Delhi

StateCommission

CC/13/384

RASAL SINGH - Complainant(s)

Versus

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

17 Oct 2019

ORDER

 

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :17.10.2019

Date of Decision : 01.11.2019

COMPLAINT NO.384/2013

In the matter of:

 

                Mr. Rasal Singh,

            S/o. Mr. Maharaj Singh,

            C/o. Kirori Mal College,

            Hindi Department,

            University of Delhi,

            Delhi-110007.                                                                                   .......Complainant

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.,

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 complainant filed a case stating that OP-1 started marketing Group Housing Complex namely ‘Parsvnath Regalia’ on land in Khasra No.823 to 825, 836 to 843 and 846 and 847 in Village Pasonda, Pargana Loni, Distt. Ghaziabad, UP. He entered into a Flat Buyer Agreement dated 02.02.08 with OP-1. He agreed to purchase flat no.804 in Towerno.8 measuring 1025 sq. ft. with an open car parking. The consideration was Rs.28,57,577/-. Around 95% of the total sale consideration has been paid by him as per the demands. Balance around 5% was to be paid at the time of offer of possession. Besides he was required to pay one time interest free maintenance deposit at the time of final payment. He took a house loan of Rs.18,70,00/- from HDFC Bank Ltd. at the interest of 10% to 13% p.a. He is living in rented accommodation for which he is paying Rs.20,000/- per month as rent. The OP assured to hand over possession by July – August, 2009 i.e. 3 years of commencement of construction. Clause 10 (a) of the Flat Buyer Agreement provided that flat was to be completed within 30 months with grace period of 6 months from the commencement of the tower.
2. He received letter dated 12.02.10 informing him of re-scheduling the completion plan. OP-1 unilaterally extended the completion date to December, 2010 and assured to compensate him for the delay by way of penalty as per Clause-10 C of the Flat Buyer Agreement. The said Clause provided for compensation @5/- per sq. ft. of the super area, per month for the period of delay. He once again  received letter dated 19.11.10 re-extending the completion date to March and June, 2011 (in 2 phases). OP-1 sent letter dated 27.01.11 assuring to complete the project by June, 2011. The said letter was not received by complainant. He sent various letters to OP-1 calling upon to offer possession of the flat at the earliest.
3. He was shocked to receive letter dated 26.06.10 sent by OP-1 informing him about levy of service tax of construction on construction of complex as introduced by Finance Act, 2010 which  was effective from 01.07.10. He was to pay the service tax on demand of payments made by him on or after 01.07.10 @2.575% in respect of basic sale price and 10.3% in respect of preferential location charges After letter dated 19.11.10 he did not receive any communication about completion or handing over of possession or about extension of date of handing over possession. He is not only loosing interest income on the amounts already paid by him but due to not receiving possession he is loosing opportunity of living in his own flat/ receiving rent from his own flat which could have helped him in repayment of housing loan taken from bank. He sent legal notice dated 24.12.12 calling upon the Ops to pay interest @24% p.a. from originally scheduled date of construction, to pay Rs.5 lakhs as compensation for mental harassment and agony, to bear liability of payment of service tax, to stop indulging in unfair trade practice. The said notice had not been responded.
4. According to Directors report of Op-1 dated 29.04.10, OP-1 advanced sum of Rs.48,54,00,000/- to its subsidiary company Parsvnath Film City Ltd. for execution of  Film City project at Chandigarh. The subsidiary company deposited Rs.47,75,00,000/- with Chandigarh Administration for Acquiring Development Right in respect of plot of land measuring 30 acrs. under agreement dated 02.03.07. Chandigarh Administration did not give possession and subsidiary company of the OP invoked arbitration. The said information was given when subsidiary company was not even in existence. Mr. Hemant Goswami activist in Chandigarh filed information in the Court of Ld. CJM, Chandigarh that there was possibility of breach of trust by public servant. Hence this complaint for reliefs claimed in the notice and additional directions to the OP to pay monthly rent being paid by complainant to his landlord. He also sought directions to Op to complete the project and offer possession.
5. OP filed Ws raising preliminary objection that the complaint was bad because of misjoinder and non-joinder of necessary parties. The bank with which tripartite agreement was entered into must have been impleaded. On account of global recession which hit the economy all over the world and had effect on Indian economy at large, the Real Estate Sector slowed down in the pace of construction. The complaint involves complicated question of fact and law which need to be proved by leading detailed oral as well as documentary evidence. The same cannot be gone into summary procedure under Consumer Protection Act. On merits it repeated  the same defence. It expressed willingness to pay penalty as per agreement.
6. Complainant filed rejoinder and his own affidavit in evidence.
7. OP filed affidavit of  Shri Madan Lal Dogra, its Dy. General Manager (CRM).
8. Both the parties have filed written arguments.
9. I have gone through the material on record and heard the arguments.
