JUSTIVE V.K. JAIN, PRESIDING MEMBER (ORAL)

          Mr. Abhijit Malkani and Mrs. Simrin Malkani booked a residential flat in a project namely ‘Parsvnath Exotica’, which the parsvnath Developers Limited was seeking to develop in Sector 53 of Gurgaon and executed a flat-buyers agreement with the said company on 08.2.2010.  Flat No. C-4-601 in Tower C-4  of the said project was allotted to them by Parsvnath Developers for a basic price of Rs.1,55,52,600/-.  The said allotment was purchased by the complainants from Mr. Abhijit Malkani and Mrs. Simrin Malkani and was endorsed by Parsvnath Developers in their names on 06.5.2013.  The learned counsel for the opposite party states that later on, Parsvnath Hessa Developers Pvt. Ltd. was incorporated as a SPV to complete the project in which the allotment was made and therefore, a tripartite agreement dated 26.4.2013 was executed between the complainants, Parsvnath Hessa Developers Pvt. Ltd. and HDFC Bank Ltd., in order to enable the complainants to take a loan for the said flat.  The permission to mortgage the said flat was also issued by Parsvnath Hessa Developers Pvt. Ltd. to HDFC Ltd. vide letter dated 26.4.2013.

2.      In terms of Clause 10(a) of the Flat Buyers Agreement executed between Parsvnath Developers Ltd. and predecessors in interest of the complainants, the construction of the flat was likely to be completed within a period of thirty-six months of the commencement of construction of the block in which the flat was located, though a grace period of six months was also available to the developer for the aforesaid purpose.  The construction therefore, ought to have been completed by 8.8.2013, after giving benefit of grace period to the developer.

3.      The grievance of the complainant in this consumer complaint was that the possession of the flat had not been delivered to them despite they/their predecessors in interest having paid Rs.1,59,00,867/- to the opposite party as against the agreed consideration of Rs.2,17,08,600/-.  The complainants are therefore approached this Commission, seeking possession of the allotted flat, along with compensation etc.\

4.      The opposite party Parsvnath Hessa Developers Pvt. Ltd., has filed written version, contesting the complaint.  Since there was delay in filing the said written version, the said delay was condoned vide order dated 14.8.2018, subject to deposit of Rs.10,000/- as cost with the Legal-Aid Account of this Commission within two weeks from the date of the order.  The cost has not been deposited and no application seeking extension of time for the deposit of the cost has been filed.  The learned counsel for the opposite party states that he has no instructions from the opposite party in this regard.

5.      The complainant has filed affidavit by way of evidence on 19.3.2019.  Since the OP did not deposit the cost, subject to which the delay in filing the written version was condoned, its written version cannot be considered and the same is rejected.  Consequently, the OP is not entitled to file affidavit by way of evidence.

6.      I have heard the learned counsel for the parties and have considered the documents and affidavits filed by the complainant by way of evidence.

7.      During the pendency of this complaint, the complainants have taken possession of the allotted flat though, according to him it was taken by them only for fit outs and without the Occupancy Certificate having been obtained by the opposite party.  However, the fact remains that despite having approached this Commission by way of this consumer complaint, the complainants chose to take possession of the allotted flat without any orders from this Commission thereby bypassing the Commission and without reserving any right to receive compensation even after taking possession for the purpose of fit outs.  This is also not their case that they are not using the flat, for want of the Occupancy Certificate.  Therefore, the only relief to which the complainants are entitled is a direction to the opposite party to obtain the requisite occupancy certificate and compensation for the delay in delivery of possession.

8.      Though, the written version filed by the OP has been rejected on account of its failure to deposit the cost, subject to which the written version was taken on record, the learned counsel for the complainants states that several other consumer complaints of this very project have already been allowed by this Commission, after rejecting the grounds on which those complaints were opposed.  A reference in this regard is made to the decision of this Commission in CC/127/2017 Malika Raghavan Vs. Parsvnath Developers Ltd., decided on 19.4.2018.

      The decision of this Commission in Mallika Raghavan (supra), to the extent it is relevant, reads as under:    

“2.      The complaint has been resisted by the opposite party which had admitted the allotment made to the complainant and the execution of the agreement with her.  It is alleged in the written version filed by the opposite party that the construction was delayed on account of the reasons beyond the control of the opposite party.  The aforesaid reasons are stated to be (i) lack of adequate sources of finance, (ii) shortage of labour (iii) rise in manpower material cost and (iv) approval and procedural difficulties.

