Haryana

StateCommission

CC/199/2017

DR.RENU BERI W/O SHEEL KANT PAJNI R/O H.NO.31 GIAN NANAK NAGAR NEAR TRIPURI PATIALA 147004 - Complainant(s)

Versus

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

NITIN SUD

30 Nov 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.199 of  2017

Date of the Institution:03.04.2017

Date of Decision: 30.11.2018

 

1.      Dr.Renu Beri aged about 43 years w/o Sh. Dr. Sheelkant Pajni

2.      Dr.Sheelkant Pajni aged about 47 years s/o Sh. Dr.Krishan Kumar Pajni

Both residents of H.No.31, Guru Nanak Nagar, Near Tripuri, Patiala 147004.

                                                Complainants

Versus

 

1.      M/s Parsvnath Developers Limited, through its Managing Director, Registered & Corporate Office, 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001.

2.      M/s Parsvnath Developers Limited, through Sh.Yudhvir Arora, Senior Manager (CRM & Marketing), Site Office Parsvnath Royale, Sector 20, Panchkula.

 3.     M/s Realpro Assets Ltd., through its Managing Director, House No.3406, Sector 28-D, Chandigarh.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Nitin Sood, Advocate for complainant.

Mr.B.R.Madan, Advocate counsel for opposite party Nos.1 and 2 (defence of O.P.No.1 and 2 was struck off vide order dated  27.07.2018.

Mr.Ankur Bali, Advocate for opposite party No.3.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          Complainant-Dr. Renu Beri and  another filed complaint  under Section 17 of Consumer Protection Act, 1986 (In short Act) pleaded therein that they booked 3 BHK flat bearing No.203 in Tower-5, second floor having an approx 1780 sq. ft. under name “Parsvnath Royale” in Sector 20, Panchkula a project to be developed by opposite parties No.1 and 2 . The basic sale price of the flat was Rs.57,85,000/-.  They deposited Rs.44,44,514/- through cheques to the O.P.Nos.1 and 2. Flat buyer’s agreement was executed between the complainant and the opposite party Nos.1 and 2 on 01.07.2011.  The construction of the flat was to be completed within 36 months with grace period of 6 months on receipt of sanction of the building plans, which was sanctioned in the year 2007.  They paid Rs.46500/- per month as equated monthly installments towards the loan amount.  the O.P.No.3-M/s Realpro Assets Ltd, who was the marketing associate of O.Ps. No.1 and 2 has received a sum of Rs.8.15 lacs as premium from the complainants towards the flat in question i.e. Rs.7.15 lac vide cheque No.298355 drawn on Oriental Bank of Commerce, Tripuri, Patiala and Rs.1,00,000/- vide cheque No.365922 drawn on Oriental Bank of commerce, Tripuri Patiala and receipt was also issued. The complainant had deposited Rs.44,44,514/- to the OP. Nos.1 and 2 at different phases. As per clause No.10 (a) and (c) of the agreement, O.Ps. were liable to hand over the possession of the flat within 36 (months) +6 months (grace period)=42 months therefrom, but, till date construction of the flats were not completed and possession was not delivered to him.   They requested for compensation for the delayed period as per clause 10 (c) of the agreement, but, concerned official of the O.Ps. assured that benefit of the delayed payment will be credited into the account and no further installment will be asked.   The O.Ps. have committed the unfair trade practices and also cheated the complainant and other innocent people also. The complainant requested the O.Ps. to refund the amount but till date O.Ps. were not paid any heed to the request of the complainant.  Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to make payment of a sum of Rs.5259514/-  which had been deposited by the complainant alongwith interest  12% per annum  as charged by them till the date of payment and to pay compensation of Rs.50,000/- for harassment, Rs.50,000/ on account of deficiency in service and compensation of Rs.55,000/ as litigation expenses.

2.                 Notice of the complaint was issued against the O.Ps.but, due to non filing of written version on behalf of O.P.Nos.1 and 2, defence of the O.P.No.1 and 2 were struck off and only the reply was filed by O.P.No.3, it was alleged that O.P.Nos.1 and 2 and complainants had entered into an agreement dated 01.07.2011. The answering respondent has no legal liability towards the complainants. The entire transanction had been directly made between complainants and O.P.Nos.1 and 2. The answering respondent denied that complainant paid Rs.8,15,000/- to it. The complainants themselves have brought on record the receipts amounting to Rs.8,15,000/- issued by the answering OP in lieu of the payment made to them by the complainants and said payments had duly been adjusted by O.P.No.1 and 2.  In the said receipts, the signatures made by the director seem to be different.  Thus there was no deficiency in service on the part of the O.P. No.3.

3.                When the complaint was posted for recording evidence of the parties, the complainants in his evidence has tendered the affidavit of Dr.Sheel Kant Pajni Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-17 and closed his evidence.

4.                On the other hand in order to rebut the evidence led on behalf of the complainant,  the learned counsel for O.P No.3 had also tendered the affidavit Ex.OP3/A that of Mr. Vijay Kumar, Director M/s Real Pro Assets Limited and closed his evidence. 