10. During arguments the counsel for complainant submitted that since OP have failed to complete the project and obtain CC till now, he is interested in refund of the amount. The counsel for the OP opposed the said request by submitting that in complaint the complainant sought possession and not refund. Not only  this even in application for interim relief moved by the complainant on 02.08.16 he sought possession only. He pointed out that in said application the complainant was aggrieved by  OP requesting him to withdraw his present complaint before  handing over possession. The counsel for complainant justified the said application by stating that complainant could not be compelled to withdraw the complaint as a pre condition for handing over possession.
11. The counsel for OP referred to various documents filed by him on 17.10.19 which includes copy of registered sale deed in respect of other flats in the same tower. He wanted to make out that when other purchases can live in the flats without Cc there is no reason why the complainant cannot do so. The counsel for complainant submitted  that complainant cannot be compelled to  commit illegality.
12. Counsel for OP relied upon decision of NC in Yash Manoj Handa vs. Parsvnath Developers decided on 14.02.19. Not only this in DLF Homes  Panchkula Pvt.  Ltd. Vs. B.S. Dhanda AIR 2019 SC 3218 it was held that when the parties have contemplated consequences of non compliance, they are bound by it. There has to be exceptional circumstance for deviation. So claim of interest@24% p.a. by the complainant is not permissible.
13. Counsel for complainant relied upon reply dated 09.05.18 received by him from Ghaziabad Development Authority in response to  application under  RTI mentioning that application for completion certificate in respect of Tower-8 has been rejected on 04.09.17. He relied upon decision of this Commission in CC No.1255/15 titled as Sheel Chand Garg HUF vs. Parsvnath Developers Ltd. decided on 30.08.18 in which the OP was directed to refund the amount with interest @12% p.a.  In CC no.553/14 titled as Raj Prashar vs. Parsvnath Build Well Pvt. Ltd decided on 08.05.18 by this bench similar order was passed. In CC no.45/15 titled as Parsvnath Exotica vs. Parsvnath Build Well Pvt. Ltd. Decided on 06.05.16 the NC directed refund with interest @12% p.a.
14. Keeping in view the facts and circumstances of the case, it is clear that OP has committed deficiency in service as it has failed to complete the project in the time promised. The promised time expired 2009 and OP is still not having completion certificate. Hence the OP is liable to refund the amount.
15. Regarding rate of interest there is no hard and fast formula in which interest has to be granted. It depends upon various factors such as whether OP has started the construction or not, completed the same or not, has obtained CC or not etc. In the instant case there is no malafide on the part of OP, it has the land, it has completed the project, it has failed to obtain  completion certificate. That is all. Moreover rate of interest has been increasing and decreasing from time to time. Now a days banks are giving interest @6% to 7% on FDs even.
16. The counsel for complainant referred to Clause 8(b) of the Flat Buyer Agreement at page-31 of the bunch of documents filed by the complainant. It recites that in case for any reason the whole or any part of the project is abandoned and/ or the flat agreed to be sold herein is deleted and by reasons thereof the developer are not in a possession to give possession of the flat, the buyer shall have not claim of any kind, whatsoever, against the developer except to the refund of the amount paid with simple interest  @12% p.a. till the date of refund. Counsel for complainant referred to this clause to seek interest @12% p.a. counsel for OP refuted the arguments by submitting that this  clause is applicable only in the circumstances mentioned therein which are abandonment, deletion. None of them is applicable in this case. Neither the OP had abandoned the project nor deleted the project. I find myself in complete agreement with the counsel for OP.
17. Counsel for complainant referred to page-46 of the bunch of documents  filed with the complaint to show that the interest paid by the complainant comes out to be 24% p.a. So the OP should pay same interest. I do not agree.
18. Counsel for complainant referred to page-68 of the bunch of documents filed with the complaint which is part of Directors report. It gives a list of projects likely to be offered in near future, in Clause (d). The flat in question does not find place in the said list. So the offer letter sent by the OP is fake. It is not necessary to go into this controversy as I have already held above that there is a deficiency on the part of OP and complainant is entitled to refund.
19. There is no provision in the Consumer Protection Act for grant of interest. Interest is always granted  in the shape of compensation. So  complainant cannot get interest and compensation both. In this regard reliance can be placed on decision of NC in Laxmi Vilas Bank Ltd. Vs. P.R. Krishnan I (1995) CPJ 43, decision of this Commission in Appeal No.FA-287/2006 titled as DDA vs. Rajan Bhatia decided on 03.05.06.
20. For the same reason the complainant  cannot get rent being paid by him to his landlord. Either he could have the flat or he can get interest on payment made by him or he can get rent.
21. In view of the above discussion the OP-1 is directed to refund Rs.27,17,199/- with interest @9% p.a. from the date of committed possession i.e. 01.09.09 as claimed by the complainant till the date of refund.
22. Copy of the order be sent to both the parties free of cost.
23. File be consigned to record room.

 

 

(O.P. GUPTA)                                                    

  MEMBER (JUDICIAL)