3.      It is also claimed that out of 18 towers in the aforesaid project, possession has been handed over in 11 towers and occupancy certificate has also been applied with respect to the five out of the remaining seven towers.  It is also alleged in the written version that the fit outs have already been offered to the allottees of towers D-4, D-5, D-6 and B-1.

4.      The learned counsel for the complainant has drawn my attention to the decision of this Commission dated 21.1.2016 in Consumer Complaint No. 91 of 2009 Col. Rajyavardhan Singh Rathore Vs. M/s. Parsvnath Developers Ltd., wherein the opposite party had allotted a flat in Tower D-4 of this very project to the complainant therein but had failed to deliver possession of the said flat to hm.  The complaint instituted by Col. Rajyavardhan Singh Rathore was resisted by the opposite party, primarily on the ground that the recession had hit Indian economy over past two years and Real Estate Sector was one of the worst hit sectors, as a result of said slow down.  The aforesaid plea taken by the opposite party was rejected by this Commission, noticing that the slowdown in the economy was not one of the grounds which could justify the delay in completion of the construction, since Clause 10(a) of the Agreement between the parties referred only to restrictions/ restraints from any Court / Authority, non-availability of building material, disputes with contractors / workforce etc., and the circumstances beyond the control of the developers.  It was noted that there was no evidence of the opposite party having constraints on account of such a reason in carrying out or completing the construction of the flat.  It was further noticed that there was no evidence of non-availability of building material or the opposite party having dispute with any contractor / workforce deployed at the site of the construction.  It was held that the delay in completion of the project unjustified.  The opposite party was therefore, directed to complete the construction of the flat in all respects, deliver its possession within eight months from the order of this Commission and also  pay compensation in terms of the said order to the complainants therein namely Col. Rajyavardhan Singh Rathore.

5.      In my view, lack of adequate sources of finance with the opposite party cannot be a justified ground for the delay in completion of the construction.  It was for the opposite party to arrange the finance required for completion of the project within the time stipulated in this regard and it has only to blame itself if it could not arrange the requisite finance.  As far as shortage of the labour is concerned, there is no evidence of the labour not being available during the relevant period.  Rise in the man power and material cost or approval and procedural difficulties cannot justify the delay in completion of the project. 

6.      During the course of hearing, I asked the learned counsel for the opposite party as to when it will be able to give possession of the flat to the complainant after obtaining the requisite occupancy certificate.  The learned counsel for the opposite party states that though they have already applied for the grant of the requisite occupancy certificate she is not in a position to commit any time limit within which they would obtain the requisite occupancy certificate from the concerned authorities.  In my view, the opposite party cannot be given indefinite time period to obtain the requisite occupancy certificate and it should obtain the same in a time bound manner at its own cost and responsibility.”

9.      Though, it is not known when exactly the construction of Tower C-4 had commenced, admittedly the OP had credited some compensation for the delay in offering possession, in the account of the complainants with effect from May, 2013, which implies that the construction of Tower C-4 must have commenced latest by April, 2010, and that is why compensation was given from May, 2013.

10.    For the reasons stated hereinabove, considering that the allotment was purchased by the complainants more than three years later and in view of the decision of this Commission in Satish Kumar Pandey & Ors. Vs. Unitech Limited in CC No. 427 of 2014 and connected matters decided on 08.6.2015, the complaint is disposed of with the following directions:

(i)      The OP shall pay compensation in the form of simple interest @ 8% per annum to the complainants with effect from 06.11.2016 till 03.2.2018, when the possession for fit outs was taken by the complainants.

(ii)      The complainants shall also be entitled to the agreed compensation for the period from 01.05.2013 to 05.11.2016.

(iii)     The OP shall also obtain the requisite occupancy certificate in respect of the flat allotted to the complainants at its own cost and responsibility within six months from today.

(iv)    The possession of the parking lot, unless already given, shall be given to the complainants within three months from today, provided that he has paid the agreed charges for the said parking lot.

(v)     The increase, if any, in stamp duty after 8.8.2013 shall be borne by the OP.

(vi)    The OP shall also pay a sum of Rs.25,000/- as cost to the complainants.