Delhi

StateCommission

CC/13/490

PANKAJ GARG - Complainant(s)

Versus

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

27 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision: 27.09.2019

 

Complaint Case No.490/2013

 

Shri Pankaj Garg,  

S/o Late Shri Mahavir Prashad,

R/o 54, Shankar Nagar,

Delhi-110051.                                                      …. Complainant

 

Versus

 

1. Parsvnath Developers Limited

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Delhi-110032.                                       

 

2. The Managing Director,

Parsvnath Developers Limited

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Delhi-110032.                                       

… Opposite Parties

 

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. This Consumer Complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act) has been filed by the complainant Pankaj Garg against the Opposite Parties, Parsvnath Developers Ltd. and another, wherein, it has been alleged that complainant entered into an agreement dated 21.07.2007 with the OP in respect of the flat bearing No.T6-302 in Tower No.T6 in its proposed township, namely, ‘Parsvnath Privilege’ at Greater Noida. It is alleged that complainant paid consideration of Rs.10,00,000/- to OP for the said flat and further an amount of Rs.3,21,687/- as demanded by OP No.1, which were duly acknowledged by it. The total consideration of the said flat was Rs.52,86,750/- with car parking for an amount of Rs.2,00,000/-. As per clause 4(a) of the agreement, the payment plan attached with this agreement has also been signed by OP. As per clause 10(a) of the agreement, the possession was to be handed over in 36 months with a grace period of six months.  However, the possession has not been handed over to the complainant as the building itself is not complete. Accordingly, the complaint has been filed for refund of the paid amount i.e. Rs.13,21,687/- alongwith interest @24% p.a. alongwith damages on account of opportunity cost of money by the complainant and for unfair trade practice, to the tune of Rs.26,433,374/- and compensation of Rs.2,00,000/-.
2. The complaint was resisted by filing the written statement by the OP. Both the parties filed affidavit evidence in the matter. Heard the learned counsel for the parties and perused the record.
3. Learned counsel for the complainant stated that as per the possession clause 10(a) of the apartment buyer agreement, the possession was to be handed over within 36 months with a grace period of six months. However, OP has not offered the possession so far. It is stated that when in the end of 2010, the complainant contacted the OP about delivery of possession and enquired about the status of construction, he was told that he will get possession by the month of October-November, 2011. It is further stated that when in the month of October 2011, the complainant visited the site, there was nothing existing in the name of construction at the site, specifically Tower No.T6, wherein the flat was allotted to him. Therefore, complainant issued legal notice calling upon the OP to refund the amount of Rs.13,21,687/- paid by the complainant to the OP. However, neither any reply was received nor the amount refunded.
4. 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 24% interest along with suitable compensation and costs of litigation.
5. 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.
6. The contention of the Learned Counsel for the OP that the Complainant is not 'Consumer' and that he is only  an 'Investor'  is completely unsustainable in the light of the judgment of the Hon’ble National Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which Hon’ble National Commission has laid down the principle that the onus of establishing that the complainant was dealing in real estate is on the Developer, which in the instant case they have failed to discharge or file any documentary evidence to prove their case that the Complainant is 'Investor' and not 'Consumer'. Therefore I am of the considered view that the Complainant is 'Consumer' as defined under Section 2 (1)(d) of the Act.  
7. The other contentions raised by the Opposite Party that the period of delivery of possession is 36 months as defined in clause 10 (a) is not sacrosanct as it is stated in the said clause that "Construction of the Flat is 'likely' to be completed within a period of thirty six months" and therefore 'Time is not the essence of the contract' and the delay is attributable to Force Majeure Events, and therefore no deficiency of service can be attributed to them is totally unsustainable as the Opposite Party could not substantiate by means of any documentary evidence  that the project was delayed by Force Majeure Events, except for stating that there was global recession, which affected the real estate sector, leading to the delay. The submission, viewed from any angle, cannot be said to be a "Force Majeure Event". The Opposite Party has not filed any material on record to prove that the reasons were beyond their control.
8. As no material has been produced by the Opposite Party to prove that the completion of construction and offer of possession has been delayed on account of reasons beyond their control, there is no justification for the said delay. I find it a fit case to place reliance on the judgment of the Hon’ble National Commission in Emmar MGF Land Ltd. & Ors.  vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery it is the discretion of the Complainant whether he/she wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest. In the instant case, the Complainant sought for refund of the principal amount with interest and compensation as construction is still not complete.
9. I am of the considered view that the Complainant cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on Force Majeure clause while retaining the amounts deposited by the Complainant, is not only an act of deficiency in service but also of unfair trade practice, especially in light of the view and the fact that the Developer charges interest @ 24% p.a.  for any delay in the payments made by the Flat purchasers, but at the same time, stipulates in Clause 10(c) of the Agreement that compensation would be paid at Rs.53.82 per sq. meter or Rs.5/- per sq. ft. of the super area per month for the period of delay, which approximately amounts to only 1.5% per annum. I am of the view that such terms in Clauses are extremely unfair and one-sided and fall within the definition of 'unfair trade practice'  as defined under Section 2(r) of the Act.
10. At this juncture, I find it a fit case to place reliance on the recent judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Apex Court has observed as follows:

 

"6.7.    A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder.    The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

 

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent - Flat Purchaser. The Appellant - Builder could not seek to bind the Respondent with such one-sided contractual terms."

 

11. For all the reasons stated above, this judgment squarely applies to the facts and circumstances of this case. I find it a fit case to place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), in which the Hon'ble Apex Court has observed as hereunder:

 

"..........It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016.  This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.

 

In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."

 

12. In the instant case also agreement was executed between the parties on 21.07.2017 and till date no offer of possession has been made by the OP, the complainant cannot be made to wait indefinitely for possession of the unit, as the construction is yet to be completed even after a period of more than 12 years from the date of Agreement. Therefore, I am of the considered view that the Complainant is entitled for refund of the principal amount with reasonable interest.                       
13. 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.
14. It has also 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.
15. Present is a clear case of deficiency in service and unfair trade practice 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 @ 24% 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.13,21,687/- 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 cost of litigation to complainant.

 

16. 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