Delhi

East Delhi

CC/308/2018

KIRAN GUPTA - Complainant(s)

Versus

PARSHAVNATH DEVELOP. - Opp.Party(s)

26 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 308/2018

 

	Kiran Gupta R/o. B2/158, Paschim Vihar, New Delhi-110063.	….Complainant
Versus
	Parsvnath Developers Ltd. Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi-110032.   Also At:   6th Floor, Arunachal Building 19, Barakhamba Road, New Delhi-110001.	……OP

 

Date of Institution: 25.09.2018

Judgment Reserved on: 04.07.2023

Judgment Passed on: 26.07.2023

                  

QOURUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member) On leave

Ms. Rashmi Bansal (Member)

 

Order By: Ms. Rashmi Bansal (Member)

 

 

JUDGEMENT

The present case is filed by the complainant against the OP for failing in handing over the possession of the plot or refund the amount paid and alleging deficiency of service and unfair trade practice on the part of the OP. The complainant prayed for a refund of the amount deposited with OP along with compensation for mental agony and harassment and litigation costs with interest.

1. Succinctly, the facts of the case are that the complainant has booked a unit with OP in its upcoming residential project named ‘Parsavnath Sonepath’ in Sonepath Haryana, to be developed by OP. The complainant paid the advance booking amount of Rs.8,10,000/-against the receipt for a plot measuring 300 sq yards. The OP1 issued an endorsement dated 06.06.2008 confirming that the complainant's name was substituted in place of M/s Hari Om Properties (from whom he has purchased the said property) and the above-stated amount was adjusted towards the consideration. The total cost of the said plot was Rs. 15,75,000/- under the down payment plan. Possession of the above-said plot was promised to be delivered by 2010-11. The complainant submits that the OP has assured him that the project will be completed within two years from the date of booking and the possession of the same will be handed over within time, however, despite the passing of more than 10 years, the project has not yet been started and there is no development work on the site. The complainant demanded a refund of money paid to OP1 with interest but despite repeated requests, calls, and visits to the OP’s office, the OP1 kept on avoiding the issue and gave vague evasive replies and made misleading representations, assurances and promises. The complainant further submits that on 28.03.2018, he visited OP’s office and upon asking for a refund, a statement of account was given to him showing an outstanding amount of Rs. 8,10,000/- and a separate sheet showing the calculation of interest. The complainant also submits that a notice dated 01.05.2018 was sent to OP1, but OP1 failed to make any payment. The complainant submits that the OP1 has acted mala-fide, with dishonest intention to not to deliver possession of the said project to the complainant, have misled him with its false assurance and promises, enriched himself by the wrongful gain and thus has committed deficiency in service and unfair trade practice, for which OP1 is liable for compensation to the complainant in addition to the refund of the amount paid by him and interest thereon. The complainant has relied upon the judgments of Hon'ble NCDRC in Kabir Sethi Vs. Unitech Ltd. and Puma Realtors Pvt. Ltd. &Ors Vs. Abha Arora &Ors. Of NCDRC.
