Haryana

StateCommission

CC/189/2018

SUBHA GARG - Complainant(s)

Versus

M/S PARSVNATH - Opp.Party(s)

VISHAN MADAN

31 Mar 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,PANCHKULA

                                                 

Complaint No.189 of 2018

Date of Institution:26.03.2018       Date of Decision: 31.03.2021

 

Subha Garg, age 35 years daughter of Mr. Khushi Ram Garg, Resident of House No. 1398, Sector-15, Panchkula, Haryana.

     …..Complainant

                                                Versus

 

 

M/s Parsvnath Developers Limited, through Managing Director

Registered Office: Parsvnath Metro Mall, Near Shahdara Metro Station, Shahdara, Delhi-110032

Site Office: Parsvnath Royale, Behind Society No. 105 to 111, Sector-20, Panchkula through its Manager.

        …..Opposite party

 

CORAM:   Hon’ble Mr. Justice T.P.S Mann, President.

                   Mr. Harnam Singh Thakur, Judicial Member.

 

Present:-    Shri Vishal Madan, counsel for the complainant.

                   Shri Ashwani Talwar, counsel for the opposite party.

 

                                      O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

 

                    The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) has been filed by Subha Garg-complainant averring that she booked a flat with M/s Parsvnath Developers Ltd.-opposite party (for short ‘Developer’) in July, 2013.  The price of the flat was Rs.75,65,000/-. She was allotted flat No.302 (3 BHK) in Tower T5. Flat Buyer agreement Ex. C-1 dated 12.08.2013 was executed. As per the Flat Buyer Agreement, the construction of the flat likely to be completed within a period of 18 months from the date of signing of the agreement (with grace period of 06 months). In all, the complainant paid Rs. 20,27,007/- to the Developer. The construction has not been completed by the Developer and after more than 5 years of booking, the Developer is nowhere to offer the possession of flat in question. The complainant prayed that the Developer be directed to refund the deposited amount, that is, Rs.20,27,007/- alongwith interest at the rate of 15% per annum alongwith compensation and litigation expenses.

2.                Notice of the complaint was issued against the opposite party and did not file written version. Therefore, defence of the opposite party struck off vide order dated 21.05.2019.

3.                Complainant Ms. Subha Garg in her evidence appeared as CW-1 and produced following documents:-

Sr. No.	Documents	Exhibits
1	Flat Buyer Agreement dated 12.08.2013	Exhibit C-1
2	Receipt dated 12.08.2013	Exhibit C-2
3	Receipt dated 30.09.2013	Exhibit C-3
4	Receipt dated 25.11.2013	Exhibit C-4
5	Receipt dated 28.11.2013	Exhibit C-5
6	Statement of account	Exhibit C-6
7	Site Photo	Exhibit C-7

 

4.                The arguments have been advanced by Sh. Vishal Madan counsel for the complainant as well as Sh. Ashwani Talwar, learned counsel for the opposite party.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led during the prosecution of the complaint had also been properly perused and examined.

5.                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 complainant is entitled to get refund of the amount which she has already deposited alongwith the interest?

6.                While unfolding the arguments, it has been argued by Sh. Vishal Madan, Advocate learned counsel for the complainant 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.20,27,007/- had been paid by the complainant to the O.Ps. which is also  evident from EX.C-6. As per the buyers agreement Ex.C-1 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. within two years of signing the agreement which includes six months grace period.  

7.                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. 

8.                On the other hand, it has been argued by Sh. Ashwani Talwar, the learned counsel for the O.P. that the complainant has defaulted in making payment of installments to it. The possession of the plot in question was to be delivered as soon as possible.   Under these circumstances, when the possession of the plot is ready to be delivered to the complainant, the refund cannot be granted and the complaint may be dismissed. 

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that flat in question was booked by the complainant for which total amount of Rs.20,27,007/- had been paid.  It is also true that all the relevant documents were executed between the complainant with that of developer or O.P. It is evident that the complainant had deposited the total amount of Rs.20,27,007/- as per statement of accounts EX.C-6.  The possession of the flat in question was to be delivered within stipulated period in all respects, but, O.P was not handed over the possession of the flat.   To the utter surprise of this court and is very pity that in spite of the fact that period of more than 05 years had expired but  the possession of the flat has not been delivered by O.P.    As such, there is a clear breach of natural justice as O.P. could not deliver the possession of the flat within the stipulated period.  The developer or O.P. cannot be put to survive on the basis of the amount of the investors.  It is the normal trend of the developer/O.P. 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.  When the project is not complete as such, this court is of the considered opinion that the complainant is well within her legal rights to get the refund of the amount of Rs.20,27,007/- which he had already deposited with the O.P.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within its permissible period and under the constraint circumstances, the complainants had to knock the door of this court even for seeking refund of the amount.  In such like cases  the court had to deal with the developer/O.P. with severe hands who are misusing the funds of the investors. In spite of the fact that the sufficient opportunities were afforded to the O.P. or the builder to file the written version to controvert the allegations leveled in the complaint. The reasons are best known to the O.P. or the builder as to why the written statement was not filed, consequently defence was struck off. As such, whatever the averments with evidence have been taken in the complaint remained un-rebuted. More so it is the settled proposition of law that if there is no written version to controvert the averments taken in the complaint, in that eventuality, the contents of the complaint would be deemed to be admitted. In fact it is a clear cut case of deficiency in service and unfair trade practice on the part of the O.ps.  

10.              Hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.20,27,007/- alongwith interest @ 10%  per annum from the date of respective deposits and till realization within three months of this order. In case, there is a breach in making payment within the stipulated period of three months in that eventuality the complainant would further be entitled to get the interest @ 12% per annum from the date of default till realization. The complainant is also entitled of Rs.50,000/- for compensation of mental pain, agony and physical harassment.  In addition, the complainant is also entitled of Rs.25,000/- as litigation charges.   It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act would also be attractable. 

 

March 31^st, 2021                 Harnam Singh Thakur                  T.P.S. Mann                                                 Judicial Member                             President      

Manoj