Delhi

New Delhi

CC/79/2021

Harish Puniani - Complainant(s)

Versus

M/S. Parsvnath Developers Ltd. - Opp.Party(s)

25 Sep 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No. CC/79/2021

 

IN THE MATTER OF:

 

Harish Puniani

S/o Late Sh. Sodagar Mal,

R/o D-21, Oberai Apartment,

2 Shyam Nath Marg,

Civil Lines, New Delhi.

….Complainant

Versus

 

1. M/s Parsvnath Developers Ltd.

Through its Managing Director

 

2. Sanjeev Kumar Jain

Managing Director,

M/s Parsvnath Developers Ltd.

 

3. Pradeep Kumar Jain

Director,

M/s Parsvnath Developers Ltd.

 

4. Rajiv Jain

Director,

M/s Parsvnath Developers Ltd.

 

5. Ashok Kumar

Director,

M/s Parsvnath Developers Ltd.

 

All having Regd. & Corporate Office at:

6^th Floor, “Arunachal”,

19, Barakhamba Road, New Delhi – 110001.

 

....Opposite Parties

Quorum:

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmad, Member

Mr. Shekhar Chandra, Member

                                                                  Date of Institution:  19.03.2021       

  Date of Order:  25.09.2023

 

ORDER

 

SHEKHAR CHANDRA, MEMBER

 

1. The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019 (in short CP Act) against Opposite Parties (in short OP) alleging deficiency of services. The facts as borne from the record are that in the year 2004-2005, the OP launched its present and future (P&F) project in the name and style of ‘Parsvnath City’ situated near Tau Devi Lal Park, G.T. Raod, Sonepat, Haryana. It was publicized by the OP that they are coming up with a huge township namely ‘Parsvnath City’ wherein the OP proposed to allot a residential plot to the complainant herein.
2. It is alleged by the complainant that the OP with intention to lure and attract investors and buyers to the said P&F project made large scale advertisements for promotion of the project including advertisements in the media in Delhi-NCR through which the complainant came to know about the said project.The OP represented to be the best player in the real estate and on the basis of false claims and assurances the OP induced the complainant to pay a sum of Rs.5,50,000/- towards booking amount and accordingly the complainant paid a sum of Rs.5,50,000/- as advance against the allotment of residential plot in the proposed township of the OP by way of cheque dated 16.02.2005 in favour of OP against a receipt dated 17.02.2005 with consumer code PH/H0023 towards booking of the residential plot. It is submitted that the OP assured the complainant at the time of registration and booking that the plot will be allotted to the complainant in a time bound manner.
3. Further in order to gain confidence of the complainant and in order to further lure the complainant, the OP in the month of January, 2006, issued a letter dated 04.01.2006 with the following statement:

 “With reference to your registration for allotment in our P&F projects, we are pleased to inform you that we will be shortly offering to you a residential plot in our proposed township at Sonepat. In order to enable us to enlist your name in priority for allotment, we request to remit to us a further sum of Rs.5,50,000/- by 19^th January, 2006.”

 

