BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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M/s Goyal Sanitory Corporation through its partner Sh.Sunil Goyal, Showroom No.3016, Sector 22-D, Chandigarh.

….…Complainant

                                V E R S U S

1]     M/s Parsavnath Developers Ltd., through its Managing Director, Registered and Corporate Office 6^th Floor, Arunachal, 19, Barakhmba Road, New Delhi 110001

2]     Sr.Manager, M/s Parsavnath Developers Ltd. SCO No.1, Sector 26, Madhya Marg, Chandigarh.

                                        ..…Opposite Parties

CORAM:    SH.JAGROOP SINGH MAHAL                PRESIDENT

                DR. (MRS.) MADHU BEHL                    MEMBER

Argued by: Sh.Hitender Kansal, Adv. proxy for Sh.P.M.Goyal, Adv. for complainant.

Sh.Matvinder Singh, Adv. for OPs.

PER  SH.JAGROOP SINGH MAHAL, PRESIDENT

                By this common order we propose to dispose of the following two connected consumer complaints in which common questions of law and facts arise:-

1)  Consumer Complaint No.1345 of 2009-M/s Goyal Sanitory Corporation Vs. M/s Parsavnath Developers Ltd., and another.

2)   Consumer Complaint No. 1346 of 2009-M/s Harish Gupta and another Vs. M/s Parsavnath Developers Ltd., and others.

2.             The facts are taken from Consumer Complaint No.1345 of 2009-M/s Goyal Sanitory Corporation Vs. M/s Parsavnath Developers Ltd., and another.

3.             Briefly put, the complainant booked one flat with OPs on making part payment of Rs.5.00 lacs vide Ann.C-1, dated 4.4.2006 on the assurance that the flat would be handed over by the end of six months.  The complainant was also the dealer of OP Company and as such brought many other investors/buyers, who also booked flats with OPs only under the assurance that the flats would be delivered to them by the end of six month.  However, when the complainant received Flat Buyer Agreement (Ann.C-2) from OPs, the terms & conditions stipulated therein were totally contrary to the assurance as given by OPs at the time of booking the flat and as per said agreement the possession of the flat was to be given within 1½ years instead of 6 months.  The complainant sought refund of his amount but it was not refunded, rather, in Jan., 2008 he was asked to make payment of balance amount.  The complainant went to the site but was shocked to see that there was no development nor any construction work was done by the OPs.  It is averred that finally the complainant was asked to give in writing that he had no objection if the money was refunded as he was also the dealer of OPs.  The complainant vide letter dated 20.8.2008 (Ann.C-3) wrote to OPs that he has no objection if the booking was cancelled and amount was refunded and the said letters was also given to other buyers, who booked the flats with OPs through the complainant as dealer of OPs.    However, inspite of all this, the complainant again received another letter dated 27.1.2009 (Ann.C-4) from OPs for signing the Flat Buyers Agreement. Thereafter again the complainant visited the OPs many a times seeking refund of his amount, but to no avail.  It is also averred that the OPs even after the lapse of 2½ years from the date of booking of the flat, failed to complete the project.  Hence, this complaint has been instituted alleged the above act of OPs as gross deficiency in service and their indulging into unfair trade practice due to which complainant had to suffer mentally, physically and financially.

4.             OPs filed joint reply and admitted the booking of flat as well as deposit of Rs.5.00 lacs as part payment thereof by the complainant.  It is denied that OPs ever gave any promise to handover the possession of the Flat within six months but instead the construction of the flat was to be completed within a period of 36 months of commencement of construction of the particular block in which the flat was located with a grace period of 6 months on receipt of sanction of building plans etc. It is admitted that Flat Buyers Agreement (Ann.C-2) was sent to the complainant.  The receipt of letter dated 20.8.2008 (Ann.C-3) from the complainant has also been admitted.  It is also denied that complainant was told that he could back out or the amount paid by him would be refunded with interest.  The issuance of letter dated 27.1.2009 (Ann.C-4) to the complainant for signing of Flat Buyers Agreement has also been admitted.  However, it is stated that the construction at the site has commenced but has slowed down on account of the economic meltdown which was a circumstance beyond the control of the OPs, but the complainant was protected against the delay in completion of flat in terms of Clause 10© of the Agreement (Ann.C-2).  Denying all other allegations, it is prayed that the complaint be dismissed with costs.

5.             Parties led evidence in support of their contentions.

6.             We have heard the ld.Counsel for the parties and have perused the record.   

7.             The contention of the complainant that it was invited to attend the meeting which took place on 4.04.06 at Hotel North Park, Panchkula, where the Managing Director of the OPs addressed the gathering has been denied by the OP. In para number 3 of the complaint, it was alleged by the complainant that in the said meeting it was told that the possession of the flat would be handed over to the applicants by the end of 6 months, which also have been denied. The contention of the complainant is that a news item appeared in this respect in the newspaper on the next day.  The complainant has not produced any such news items to support this fact which requires an adverse inference to be drawn against the complainant that they have mentioned wrong facts in it to project their grievance.

8.             It is admitted by the complainant in para number 7 of the complaint that it is a dealer of the OP and a number of persons had booked their flats through the complainant being a dealer. The Learned Counsel for the OP has argued that the flats were booked in order to sell it at a higher price and it was therefore a commercial transaction.  The complainant itself admitted that it is a dealer and number of persons had booked their flats through him.  Harish Gupta and another have also filed a similar complaint which is being decided through this order, in which also the flat was booked through the complainant. Since it was a commercial transaction for the present complainant, the complaint therefore does not lie because it would not be covered under the definition of a consumer.

9.             The amount of Rs.5,00,000/- was paid by the complainant vide Annexure C-1.  There is no mention in this receipt as to when the construction would be started and when it would be completed or when the possession of the flat would be given to the complainants. Thereafter the flat buyer agreement, copy of which is Annexure C-2, was sent to the complainant but the complainant has not signed it and did not submit the same to the OPs for record.  In any case Annexure C-2 is a proposal from the OP which could or could not be accepted by the complainant to make it a valid contract. The proposal contained therein is in clause 10(A) which says that the construction of the flat is likely to be completed within the period of 36 months of commencement of construction of the particular Block in which the flat is located with a grace period of 6 months on receipt of sanction of the building plans/revised building plans and approvals of all concerned authorities etc., etc. The contention of the complainant that the construction was to be completed within 6 months is not proved from any where. The OP themselves were saying that they would complete the construction within 36 months and a grace period of 6 months in case of certain problems beyond their control. There is a letter dated 14.04.08 in the complaint case filed by Harish Gupta against the OPs in which it is mentioned that the foundation would be laid on 30.04.08.  In this manner the period of 36 months or 42 months would start from 30.04.08 and the said period of completion of construction is not yet over and therefore, we cannot say that there is any deficiency in service on the part of the OPs.  However, the complainants have not signed the flat buyer agreement and even this 36 months or 42 months period cannot be considered to be a term of the agreement between the parties. Needless to mention that if no time period for completion of construction has been fixed between the parties, the OPs cannot be held deficient in rendering service.

10.            The complainant made the part payment towards the construction of the flat.  The subsequent installments which were payable by the complainant have not been paid.  The complainant therefore cannot expect the OPs to construct the flats without making the payment of installments.  When the complainant itself is guilty of not making the payment, it cannot put the blame of non construction on the OP.

11.            In view of the above discussion, we are of the opinion that there is no merit in this complaint.  The same is accordingly dismissed.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.