that due to global recession the development work at the site slowed down and re-scheduling of construction work i.e. March 2012. OP has denied that complainant was assured that possession shall be handed over within 36 months. It is stated that clause 10(a) of the Agreement states that construction of the flat is likely to be completed within a period of 36 months from the date of commencement of construction of particular block in which the flat is located. It is further stated that as per clause 10 (c) of the Agreement, the rights of the complainants are well protected as OP has agreed to give compensation @ Rs.5/- per sq. ft. of the super area of the flat per month for the period of delay.  OP has denied deficiency in service and unfair trade practice on their part.  It is denied that OP is liable to pay interest, compensation etc. as is claimed by the complainants.  A prayer is made for dismissal of complaint.
5. Rejoinder is filed by the complainant to the written statement of the OP wherein the allegations made by the OP against complainant are denied. The complainant has reiterated averments of the complaint case.
6. Both the parties filed evidence in the form of affidavits and also filed written arguments.
7. Complainant has filed his own affidavit wherein averments made in the complaint case are reiterated on oath.  Complainant has proved on record copy of brochures/pamphlets printed and circulated by OP pertaining to the project Ex-CW1/1; copies of receipts of payments issued by OP to the complainant from time to time Ex-CW1/2 (Colly); copy of legal notice dated 10.09.2012 issued by complainant Ex-CW1/3 and copy of letter dated 14.09.2012 of OP admitting delay in construction Ex-CW1/4.
8. OP has filed evidence by way of affidavit of Shri Ramesh Chander Gupta, its General Manager (CRM) who has reiterated contents of written statement on oath and has exhibited copy of board resolution dated 12.05.2015 Ex. OP -1, copies of letters dated 08.06.2007, 01.10.2007, 13.11.2008, 20.07.2010, 11.09.2010 and 04.10.2010 showing that Agreement was sent to complainant Ex. OP -2(Colly), copies of various payment reminders dated 23.02.2007, 11.08.2008, 15.10.2008, 11.02.2008, 06.09.2010, 14.04.2011 Ex-OP -3 (Colly); copy of the ledger as on 01.09.2014 Ex-OP-4; copy of letter dated 10.06.2010 informing about delay Ex-OP-5; copy of reply dated 14.09.2012 Ex-OP-6.
9. Ld. Counsel for complainant has contended that OP has failed to fulfill its commitment and did not hand over the possession within 36 months as was assured by the OP. It is contended that there is no likelihood of the same being completed in near future.  It is contended that the complainant has no option but to seek the refund of money. It is contended that nothing has also been placed on record by the OP to substantiate that due to recession in the market, OP has not been in a position to complete the project. It is submitted that frivolous stand is taken by OP in this regard. It is submitted that money deposited by complainant be refunded with 18% interest along with suitable compensation and costs of litigation.
10. Ld. Counsel for the OP has contended that due to phenomenon of global recession which affected the real estate section in India, development work at the site could not be completed.  It is submitted that it is the endeavour of the OP to hand over the possession to the complainant at the earliest.  It is contended that even if there is a delay on the part of OP in completing the project, the right of the complainant is duly protected and as such the complaint filed is baseless.  It is contended that there is no deficiency in service on the part of the complainant.
11. Counsel for the parties are heard and material on record is perused.
12. It may be mentioned that in written statement preliminary objection is raised that the complaint involves complicated question of law and facts as such the same can’t be entertained by the Commission. However, the same is not pressed at the time of arguments. Further we don’t find any complicated question of law and facts being involved in the present case. Accordingly, the aforesaid objection is rejected.
13. It is admitted position that complainant was allotted flat bearing No. T-03-1502 vide letter dated 23.02.2007. It is also the admitted position that the possession to be delivered by OP within a period of 36 months.  It is also admitted that no possession has been offered by the OP till the filing of the complaint or even thereafter and even till date.  It is also admitted position that OP has received a sum of Rs.13,72,004/- from the complainant. 
14. OP has also raised additional demands vide the aforesaid letters/reminders. Complainant has alleged that additional demands are not legitimate. Without going into said controversy, when the complainant has opted for the Construction Linked Plan and the construction has not been complete till date, in such circumstances, OP was not justified in raising further demands. The purpose of aforesaid letters was to collect more money, which is an unfair trade practice.
