Punjab

Patiala

CC/15/66

Lalit Kumar s/o late Sh Bal Krishan - Complainant(s)

Versus

M/s Parsvnath Developrs Ltd. - Opp.Party(s)

Sh .V. P. Shukla

08 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No.CC/15/66  of 30.3.2015

                                      Decided on:        8.9.2015

 

 

1. Lalit Kumar son of late Sh.Bal Krishan
2. K.A.Jain son of Sh.Shadi Lal Jain,
3. Both residents of H.No.44-B, Kitchlu Nagar,Civil Lines, Ludhiana, now at C/o Jain sons, 18, Guru Nirnkari Colony, opposite Deffodils Beauty Parlour Bombay Tyre Road, Sunder Nagar, Ludhiana.

 

                                                                   …………...Complainants

                                      Versus

 

1.      M/s Parsvnath Developers Limited,6^th Floor, Arunachal Building,19,Barakhamba Road, New Delhi-100 001.

2.      M/s Parsvnath Developers Limited, Parsvnath Metro Tower, Near Shahdra Metro Station, Shahdra, Delhi-110 001.

 

                                                                   …………….Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

                                     

                                                                            

Present:

For the complainants: Sh.V.P.Shukla, Advocate

For Ops:                        Sh.P.S.Jaggi,Advocate                 

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that he had booked a three bed room flat No.T-10-491 (4^th  floor) in tower No.T-10 having approximate area of 1580 sq. ft. situate in Parsvnath Castle Rajpura (Punjab) with the Ops for a consideration of Rs.18,17,000/- vide agreement dated 3.5.2008 under Plan-A(Down Payment Plan with 12% rebate). The entire sale consideration was deposited by the complainants as down payment against proper receipts and the same also included the deposit of Rs.50,000/- towards open space parking charges.Nothing remained due to be deposited by the complainants.
2. As per clause 10 of the agreement the construction of the flat had to be completed within a period of 36 months from the date of the commencement of the project. However, the Ops failed to raise the construction and thus the Ops committed the breach of the terms of the agreement and thus the Ops misappropriated the amount deposited by the complainant with them. The complainant got the Ops served with  legal notices dated 24.3.2014 and 14.10.2014.The Ops failed to respond the first notice while gave a vague reply to the second notice.
3. It is further averred by the complainant that the complainant failed to receive any notice from the Ops regarding the payment of the balance sale consideration and regarding the delivery of the possession of the flat and completing of the other formalities. Vide the legal notice got sent earlier on 24.3.2014 and vide legal notice dated 14.10.2014, the complainant requested the Ops either to hand over the possession of the flat with compensation or to refund the amount with interest.
4. It is also the plea taken up by the complainant that under Clause 10 (c) of the agreement it is provided that in case construction of the flat is delayed beyond the stipulated period subject to force majeure and other circumstances, the developer shall pay to the buyer the 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 and therefore, the complainant is entitled to get the compensation under the said criteria from the Op. Accordingly the complainants brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to deliver the possession of the flat or to refund the amount of Rs.16,82,610/- with interest @12% per month from the date of the deposit and in the alternative the ops be directed to pay compensation @ Rs.53.80 per sq.meter or Rs.5/- per sq.ft.of the super area of the flat per month for the delayed period.
5. On notice, the Ops appeared and filed their written version. The Ops have not denied the complainants having entered into the agreement with them  having booked flat No.T-10-491 4^th floor in Tower No. T-10 having approximate floor area of 1580 sq.ft. on 3.5.208 but it is denied that the value of the flat was Rs.18,17,00,000/- and rather the cost of the flat is Rs.19,67,000/-.It is also the plea taken up by the Ops that vide their letter dated 17.6.2009, the Ops had changed the allotment of the flat from T-10-491 4^th floor to T-11-401 in accordance with Clause 8(b) of the Flat Buyer Agreement dated 3.5.2008, due to certain changes in the original lay out plan.
6. It is further the plea taken up by the Ops that the construction of the flat had to be completed within 36 months with a grace period of six months from the date of the commencement of the construction on receipt of the building plans etc. However, for reasons beyond the control of the Ops, the delivery of the possession of the flat of the complainant was delayed, in respect of which the complainant was assured at all times that he will be duly compensated in terms of Clause 10(c) of the Flat Buyer Agreement. Due to Global recession in the real estate industry all over India during the last few years the circumstances were rendered beyond the control of the Ops and as a result the construction on the project was delayed.The Ops had started the construction work in a phased manner. The Ops had sent the offer for fit out letters to the allottes with receipt to Tower No.7 in the project and the construction of Towers bearing Nos.6,8,9&10 was almost on the verge of completion regarding which also the letters for fit out shall be sent to the allottees. The first roof slab has already been cast in tower 11 in which the flat of the complainant is situate. The Ops have also detailed out clause 10(a) of the agreement which provides: “Construction of the Flat is likely to be completed within a period of thirty six (36 ) months, extendable by six(6) months from the date of commencement of construction on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints of restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developers and subject to timely payments by the Flat Buyers in the Scheme. No claim by way of damages/compensation shall lie against the Developers in case of delay in handing over submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement.”   After denouncing the other averments of the complaint, going against the Ops, it was prayed to dismiss the complaint.
7. In support of their complaint, the complainants produced in evidence Ex.CA, the sworn affidavit of the complainant Sh.Lalit Kumar alongwith documents Exs.C1 to C14 and the complainant Lalit Kumar, closed evidence of the complainants.
8. On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Ajay Kashyap, Additional General Manager (CRM) of the Ops at Shahdara, Delhi alongwith documents Exs.OP1 to OP7 and closed their evidence.
9. The Ops filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
