Delhi

New Delhi

CC/1030/2011

Prof Vinod Kalia - Complainant(s)

Versus

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

12 Jan 2017

ORDER

    CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110002

 

Case No.CC/1030/2011                            Dated:

In the matter of:

 

1. PROF VINOD KALIA,

D-157, SAKET

NEW DELHI-110017

 

 

                                                  ……..COMPLAINANT

    

VERSUS

  

1. M/S. PARSVNATH DEVELOPERS LTD.

6^TH FLOOR, ARUNACHAL BUILDING

19, BARAKHAMBA ROAD

NEW DELHI-110001

 

 

2. PARDEEP JAIN

CHAIRMAN/MANAGING DIRECTOR

M/S PARSVNATH DEVELOPERS LTD.

6^TH FLOOR, ARUNACHAL BUILDING

19, BARAKHMABA ROAD

NEW DELHI-110001

 

 

 

………. OPPOSITE PARTIES

 

 

 

MEMBER: H M VYAS

ORDER 

 The complainant has filed complaint under section 12 of the Consumer Protection Act praying for the following relief :-

1. The order be passed against respondents jointly and severally and direct the respondent to pay Rs. 13,21,687/- with interest @24% per annum from the date of deposit of the amount.
2. Further, be directed to pay pendent elite and future interest @24% pa till the date of payment to the complainant.
3. Award a compensation of Rs. 3 lakh for the mental harassment, agony, for loss and damage in favour of the complainant and against the respondents.
4. Award the litigation charges of Rs. 20,000/- in favour of the complainant and against the respondents.
5. Pass such further order or orders deem fit and proper in the facts and circumstances of the case.

 

It is alleged that a flat was booked with OP in its project Parsvnath Privilege at Greater Noida and paid Registration money worth Rs. 10 lakh on 01.05.2006. The OP vide letter dated 23.02.2007 made provisional allotment of Flat no. T-20-703. The calculations in the said letter dated 23.02.2007 is alleged to be erroneous which was later corrected and then an amount of Rs. 321687.50 p was paid by complainant. The OP vide cheque dated 18.05.2007. The total amount paid is Rs. 1321687.50 P equivalent to 25% of the Flat’s cost. It is stated that the Flat Buyers agreement contains clauses not in consonance with the agreed terms. It is stated that the OP made false assurance to hand over possession in 2012, commitments and admitted delay in their letter dated 10.06.2010 and 17.11.2010 while raising a demand of Rs.528675/- for start of construction. The OP neither completed the construction and handed over possession within 3 years of booking nor refunded the amount paid alongwith interest despite letters dated 04.06.2011 and 18.11.2011. Vide letter dated 18.04.2011 OP demanded a sum of Rs. 590518 with interest of Rs. 65252/- from complainant without even commencing construction and keeping silence about the use of more than 13 lakh of amount paid by complainant. As the OP failed to deliver the possession, the complainant requested for refund with interest. It is alleged that there is deficiency and unfair trade practice on the part of OP. The acts of OP caused mental harassment, agony, loss and damages to complainant.

        The OP filed written version to the complainant. It is stated by OP that complainant is not a consumer and he booked the flat for investment purposes. OP has however admitted receipt of Rs. 10 lakh from complainant. The complainant breached and violated the terms of flat by Buyers Agreement after admitting and signing the same. This Forum does not have jurisdiction to decide complicated question of law and facts under summary trial. The complainant would be entitled to a compensation @Rs.5/- per sq. feet of the super area for delay under Flat Buyers Agreement. Further it is stated that the delay is due to global recession phenomenon. The receipt of the letters of the complainant seeking refund has been denied. In respect of the letter dated 10.06.2010 addressed to complainant the OP states it to be as bonafide since the construction started while assurance given for compensating the complainant as per rule 10 (c) of the Flat Buyers Agreeement. The complainant has filed rejoinder evidence by way of affidavit and relied on the following documents :-