4. It is submitted by the complainant that the OP to gain full confidence of the customer further stated that “In case the further amount as aforesaid is not remitted by the said date your name will not be placed on the priority list for allotment and your registration amount shall be liable to be refunded.” It is submitted that the OP also extended threat by way of this letter representing that they have many customers and the complainant herein will be put in priority list only if the payment is made else the name of the complainant will not be put in the priority list and the amount of the complainant shall be liable to be refunded which clearly demonstrate malafide trade practices and deficiency in services on the part of the OP.
5. Believing the claims and assurances of the OP on the basis of the demand letter dated 04.01.2006 and in order to avoid the delay in allotment of plots and under threat of losing the booking and registration of plot the complainant paid further sum of Rs.5,50,000/- on 23.01.2006 by way of cheque dated 23.01.2006 drawn on Bank of Maharashtra, Branch, New Delhi.
6. Despite making substantial amount as demanded by the OP at short notice, to the utter dismay, the OP failed to allot a residential plot as promised and assured. Till date the OP has not allotted any residential plot to the complainant in the so called proposed township at Sonepat. In fact, the OP did not come with any such township and induced the complainant to part with his hard earned money. It is thus pleaded that the acts of the OP amounts to cheating and the Directors of the Company are also liable to be prosecuted.
7. The complainant submits that more than 15 years have elapsed but the OP have not allotted any residential plot to the complainant and whenever the complainant approaches the OP for allotment of plot, the OP assure that they will allot residential plot at any alternative township but till date the OP has not expressed any intention in allotting any residential plot in favor of the complainant.
8. The complainant has visited the office of the OP end number of times and met the other OPs and every time the complainant is assured that the OP will soon get back with alternative plot in their alternate township but till date nothing has materialized.
9. The complainant has paid a sum of Rs.11,00,000/- towards booking and allotment of a residential plot in the proposed township of the OP at Sonepat, Haryana. However, the OPs have profoundly failed in allotting the residential plot in favour of the complainant.
10. The complainant has also addressed one email to the OP in the year 2016, wherein vide email dated 22.10.2016, the complainant asked the OP to immediately allot the plot as promised in the township at Sonepat. However, the OP paid no head to the said email. In fact, the OP did not even bother to reply to the said email which clearly shows the malafide intention of the OP. Thus, the OPs are liable for deficiency in services.
11. The complainant left with no option once again visited one of the offices of the OPs at Shahdara, Delhi in the year 2019 and vide letter dated 18.12.20019 once again requested the OP to allot the residential plot at the earliest. The said letter was duly received by the OP. However, the OP has not handed over the possession of the residential plot to the complainant till date.
12. Thus it is submitted that the complainant is entitled for refund the principal amount along with 18% interest from the date of payment till filing of the present complaint.
13. The complainant submits that the business activities of developing a township and handing over the possession of the residential plot thereof by the OP falls under the definition of ‘service’ as defined under section 2(42) of the CP Act and the complainant is a ‘consumer’ under section 2(7) of the CP Act.
14. It is submitted by the complainant that the OP has abused the dominant position by collecting huge money from the complainant and like customers and by mentioning terms pertaining to refund of money with only 10% simple interest which is heavily onerous and biased in favour of the OP and against the complainant. The complainant has lost the opportunity of owning a residential plot in the fake scheme of the OP and has also lost the opportunity of income as the amount of Rs.11,00,000/- has been collected by the OP from the complainant long back in the year 2005 and till date the OP has misused the hard earned money of the complainant causing unlawful gain to themselves and unlawful loss to the complainant.
15. It is further submitted that the complainant is senior citizen and a cancer patient who is undergoing series of treatment which causes huge financial burden upon the complainant and his family to bear the cost of medical expenses. Even in this unfortunate situation, the complainant went from pillar to post in order to recover the hard earned money he had invested with the OP which the OP dishonestly misappropriated and caused unlawful gain to themselves and unlawful loss to the complainant. Despite the legal notice being duly served upon the OP, the complainant has till date not received any reply to the said legal notice.
16. Thus the complainant has approached this Commission with the following prayers:-

1. A direction be issued to the Ops to refund the amount of Rs.11,00,000/- calculated on principal amount along with interest @ 18% per annum from 17.02.2006 till the filing of the present complaint.
2. The OPs be further directed to pay future interest calculated @ 18% during the pendency of the complaint till realization of the award and to pay Rs.5,00,000/- to the complainant as compensation for gross deficiency in service, causing inordinate delay, loss of hard earned money, unfair trade practices, mental agony, harassment and trauma suffered by the complainant.
3. The OPs be directed to pay litigation expenses to the complainant. Any such other order may be passed as deemed fit and proper.

 

 

17.  Notice of the complaint was issued to OP by this Commission, upon which OP entered appearance and filed written statement contesting the case on various grounds inter alia that the present complaint is not maintainable in view of the fact that the complainant is not a "Consumer" within the meaning as prescribed under the provisions of CP Act. The complainant has invested money in the P. & F. project of the OP. It is only for the investment purpose and no wherein mentioned about any specific project. Further the present Complaint in time barred according to Section 69 of the CP Act. In accordance to Section 69 the time for filing the Complaint is within 2 years from the dated of cause of action has arose. That Section 69 has been reproduced herein below:

“69. (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.......”

