Delhi

North East

CC/61/2014

Sh. Kuldeep Singh Sekhon - Complainant(s)

Versus

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

29 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, NAND NAGRI, DELHI-93

Complaint Case No. 61/2014

 

CORAM:        Hon’ble President Sh. N.K. Sharma

Hon’ble Member Sh. Nishat Ahmad Alvi

                        Hon’ble Member Ms. Manju Bala Sharma

 

In the matter of:

 

Kuldeep Singh Sekhon

S/o Sh. Kehar Sekhon

WZ-5C/1, Krishna Nagar,

Tilak Nagar,

New Delhi-110018

Through his Attorney Sh. Gurdev Singh

S/o Sh. Inderjeet Singh

WZ-378, Guru Nanak Nagar,

Tilak Nagar,

New Delhi-110018                                                                                        Complainant                                       

           

Versus

 

M/s Parsvnath Developers Ltd.

Parsvnath Metro Tower,

New Shahdara Metro Station,

Shahdara, Delhi-110032

Through its Managing Director                                                  Opposite Party

 

                                                                                      DATE OF INSTITUTION: 21-02-2014

                                                                                      DATE OF DECISION      : 29 -01-2016

Order

N.K. Sharma, President :-

Nishat Ahmad Alvi, Member:-

Manju Bala Sharma, Member :-

 

 