1. Two receipts dated 02.05.2006 for Rs. 50,00,00/- each. (Ex-C-1 Colly)
2. OPs letter dated 23.02.2007 with statement of unit payment plan. (Ex-C-2)
3. Complainant’s letter dated 08.05.2007 (Ex-C-3)
4. Advance registration form. (Ex-C-3/1)
5. Information Of OP downloaded from website. (Ex-C-4)
6. Receipt dated 19.05.2007 for Rs. 3,21,687.50/- (Ex-C-5)
7. OPs letter dated 21.05.2007. (Ex-C-6)
8. OPs letter dated 10.06.2010. (Ex-C-7)
9. OPs demand note dated 17.11.2010. (Ex-C-8)
10. OPs letter dated 18.04.2011. (Ex-C-9)
11. Letter dated 04.06.2011 to OP. (Ex-C-10)
12. Letter dated 18.06.2011 to OP. (Ex-C-11)
13. Photograph(photocopy) if site dated 17.03.2012 (Ex-C-12)

 

The OP has filed evidence affidavit. The documents relied are :-

1. Advance registration for residential apartments (already Ex as Ex-C-3/1).
2. Two receipts of Rs.5 lakh each (already exhibited as C-1 “colly”).
3. Letter dated 23.02.2007 (already exhibited as Ex-C-2).

 

The complainant has relied upon the citations IV(2010)CPJ 9(SC) Chandigarh Housing Board Vs. Sh. Avtar Singh and others; III (2011) CPJ 465 (NC) Paramvir Singh Vs. P.H. Houses Pvt. Ltd.; 1(2010)CPJ 37 (decided by the Hon’ble State Commission) Sh. Anand PRakash Adlakha Vs. M M Developers and Promoters Pvt. Ltd.; 1(2010) CPJ 16 (NC) Premier Houses Vs. Oliver Archibald Aranha and another. National Commission judgement in CC/no./144/11 of Subhash Chander Mahajan and another Vs. Parsvanath Builders decided on 05.05.2014;CC no. 232/14, Puneet Malhotra Vs. Parsvnath Builders decided on 29.01.2015, and CC/no./263/2015 Aditya Larola Vs. Parsvnath Builders (decided on 11.05.2016); Cc-137/10. Kavit Ahuja Vs. Shipra Est. and Ors. Etc.

The complainant relying upon said citations has argued that the complainant is a consumer and the OP is liable to refund the amount paid by complainant with heavy interest and should be burdened with heavy compensation on account of deficiency in service and reiterated the contents of the complaint supported with evidence.

The OP has argued that the construction started in 2010 (Para no. 4 of WS) and for delay the complainant agreed and signed the Advance Registration Form which categorically mentions about the refund of advance money with 6% PA interest (Page 15 of the complaint). The complainant has violated the terms and conditions.

Both the parties have filed written arguments and also addressed oral arguments. We have carefully considered the material placed before us and the submissions made by the parties with relevant provisions of Law.

It remains undisputed that the complainant booked a flat with OP and paid a sum of Rs.13,21,687/- which is lying with OP. it is also not in dispute that the flat was not constructed even after the specific period, nor the amount paid by the complainant refunded with interest even at the rate mentioned in the Advance Registration Forum. We do not find merit in the submissions of the OP that the complainant is not a consumer and the complex question of facts and Law are involved which cannot be decided by this Forum. We hold that the complainant is a consumer and the complaint under the Consumer Protection Act can be filed and decided. The interest @24% prayed by the complainant is very much exaggerated. The judgments relied by complainant on the issue of interest rate do not favour much, as the basic difference is that in those citations the complainant had paid almost the complete cost but in this case only about 25% total cost of Rs. 54,72,250/- has been paid by complainant. We further hold that there is deficiency of services on the part of OP. therefore, the OP is directed to refund the amount of Rs. 13,21,687/- with simple interest @10% from the date of deposit till the date of payment. We also award the compensation to the tune of Rs. 1,30,000/- as compensation for mental harassment, loss, damaged including litigation charges. The awarded amount shall be paid by the OP within 30 days from the date of receipt of this order failing which simple interest @10% PA shall also be payable by OP from the date of order till payment to the complainant.

 

The order be uploaded on www.confonet.nic.in

The copy of orders be also sent to both the parties free of cost by post.

File be consigned to record room.

Pronounced in open Forum on ……………………

 

 

(S K SARVARIA)

 PRESIDENT

 

 

                                               (H M VYAS)                                          (NIPUR CHANDNA)

                                                  MEMBER                                                    MEMBER