18. The OPs submits in the written statement that the Complainant is not the "Consumer as the investment is made only to earn profit. That the Complaint has been filed without any justifiable cause of action. It is further submitted by the OP that the complaint is false, frivolous and vague in nature and has been made to injure the interest and reputation of the OP and therefore liable to be dismissed. It further liable to be dismissed due to mis- joinder of parties. It is submitted that OP No. 1 is Company incorporated under the provision of Company Act and OP No. 1 is also a Legal entity. It is further stated that OP No. 2 to 5 i.e. Chairman and Directors of the OP No. 1 are not personally liable for any act of OP No. 1. Therefore, it is submitted that the OP No. 2 to 5 i.e. Chairman and Directors of the OP No. 1 Company are neither necessary party nor proper party as there exists no privity of contract between the Complainant and the OP No. 2 to 5.
19. It is submitted in the written statement that the Complainant has prayed for reliefs which otherwise have to be claimed in a suit for damages and recovery of money, after paying appropriate court fee.
20. Further, the OP submitted that the Hon'ble Supreme Court of India in the matter of "Synco Industries State Bank of Bikaner and Jaipur & Ors." AIR 2002 SC 568 has observed that cases involving complex and complicated questions of facts and law cannot be decided in summary jurisdiction of the Consumer Forum. In civil courts the parties will have full opportunity to lead evidence. Therefore this Commission has no jurisdiction to entertain the present complaint.
21. We have heard the counsel for the parties and perused the evidence and material on record as well as their written arguments.
22. The fact that the complainant applied with an intent to purchase a plot in question in the project of the OP is an admitted case as evident from the evidence of the parties. The complainant made the payment which has not been denied by the OP. All communications initiated by the OP and addressed to the complainant are also not denied by the OP. Thus the fact of application for allotment of plot and payment made by the complainant to the OP has not been controverted by the OP. 
23. It was contended on behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid substantial amount  to the OP but OP failed to deliver the plot in question according to the agreement/letter of allotment. The OP has failed to deliver the plot within a reasonable period. It was submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. As regard deficiency in services, Hon’ble Supreme Court has held in ‘Arifur Rahman Khan and Ors Vs. DLF Southern Homes Pvt. Ltd. And Ors’, 2020(3) RCR (Civil) 544 that the failure of the developer to comply with the contractual obligation to provide flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
24. In ‘Lucknow Development Authority Vs. M.K. Gupta, (2) 1994(1) SCC 243’, the Hon’ble Supreme Court of India has held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a ‘service’ as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of a flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
25. It is to be noted that Section 2(47) of the Consumer Protection Act, 2019 defines ‘unfair trade practices’ in the following words:

“Unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice and includes any of the practices enumerated threin.”

26. The Hon’ble Supreme Court of India in Lucknow Development Authority Vs. M.K. Gupta, (supra) has held that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice. Likewise, in ‘Fortune Infrastructure and Anr. VS. Trevor D’Lima and Ors., 2018(5) SCC-442’, the Hon’ble Supreme Court of India has held that a person cannot be made to wait indefinitely for possession and he is entitled to seek refund of the amount paid by him alongwith compensation.   
27. As regards the objection taken by the OP that complainant is not a consumer within the meaning of Consumer Protection Act, the OP has failed to bring on record any evidence to show that the complainant booked the plot for business in real estate. The Hon’ble Supreme Court of India in ‘Sai Everest Developers Vs. Harbans Singh Kohli’ 2015 SCC has held that the OP should establish by way of documentary evidence that the complainant was/is dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit. Since no such evidence has been brought on record by the OP to prove the allegation, the said objection is without any merit. Thus, we are of the view that the services of OP were deficient, the complainant is justified in claiming refund of the amount deposited by him with compensation.
28. It is accordingly ordered that the complainant shall be entitled to refund of the full amount deposited by him with the OP. As regard interest over the deposited amount, it is ordered that the complainant shall be entitled to interest @ 6% per annum in view of judgment/order dated 22.01.2021 passed in the case of ‘Mridula Ghosh and Anr. Vs. M/s Ansal Hi-Tech Township Limited’, from the date of deposited till realization. The amount must be paid within four weeks from the date of receipt of this order by the OP, failing which the complainant shall be entitled to interest at the enhanced rate of 12% per annum. The complainant is a senior citizen and a patient of cancer who has been dragged to the litigation. Therefore, we order that a sum of Rs. 1,00,000/- be paid to the complainant by the OP as compensation for harassment and mental agony. The complainant shall also be entitled to litigation expenses which are quantified to Rs. 25,000/-.
29. A copy of order be sent to all the parties free of cost. The order be also uploaded in the website of the Commission (www.confonet.nic.in).

File be consigned to the record room along with a copy of the order.

 

[Poonam Chaudhry]

President

[Bariq Ahmad]                                                                                                                   [Shekhar Chandra]

    Member                                                                                                                                         Member