2. Upon notice, OP has appeared and filed his written statement stating that the complaint is not maintainable and liable to be dismissed as the complainant has suppressed the true material facts and filed the present complaint on a misconceived factual basis. The OP submits that originally in the month of February 2005, the OP2 approached him for the investment of the money in real estate and searching for availability of any residential plot of land in the project yet to be ventured in the near future and deposited a sum of Rs.3,93,500/- towards booking amount for the plot of land measuring 300 sq yard and advance registration form was submitted by OP2 on 08.02.2005. Subsequently, the OP2 transferred, for consideration of the above said booking in favour of OP3, a proprietor concern, during January 2006 by an agreement to sale dated 19.01.2006 between the OP2 & OP3.Thereby, OP1 had substituted OP3. Later, OP3 i.e. Hari Om Properties had also transferred its interest and right of purchase in the instant property in favour of the complainant in November 2008 vide agreement to sale/receipt dated 20.11.2007 executed between OP3 and the complainant.
3. The OP1 further submits that there was no specific agreement/plot buyer agreement or any other contract executed between OP1 and any of the allottee/purchaser w.r.t. the property in question. OP1 further submits that the complainant had obtained the right to purchase the subject property from the open market directly from OP3 and therefore there is no privity of contract between the complainant and OP1. OP1 also mentioned an affidavit-cum undertaking dated 16.05.2008 executed by the complainant, wherein vide clause no. 7, they had subsequently agreed that in the event they were not allotted any plot in the present/future project, then they would accept the refund of the deposited money with the simple interest @9% p.a. from the date of acceptance of the nomination by the company i.e. OP1. It is also submitted that there is no cause of action against OP1 for any claim over & above the terms of the above-stated undertaking. On 19.05.2008, the OP3 filed an application for nomination and the OP1 has also issued an endorsement receipt dated 06.06.2008 in favour of the complainant which has been issued in response of the same.
4. OP1further submits that admittedly the complainant is a permanent residence of Delhi and has booked a plot in the upcoming project of OP1 in Sonepat, Haryana, for the purpose of investment in the property for gaining profit and therefore the complainant is not a consumer under Consumer Protection Act, 1986.  OP1 also took the plea that the matter involves complicated questions of facts & law which need to be proved by leading oral as well as documentary evidence, therefore, the Consumer Court is not an appropriate Court of law for the determination of such questions and relied on AIR 2002 SC 568Synco Industries Vs.  State Bank of Bikaner. OP1 also took the objection as to the pecuniary jurisdiction of this Commission referring judgment of Hon’ble NCDRC Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd. OP1 has also relied upon the judgment of Hon’ble Supreme Court in Ganeshi Lal Vs. Shyam wherein it was held that failure in handing over the possession of land simpliciter cannot be brought within the jurisdiction of this Commission. The OP1 has submitted that the complainant has filed the present complaint after a delay of 10 years from the date of his nomination on 06.06.2008 which is an incomplete disregard of Section 24 (a) of the Consumer Protection Act, 1986. The OP submits that based on the above-stated arguments the complaint is liable to be dismissed with cost.   
5. The complainant has filed the rejoinder reiterating his version in the complaint. Both parties have filed their respective evidence along with documents in support.
6. The complainant has filed in support of his case the following documents;
   1. The copy of the receipt of the payment of Rs.8,10,000/- as Ex. C-1.
   2. The copy of the endorsement receipt dated 06.06.2008 as Ex. C-2.
   3. The copy of the statement of account along with the calculation of interest as Ex. C-3.
   4. The copy of the notice dated 01.05.2018 as Ex. C-4 along with Postal receipt and tracking report as Ex. C-5 & C-6.
7. The OP has exhibited the following documents;