1. The case of the complainant is that the complainant who is an Indian citizen by birth but now is a Canadian citizen booked a flat in the building project of OP at Dharuhera District, Riwari (Haryana) in 2006 and made an advance payment of Rs.4,50,000/- vide cheque No.836790 dated 11.04.2006 drawn on Bank of Baroda, New Delhi.  The complainant had again paid a sum of Rs.50,850/- vide Draft NO.013382 dated 12.05.2007 drawn on Central Bank of India, New Delhi on account of advance booking amount and on OP stating that the project in question is in running position the complainant has to pay rest booking amount and the complainant deposited a sum of Rs.3,33,900/- vide cheque NO.990886 dated 06.12.2001 drawn on State Bank of India, New Delhi.  It is further stated that the complainant received a letter No.PDL/Flat-Agmt/K001/24896 along with an agreement and allotment letter of flat bearing No.T-20/401 in the project i.e. Parsvnath Pleasant, Dharuhera, District Riwari and on 29.09.2008 the parties entered into flat buyer agreement in which in Para 10A it is mentioned that the flats are likely to be completed within 36 months with a grace period of six months but the flat were not completed for handing over the possession and in April 2012 the complainant approached the OP for possession of the flat and OP assured the complainant that the flat will be delivered very soon and a meeting was also held with the DGM of OP on 23.10.2012 but all in vain.
2. The complainant demanded back the refund of the amount of Rs.8,34,750/-, deposited by the complainant with OP and made requests through letters as well as legal notice but no response was received from the OP and the OP failed to handover the possession within the stipulated period of 3½ years as per the agreement dated 29.09.2008.  The complainant prayed for direction to OP to refund the amount of Rs.8,34,750/- along with interest @ 24% since 11.04.2006 on the amount of Rs.4,50,000/- since 12.05.2007 on the amount of Rs.50,850/- and since 06.12.2007 on the amount of Rs.3,33,900/- till realisation along with compensation to the complainant. 
3. Notice was issued to the OP and OP filed its reply while admitting the fact that OP planned to develop project named ‘Parsvnath Pleasant’ at Dharuhera, Haryana and that the complainant and one Purandeep Singh got themselves registered for a residential apartment, later on complainant requested for deletion of the name of Purandeep Singh vide application dated 16.05.2007 and that the complainant requested for the refund of the amount deposited vide email dated 13.08.2013 and letter dated 11.12.2013.  OP took preliminary objection that the complainant is a Non-Resident Indian and has purchased the said flat only with the intention to gain commercially as the complainant was merely making an investment in real estate for commercial purpose, hence complainant is not a consumer within the meaning as prescribed under the provisions of Consumer Protection Act.  It has been further stated that the complainant entered into a flat buyer agreement which constitutes a binding contract between the parties and the complainant is therefore bound by the terms of the said agreement and cannot resile from the same until and unless the same has been rescinded or a novation has taken place and that since the instant matter involves complicated questions of facts and law it is imperative that the matter should be examined by an appropriate court of law.  On merits while admitting the booking of flat on 11.04.2006, denied the fact that it has stated that the project is in running position and further stated that the payment done by the complainant is in consonance of the payment plan opted by the complainant at the time of booking of the flat and clause 10(A) of the Flat Buyer Agreement states that the flats are likely to be completed within 36 months with grace period of six months from the date of commencement of the construction in the specific tower/block where the flat is situated.  It has been further stated that the status of construction is different as compared to the time when the pictures are alleged to have been taken. 
4. By filing rejoinder to the reply filed by the OP, the complainant while denying all the averments of reply, vehemently denied the allegation of the OP that the said flat has been purchased and that the complainant is merely making an investment in real estate for commercial purpose and reiterated the contents of the complaint and pressed the prayer made.
5. Affidavit of evidence filed by both the parties.
6. Heard and perused the record.
7. Complainant has filed documents in support of its case i.e. copy of cheque NO.836790 dated 836790 dated 11.04.2006 for Rs.4,50,000/- drawn on Bank of Baroda Draft No.013382 dated 12.05.2007 for Rs.50,850/- drawn on Central Bank of India and cheque No.990886 dated 06.12.2007 for Rs.3,33,900/- drawn on SBI as Ex-CW/1A to CW/1C, letter No.PDL/flat/agmt/K001/24896 along with agreement and allotment letter of flat bearing No.T-20/401 in the project ‘Parsvanath Pleasant’, Flat Buyer Agreement dated 29.09.2008 as Ex. CW/1D to F and legal notice along with acknowledgement as Ex. CW/1G & H.  OP has also filed application of advance projects Ex. OP1/1, provisional allotment of Flat No.T-20/401 in ‘Parsvnath Pleasant’ as Ex. OP2/2 in favour of complainant, change of right to purchase plot/flat No.T20-401 in the joint name of complainant and Purandeep Singh in the name of complainant Ex. OP3/3, email dated 13.08.2013, letter of complainant dated 11.12.2013 regarding refund of booking and installment amount Ex. OP4/4.
8. We have heard counsel for the parties and gone through the written submission and the documents placed on record.  It is not denied by the OP that the complainant has booked a residential flat in its project ‘Parsvnath Pleasant’ at Dharuhera, Riwari and a sum of Rs.8,,34,750/- has been paid by him at different times towards the advance booking instalments.  Plea of OP that complainant is not a consumer within the meaning of the provision of Consumer Protection Act has not been dealt with by Hon’ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, III(1994) CPJ-7 SC while holding that housing is a service and when possession is not delivered within the stipulated period, the delay so caused is denial of service.  Accordingly the complainant who booked a flat in housing project of OP and was not provided the same, he is very much consumer of OP.  Regarding preliminary objection that the complainant has purchased the flat with an intention to gain commercially and the complainant has merely made an investment in real estate for commercial purpose as he is a Non Resident Indian has admitted in its reply that complainant is an Indian by birth and as he has settled in Canada, he is non-resident Indian.  OP has not produced on record anything to prove the fact that the complainant has invested the money in purchasing the flat for commercial gain whereas the complainant has vehemently denied the allegation of the OP.  On the contrary the OP in its reply, written submissions and even at the time of arguments stated that on account of global recession which hit economies all over the world including the Indian economy, more particularly hurt the real estate sector, the pace of construction slowed down.  It has been admitted by OP that various projects undertaken by OP have been delayed due to circumstances beyond their control.
9. In the present case, the complainant entered into Flat Buyer Agreement with OP and flat No.T20-401 on 4^th floor in Tower No.790 having 1855 square feet of super built area has been allotted to complainant on 29.09.2008.
10. On the basis of the above discussion, we are of the view that OP booked a flat in the name of the complainant, allotted R20-401, 4^th Floor in Tower No.790 and flat buyer agreement was also entered into between the parties but it did not develop the project and gave possession of the flat to the complainant within the stipulated time as per clause 10(A) of the flat buyer agreement.  Hence holding OP guilty of deficiency in service and unfair trade practice, we direct it to pay to the complainant Rs.8,34,750/- paid by the complainant to the OP with interest @ 12% per annum thereon from receipt of the amount till realisation.  We also award Rs.25,000/- to the complainant to be paid by the OP by way of compensation for causing harassment.     
11. Order shall be complied within 30 days from the receipt of copy of this order failing which rate of interest of 12% per annum will be increased to 18% per annum.
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.  
13. File be consigned to record room.
14. Announced on  29.01.2016 

 

 

( N.K. Sharma) President

(Nishat Ahmad Alvi) Member

(Manju Bala Sharma) Member