5.                The arguments have been advanced by Sh.Nitin Sood, the learned counsel for the complainant as well as Mr.B.R.Madan, the learned counsel for the opposite party Nos.1 and 2 and Mr. Ankur Bali, the learned counsel for the opposite party No.3.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question is whether the present complainants are entitled to get refund of the amount which they have already deposited alongwith the interest 

7.                While unfolding the arguments it has been argued by Sh.Nitin Sood, Advocate learned counsel for the complainants that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that an amount of Rs.52,59514/- had been paid by the complainant to the O.Ps.  As per the buyers agreement Ex.C-3 and the terms and conditions incorporated therein including date of delivery of the possession, the possession complete in all respect was to be delivered to the complainants by the O.Ps. which includes six months grace period.  

8.                The period within which, the possession of the unit was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount which he had already paid alongwith interest. 

9.                On the other hand, it has been argued by Sh. B.R.Madan, the learned counsel for the O.P. Nos.1 and 2 that he had only paid Rs.44,44,514/- instead of Rs. Rs.52,59,514/- with them, so he is not entitled for Rs.5259514/-  alongwith interest  because  there was a delay in making the payment of the amount.  Several reminders issued to them regarding balance payment, but, they have not deposited the balance amount.  It is true that the documents were executed between the parties which includes the buyers agreement which contains all the terms and conditions for allotment, for payment of the installments, charging the interest for delayed payment and delivering of possession which includes six months grace period.    Under these circumstances, the refund cannot be granted alongwith interest and the complaint may be dismissed. 

10.              Learned counsel for opposite party No.3 argued that  complainants had invested in the project of O.P.Nos.1 and 2.  It was specifically denied that Rs.8,15,000/- lacs was handed over to me by complainants.   The complainants were not entitled for the amount as prayed for.

11.              As per the submissions made by Sh.Nitin Sood  the learned counsel for the complainant as well as Sh.B.R.Madan, the learned counsel for the opposite party Nos.1 and 2 and Mr. Ankur Bali, Advocate for opposite party No.3 and after perusal of the entire record as well as appreciation of the evidence during the prosecution of the complaint.  It is true that the O.P.Nos.1 and 2 have launched a housing scheme under the name and style of  “Parsvnath  Royale” in the area of District Panchkula.  The complainants had opted to book a flat and initially, had deposited an amount of Rs.8,67,180/- thereafter, the buyer agreement EX.C-3 was executed between the parties on 01.07.2011 and as per sub clause 10 (a) of the agreement, it contains the terms and conditions of completion of the project and the most important part is that delivery of the possession within the period of 36 months a grace period of six  months has further been allowed.  As per the details of the payment mentioned in para No.8 of the complaint, the complainants had paid sum of Rs.8,15,000/- against the receipt  issued by Real Pro-O.P.No.3.  In order to prove the amount, learned counsel for the complainants has placed on receipts of O.P.No.3 i.e. Ex.C-6 (colly), so, it is crystal clear that complainants paid Rs.8,15,000/- to O.P.No.3, so  O.P.No.3 is liable to pay the same alongwith interest.

12.              The buyers agreement was executed and as per the clause 10 (a) of the buyers agreement, the possession of the flat was to be delivered within 36 (months) plus 6 months (grace period) 42 months.   Still the period of 42 months had already expired and while advancing the arguments, it has been fairly conceded on behalf of the O.Ps. that the project is yet to be completed.  The possession cannot be delivered under these constraint circumstances the O.ps. cannot be allowed to utilize or to enjoy the hardened money deposited by the complainants for getting the unit booked for their livelihood. It is the normal trend of the developers/O.Ps. that they would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed.  The complainant had to wait more than period of 42 months for delivery of possession.  In such like matters the court has to be callous enough and the O.Ps. are to be dealt with severe hands  and cannot be allowed to mis-utilizing the funds of the investors or to have  a mis-directions of funds, which ultimately has been resulted into non-completion of the project and ultimately, it is the complainants or the investors who had to suffer.  In such circumstances, it is evidently clear that complainants had already paid a sum of Rs.44,44,514/-  to O.P.Nos.1 and 2 and as such the complainants are entitled to get the refund of the amount in all proposition, the possession of the dwelling unit cannot be delivered even in coming years and moreover a period of more than three years have already been expired, hence the O.P Nos.1 and 2. are directed to make a payment of Rs.44,44,514/- alongwith interest @ 12% per annum  from the date of respective deposits and till realization.     O.P.Nos.3 is also directed to pay Rs.8,15,000/- to  them  alongwith interest @ 12% per annum from the respective deposits and till realization. Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period of three months, in that eventuality, the complainants would further be entitled to get the interest  18% per annum, for the defaulting period.   The complainant is also entitled  of Rs.50,000/- for compensation of mental agony and physical harassment.  In addition, the complainants are also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

November    30th, 2018                                             Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.