1. Copy of the Board Resolution dated 01.06.2017 as Ex. OP-1/1.
2. The Advance Registration Form submitted by the said first allottee, OP2  Ms Kanchan Sharma on 08.02.2005 as Ex. OP-1/2.
3. The Receipt/Agreement to sell dated 19.01.2006 executed between Ms. Kanchan Sharma/OP2 and Hari Om Properties/OP3 as Ex. OP-1/3.
4.  The Receipt/Agreement to sell dated 20.11.2007 executed between Hari Om Properties/OP3 and Ms. Kiran Gupta as Ex. OP-1/4.
5. The affidavit-cum-undertaking and a separate affidavit of the complainant executed by the complainant both dated 16.05.2008 as Ex. OP-1/5 & as Ex. OP-1/6.
6. The application for nomination submitted by the allottee as Ex. OP-1/7.
7. The copy of the Endorsement Receipt dated 06.06.2008 issued in favour of the complainant as Ex. OP-1/8.

8. Before deciding the matter it is clarified that by the amended memo of parties dated 03.01.2019, the complainant has deleted OP2 and OP3 and kept OP1 as party to the dispute.
9. We have perused the documents filed by the both the parties and heard the arguments.
10. Admittedly the booking of the plot has been transferred in the name of the complainant as per the endorsement receipt dated 06.06.2008 and the payment of 8,10,000/- thereby is not denied by OP1 (Rs. 7,87,000/- payment for the allotment and 22,500/- towards administrative charges) as per statement of account filed by complainant as Ex. C3.
11. The OP has taken the objection as to the limitation of the complaint which is filed after 10 years from the date of endorsement in favour of the complainant 06.06.2008. It is the settled legal proposition that the complainant has got a continuous cause of action till the possession is given and the sale deed is registered as failure to deliver possession being a continuous wrong and buyers can always approach the consumer's forum. Hon'ble Supreme Court in Meerut development authority versus Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) has held that the buyer has a recurring cause of action for filing a complaint for not delivering possession of the plot. In the present case also the possession has not been given which is a case of continuous action and the complaint is not time-barred. The objection of the complainant is bereft of any merit and therefore rejected.
12. So far as the question of objection as to the pecuniary jurisdiction is concerned the pecuniary limit of this Commission is up-to Rs. 50 lakh and the matter in dispute is concerned of the payment of consideration Rs. 8,10,000/- therefore this Commission having pecuniary jurisdiction to adjudicate the matter.
13. The OP1 objection that the complainant is not the consumer is not substantiated by any evidence or documents that show that said plot was booked by the complainant for commercial or investment purposes. There is no rule that a person cannot own two houses for his own use. Therefore, this objection of the OP1 is rejected and the complainant is the consumer under Consumer Protection Act, 1986.
14. The judgment in Ganeshlal Vs. Shyam, as relied on by OP1 is not applicable to the present case, as documents on record show that the unit booked under the project is a residential plot subject to the development for the residential purpose, therefore, the sale is not the sale of plot only but it had provisions for the development for the residential purpose.
15. Further, Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Vs. Govindam Raghav (2019) CPJ 34 held that the complainant cannot be compelled to accept the possession offered after 2 years of the stipulated period. It has also been held that any clause in the agreement which is unfair and unreasonable amounted to unfair trade practice.
16. Also Hon'ble Supreme Court of India  in Manoj Kawatra v. Pioneer Urban Land & Infrastructure, 2021 SCC OnLine NCDRC 325, decided on 01.11.2021 has held that a person cannot be made to wait indefinitely for the possession of the flats allotted to him/her.
17. The false assurance given to the complainant for delivery of possession while keeping the hard-earned money of the buyer for approximately 11 years is unfair trade practice on the part of OP1. Hon’ble Supreme Court Bengaluru Development Authority Vs.  Syndicate Bank (2007) 6 SCC 711, the Hon'ble Supreme Court of India has clearly held that where possession is not offered within the specified period, the allottee is entitled to a refund of his deposits with interest.
18. After considering the facts and circumstances of the cases and above stated judgments of the Hon'ble Supreme Court of India and admission of the OP1, this commission is of the view that by not offering the possession of the above-said plot to the complainant, the OP1 has caused harassment, mental agony and inconvenience and financial loss to the complainant as by keeping hard-earned money of the complainant for 11 long years with him. The OP1 has utilised the same money for his own use and wrongfully enriched himself while depriving the complainant of utilising his own money and causing him financial loss. Failure on the part of OP1 to offer/provide possession of the said plot despite receiving 50% of the total consideration, amounts to deficiency in service and utilising the complainant’s money for such a long period amounts to unfair trade practice. Since the complainant now after 11 years is no more interested in the project particularly when the same is not in a habitable condition, he, therefore, is entitled to for refund of the amount paid by him to OP1. Therefore, OP1 is directed to pay the complainant –

1. The entire amount of Rs.8,10,000/- with interest @10 % p.a. from the date of endorsement i.e. 06.06.2008 till the final payment.
2. A compensation of Rs.25,000/- for deficiency in service and unfair trade practice that had caused mental agony and harassment to the complainant.
3. An amount of Rs.10,000/- towards litigation cost.

19. The above stated order is to be complied by OP1 within30 days from the date of receiving of the order, failing which the entire amount accrued till 30^thday shall carry interest @12% p.a. till actual realisation.
20. The copy of the Order be supplied/sent to the Parties free of cost as per rules.
21. The case could not be decided within stipulated period due to heavy pendency of the cases before commission.

File be consigned to Record Room.

Announced on 26.07.2023.