Delhi

New Delhi

CC/258/2021

Sanjeev Misra - Complainant(s)

Versus

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

29 Nov 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.258/2021                               

In the matter of:

 

1.              Mr. Sanjeev Misra

R/o 18/15, Sector I, Pushp Vihar,

New Delhi-17

2.          Smt. Deepti Shikha Misra

R/o 18/15, Sector-I, Pushp Vihar,

New Delhi-17                                                                         ……..COMPLAINANT

 

Versus

 

M/s Parsvnath Developers

Through its Director

Registered Office at 6^th Floor,

Arunachal building, 19,

Barakhamba building, 19,

New Delhi-110001 …..OPPOSITE PARTIES

Quorum:

          Ms. Poonam Chaudhry, President

          Shri. Bariq Ahmad, Member

           

                                                                                                                      Date of  Institution: 02.12.2021                                                                                                                                                                       Date of Order     :29.11.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019 (in short referred to as CP Act). Briefly stated the facts of the case are that the opposite party is a company incorporated under the Companies Act, 1956, and has its Registered office at 6^th floor, Arunachal building, 19, Barakhamba Road, New Delhi-110001 (herein referred to as opposite party). The opposite party is engaged in construction of houses, villas, building and other infrastructure facilities in different part of India.
2. It is also alleged that one. Santosh Rani (herein referred as original allottee) applied for an allotment of resident flat bearing Flat no. E1-101, First Floor in tower No. E1 having an area of 1380 sq. ft of super built up area consisting of 3-bedroom, drawing, dinning, kitchen, 2 toilets, Balconies, without servant room, in the complex known as “Parsvnath Exotica”.
3. The original allottee purchased residential flat from the opposite party. The basic price of the which was Rs. 43,30,440/- (Rupees Forty Three Lakh Thirty Thousand Four Hundred Forty) calculated at the Rate of Rs. 3138/- (Rupees Three Thousand One Hundred Thirty Eight) per sq. ft. of super built up area of flat at the time of final measurement on completion of the Flat/complex and Rs. 2,00,000/- (Rupees Two Lakh) for covered car parking.
4. It is further alleged that original allottee and the opposite party entered into a Flat buyer agreement dated 14^th September, 2012 and Rs. 8,91,305/- (Rupees Eight Lakh Ninety One Thousand Three Hundred Five) was paid by the complainant towards the booking amount and 1^st and 2^nd installment vide cheque. The receipt of the same was acknowledged by the opposite party. The original allottee opted for construction linked payment plan.
5. It is further alleged that the original allottee decided to sell the subject property and as the complainant in search of a residential flat was approached by the original allottee and the complainant was assured that the possession of the subject property would be delivered on time. That the complainants purchased the subject property in the same year and paid an amount of Rs. 8,66,088.12/- (Rupees Eight Lakh Sixty Six Thousand Eighty Eight and Twelve Paise).
6. It is further stated that the original allottee and the complainants entered into Agreement to sell and the original allottee acknowledged the receipt of Rs. 8,66,088.12/- (Rupees Eight Lakh Sixty Six Thousand Eighty Eight and Twelve Paise) vide receipts no. R0001099 dated 15.03.2012. R0001811 dated 25.04.2012  and R0002949 dated 29.06.2012 as a full and final settlement against the subject property and after the original allottee shall have no right on the subject property. It is also alleged that the original allottee vide letter dated 14.09.2012 addressed to the opposite party requested for “change of right to purchase Plot/Flat/Shop/Unit No. E1-101 at Exotica Mohan Nagar: in favor of the complainants and also executed Endorsement and consent note relating to the subject property in favor of the complainant.
7. It is alleged that clause 10(a) of the Flat Buyer agreement dated 14^th September, 2012 stipulates as under:-

10 a Construction of the Flat shall commence within six months from the date of signing of the Agreement between the parties, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Department, Civil Aviation Department, Traffic Department, Pollution Control Department, as may be required for commencing and carrying on construction subject to force majeure, restrains or restrictions from any courts/authorities, non-availability of beyond the control of the Developer and subject to timely payments by the Flat Buyers. The construction shall be complainant within a period of Six month from the date of execution of this agreement.

8. The OP was to deliver possession till September 2012. The OP was under contractual obligation to construct the flat within 36 months from the date of agreement. The complainants has already made a total payment of Rs. 8,66,088.12/- (Rupees Eight Lakh Sixty Six Thousand Eighty Eight and Twelve Paise) but despite that the builder has intentionally evaded delayed the construction and possession of the subject flat in question. It is alleged that on visit at site it was found that construction had not commenced.
9. It is further alleged that the complaint is filed within the limitation period as the cause of action is subsisting as the possession of the subject property has not been handed over till date. The said act of OP amounts to deficiency in services and unfair trade practice.
10. It is also alleged that this Commission has pecuniary jurisdiction to try and entertain the present complaint as the opposite party works for gain within the jurisdiction this Commission and the complainant also lives within the territorial jurisdiction of this Commission.
11.  It is prayed that OP be directed to pay principal amount of Rs. 8,66,088.12/- (Rupees Eight Lakh Sixty Six Thousand Eighty Eight and Twelve Paise) with interest at the rate of 24 % per annum, as rate of interest claimed by the opposite party along with pendent lite and future interest was @ rate of 18% or at 24% compounded per annum, till the date of actual realization of the payment. Damages of  a sum of Rs. 10,00,000/- (Rupees Ten Lakh) be also awarded for mental agony.
12. Notice of the complaint was issued to OP. OP entered appearance and filed written statement contesting the case alleging inter alia that there was no cause of action as transaction in question is a commercial transaction as the property/flat in question had been purchased with intention to earn profit. The present complaint was thus not maintainable as complainant is not a “consumer” as defined in the  of Consumer Protection Act.
13. It was further alleged that complaint was not maintainable in view of the judgment of Hon’ble National Commission in titled Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd. as some of the allottees approached the Hon’ble National Commission by way of a complaint under Section 12(1) C of the Act in Consumer case no. 889/2016 titled Vikram Singh Negi Vs. Parsavnath Buildwell Pvt. Ltd. and others. The Hon’ble National Commission vide order dated 20.02.2017 granted permission to file complaint under Section 12(1)C. The complainant had not obtained permission from Hon’ble NCDRC under Section 12(1)Complainant of the Consumer Protection Act, 1986.
14. It was alleged that complaint is pre-mature as according to the agreement the date of final construction of the flat was not fixed as wrongly alleged by the complainant. It was further stated contents of paragraph 10(a) of the Flat Buyer Agreement clearly stipulates that time is not the essence of the contract and therefore even if the period of thirty six months have expired, the Agreement having a relaxation clause “likely” attracts the doctrine that “time is not of the essence of the contract”
15. It was also stated that the reason for delay in completion of project was beyond the control of the opposite party since despite the continuous follow up with the Authority the plans were still pending for approval. The opposite party however in good gesture and in order to protect the interest of the Buyer put a clause no, 10(a) in the Flat Buyer Agreement wherein the opposite party fixed a date of commencement of construction. Clause no. 10(a) of the Flat Buyer Agreement is reproduced hereunder:

“construction of the flat is likely to be completed within a period of thirty six (36) months from the date of commencement of construction of particular tower in which flat is located, on receipt of sanction of building plan/revised building plan and approvals of all concerned authorities including the Fire Service Department, Civil Aviation Department, Traffic Department, Pollution Control Department. As may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the developer subject to timely payment by the flat buyers. No claim by way of damages/compensation shall lie against the Developer in case of delay in handing over the possession an account of the said reasons.

16. It was also alleged complaint was not maintainable, as the complainant was seeking the relief of refund of the amount. Thus in the grab of the present complaint complainants were seeking recovery of the amount paid.  
17. It was also stated the complaint was liable to be dismissed on the ground of non-joinder of necessary parties M/s Devidayal Pvt. Ltd. was a necessary party.  
18. It was also stated that the instant matter involves complicated questions of facts and law which require to be proved by detailed oral as well as documentary evidence however the proceedings before the Consumer Courts are summary in nature. Therefore, should be examined by an appropriate court of law. It was also stated that there was no deficiency of service on part of OP. It was also stated that this Commission does not have jurisdiction. It was prayed that complaint be dismissed.
19. The complainants thereafter file rejoinder denying all the allegations made in the written statement and reiterating the averments made in the complaint.
20. Parties thereafter filed their evidence by affidavits.
21.  During the course of proceedings an application was moved by complainant for amending name of complaint. It was stated that inadvertently the name of OP was mentioned as Parsavnath Developers instead of Parsavnath Exotics. The same was allowed vide order dated 25.02.2022.
22. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
23. The fact that complainants booked a flat in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement and receipt of payment of Rs. 8,91,305/- (Rupees Eight Lakh Ninety One Thousand Three Hundred Five). The copies of receipt of the above amount issued by OP have been also filed by complainant. The receipts are not controverted by OP.
24. It was contended on the behalf of the complainants that OP was deficient in providing its services. It was also alleged that complainants had paid i.e. Rs. 8,66,088.12 (Rupees Eight Lakh Sixty Six Thousand Eighty Eight and Twelve Paise). to the OP but OP failed to deliver the property even after 10 years of the agreement. It was also argued that according to clause 10(a) of the Builder-Buyer Agreement, the construction was to commence within 6 months from the date of execution of agreement dated 14.09.2012 The construction was to be completed with a period of 36 months from the date of execution of agreement, but OP failed to  hand over possession of the flat even till on the filing of the complaint. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to constructs the property within 36 months from the date of agreement but it failed to do so. As regard deficiency in services, Hon’ble Supreme Court has held in case titled Arifur Rahman Khan and Ors. V. 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 the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
25. It was also held in the case titled Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243  byHon’ble Supreme Court 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 the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
26. On the other hand it was also argued on behalf of OP that complainants have not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
27. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
28. It is to be noted Section 2 (47) of the Consumer Protection Act, 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 therein.
29. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainants were justified in claiming refund of the amount deposited by him with compensation.

30. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
31. As regards the contention of OP that complainants were not consumer, as defined in the Consumer Protection Act, 2019, it is to be noted that a mere allegation has been made in the WS by OP, in this regard no evidence was brought on record to prove the said contention. We are thus of the view that the same is without merits.
32. As regards the contention of OP that complaint is not maintainable, the complainants ought to have filed a civil suit as he is seeking recovery of money. In this regard to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 titled M/s Imperia Structures Limited Vs. Anil Patni and Anr.
33. As regards the objection taken by OP that complainant is not a consumer. We are of the view that no evidence was brought on record by OP to show that Complainant booked the plot for business in real estate. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.” Thus as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
34. We thus, hold that OP was guilty of deficiency in services. We accordingly direct OP/Parsavnath Buildwell Pvt. Ltd. to refund the amount Rs. 8,66,088.12 (Rupees Eight Lakh Sixty Six Thousand Eighty Eight and Twelve Paise). to the complainants along with interest @ 10% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order, failing which OP will pay interest @ 18% p.a. for the delayed period. We also award Rs. 1,00,000/- (Rupees One Lakh) as compensation for mental agony and Rs. 25,000/- (Rupees Twenty Five Thousand) as cost of litigation.

A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

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

 

 

(POONAM CHAUDHRY)

                                          President

 

(BARIQ AHMAD)

 Member