10. The complainants have asked for three pronged reliefs, firstly the delivery of the possession of the flat, secondly the refund of the payment of Rs.16,82,610/- deposited by the complainant with interest @12% per month from the date of the deposit and thirdly, in the alternative the payment of the compensation under clause 10 (c) of the Flat Buyer Agreement @ Rs.53.80 per sq.meter  or @ Rs.5/- per square ft. of the super area of the flat per month for the delayed period.
11.  When a specific Clause i.e.10( c) is incorporated in the agreement Ex.OP4 arrived at between the parties, which provides that in case of delay in construction of flat beyond the period as stipulated subject to force majeure and other circumstances, the developer shall pay to the buyer compensation @ Rs.53.80 per square meter or Rs.5/- per Square ft. of the super area of the flat per month for the period of delay, there is no question of the complainants asking for any refund of the price of the flat deposited by them and consequently the complainants cannot ask for the delivery of the possession of the flat. Even no clause is contained in the Flat Buyer Agreement,Ex.OP4,which enables the complainants to ask for the refund of the price of the flat and similarly there is no clause contained in the agreement which enables the  perspective buyer to ask for the delivery of the possession of the flat.Clause 10(b) of the agreement provides that the developer on completion of construction shall issue a final call notice to the buyer , who shall remit all dues within 30 days thereof, execute sale deed and take possession of the flat. The buyer shall be liable for payment of all taxes, levies, outflows, and maintenance charges in respect of the Flat from the dates these are levied/made applicable irrespective of the fact that the buyer has not been enjoying benefit of the same. Clause 10 (c) of the agreement provides: “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, 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. Likewise, if the Buyer fails to settle the final account, execute sale deed and take possession of the Flat within 30 days of the final call notice by the Developer, the Buyer shall be liable to pay to the Developer charges @Rs.53.80 per sq.meter or @ Rs.5/- per sq.ft. of the super area of the Flat per month on expiry of 30 days notice”.
12. Therefore, the remedy available with the complainants on account of deficiency of service on the part of the Ops was to ask for the payment of the compensation for delayed period in respect of delivery of the possession of the flat as provided under clause 10(c).
13. Now we are to see as to when the liability of the Ops to pay the compensation for the delay in delivery of the possession of the flat had to start. It is the plea taken up by the Ops that they had started the construction work in the phased manner in the project and that the construction in Tower Nos.6,8,9 and 10 is almost on the verge of the completion . The first floor roof slab has already been laid in  Tower No.11 where the flat of the complainant is situate. There is however, no document produced on file by the Op to show as to when construction of Tower No.11 consisting of flat no.401 of the complainant had started. Here, it is important to note that the complainants got the Ops served with the legal notice dated 24.3.2014( copy Ex.C6) as averred in para no.6 of the complaint, regarding which the Ops have not made a denial in the written version and vide which it was disclosed in para no.3 of the notice that the possession of Tower No.10 had been completed by the company and therefore, the possession should have been delivered to the complainants but the Ops voluntarily and without assigning any reason changed the number of the Tower  to T-11-401. It was further disclosed in para no.4 of the notice that the Ops were required to issue a final call notice for the payment of all dues and for taking possession, registration of the sale deed and completion of other legal formalities. Thus, the ops had the occasion and the opportunity to reply the said legal notice by way of stating that they had already raised construction in Tower No.11 having cast the first floor roof slab but no such reply was given by the Ops. May that as it be, it was for the Ops to have lead the evidence to show as to when they started the construction of Tower No.11. Afterall the Ops must have maintained one or the other record regarding the construction of Tower No.11, regarding the payment made to the contractor, masons, labourers etc. but no such evidence is lead by the Ops, in the absence of which, we have to calculate the period regarding the construction of Tower 11 within a period of 36 months extendable by six months under Clause 10 (a) of the agreement from the date of the agreement i.e. 3.5.2009 and that would take us to the cut off date as 3.11.2011.
14. Here, it is suffice to note that the ops were entitled under clause 8(b) of the Flat Buyer Agreement to change the area and location of the flat agreed to be sold on account of modification, additions, alterations made by the developers in the building plans, floors or flats, regarding which the complainants were  informed by the Ops vide letter dated 17^th June,2009 Ex.OP6 and the complainants have not denied having received the same.
15. As a result of the aforesaid discussion, we are of the considered view that the Ops were obliged to compensate the complainant for the delay in making a delivery of the flat w.e.f. 3.11.2011 in compliance with clause 10(c) of the agreement, which  provides that the Developer shall pay to the Buyer compensation @ Rs.53.80 per sq.meter or Rs.5/- per sq.ft per month  in respect of the  super area of the flat to the purchaser of the same. It is not the plea of the Ops that they ever made  any payment. The payment has to be made per month. The area of the flat as mentioned in the agreement Ex.OP4 is 1580 sq.ft. equivalent  to 146.78 sq. meters, which is said to be the super built up area and same is the area disclosed in letter Ex.OP6 dated 17^th June,2009 written by the Ops to the complainants, a fact not disputed by the complainant Lalit Kumar in his sworn affidavit, Ex.CA in response to the plea taken up by the Ops in the written version. We therefore, accept the complaint and direct the Ops  to make the payment of the compensation @ Rs.5/- per sq.ft. for the delay in the delivery of the possession of the flat w.e.f.3.11.2011 to the date of the filing of the complaint treating the super area of the flat as 1580 sq.ft. with interest  @10% per annum and the Ops shall go on making the payment of the same till the delivery of the possession of the flat. In view of the facts and circumstances of the case, the complaint is accepted partly with costs assessed at Rs.7500/-. The order be complied by the Ops within one month on receipt of the certified copy of the order.

Pronounced

Dated: 8.9.2015

 

                   Sonia Bansal                Neelam Gupta                        D.R.Arora

          Member                        Member                                  President