15. OP has alleged that possession was subject to clause Force Majeure circumstances. It is contended that delay in construction is due to recession in global market, which is a force majeure. However, in its reply dated 14.09.2012 to the legal notice issued by complainant, the OP though stated that delay in construction is owing to the adverse circumstances beyond the control of the company, the global economic meltdown and that construction work in Tower No.12 to 18 is going on its momentum and has reached on advance legal and 11^th floor is expected to be completed by the end of year 2013, but OP has failed to inform the progress of Tower -03 where the flat was allotted to the complainant. OP has failed to place on record any document showing that there was any construction going on the tower where the flat in question has been allotted to the complainant.
16. Ld. Counsel for complainant has contended that there is a substantial delay of over 13 years.  It is stated that the complainant deserve to be compensated.  It is submitted that complainant has suffered a lot at the hands of OP.  Ld. Counsel for complainant submits that complainant has been deprived of the use of flat on account of default by OP which has caused serious injury to him as such the complainant be given suitable compensation. It is submitted that OP has failed to explain the delay in completion of project and has rather mis-utilized the funds of complainants Ld. Counsel prays for grant of suitable compensation. 
17. On the other hand, Counsel for OP has submitted that the complainant is entitled for compensation as per clause 10(c) of the Agreement as per which provides that in case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances then the Developer shall pay to the Buyer compensation @ Rs. 53.80 (Rupees Fifty Three and Paise Eighty only) per sq. meter or @ Rs. 5/- per sq. ft. of the super area of the Flat per month for the period of delay. 
18. It is admitted position that there is no agreement between the parties, therefore, no reliance can be placed on any clause of the agreement.  It is also admitted case that the OP has failed to complete the construction within the period of 36 months. The period of 36 months was rescheduled by the OP vide letter dated 10.06.2010 wherein the proposed time of completion of the project was March, 2012. The said period had lapsed long back. The present complaint is filed in the year 2013. Even at the stage of final arguments, the construction has not been completed. At the time of arguments, Ld. Counsel for OP has failed to give any specific period as to when the construction is likely to be completed. The stand of the OP is that the project could not be completed on account of recession in the real estate market. However, OP has not been able to show that there were justified reasons for delay in handing over the possession.  The global recession having hit the economy, as is alleged, is no ground to explain the delay and even till date i.e. after more than 13 years, there is no offer of possession from the OP to the complainant.  The same amounts to deficiency in service on the part of OP. In these circumstances, the complainant is justified in seeking refund of the amount which he has paid to the OP. The hard earned money of the complainant has been retained by the OP for number of years. The same has caused mental agony and harassment to the complainant.
19. As discussed above, OP has not been able to show any justified reasons for delay in completion of project.  There is delay of over 13 years.  The complainant has made out a clear case of deficiency in service on the part of the OP. The complainant cannot be compelled to wait for indefinite period for the possession of flat allotted to them, whenever it is offered by the OP.       
20. In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, Hon’ble Supreme Court has held that when possession of property is not delivered within the stipulated period, the delay so caused is denial of service.                       
21. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442, it is held by Hon’ble Supreme Court that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
22. It has been held by the National Commission in catena of judgments that when possession of the allotted flat is not delivered within the specified time, the allottee is entitled to refund of amount paid, with reasonable interest thereon from the date of payment till the date of refund. Reliance is placed on the judgments of National Commission titled Subodh Pawar v. M/s Ireo Grace Realtech Pvt. Ltd. & 4 Ors. dated 24.09.2018 in CC No.1998/2016 and Amit Arora v. M/s Ireo Grace Realtech Pvt. Ltd. dated 27.03.2019 in CC No.696/2017.
23. Present is a clear case of deficiency in service on the part of OP. Complainant is legally entitled to seek refund of the money deposited by him with OP along with appropriate compensation. The complainant has prayed for award of interest @ 18% p.a. Ld. Counsel for OP has opposed the award of interest by contending that same is on very higher side. However, keeping in mind the facts and circumstances of the case, I award compensation in the form of interest @ 12% p.a. from date of deposit till realization. Accordingly, OP is directed as under:

1)              The Opposite Party is directed to refund the amount deposited by the complainant with the OP i.e. Rs.13,72,004/- along with compensation in the form of interest @ 12% p.a. from the date of each deposit till realization.

 

2)              The Opposite Party shall also pay a sum of Rs.25,000/- towards co       `st of litigation to complainant.

 

24.             A copy of this order as per statutory requirements be sent to the parties free of cost. Thereafter the file be consigned to record room. 

 

 

(Salma Noor)

Presiding Member