Haryana

Karnal

CC/233/2022

Raj Rani Pehal - Complainant(s)

Versus

Parshavnath Developers Limited - Opp.Party(s)

Gagan Sehgal

17 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.233 of 2022

                                                        Date of instt.19.04.2022

                                                        Date of Decision:17.10.2022

 

Raj Rani Pehal wife of Shri Satpal Singh and Smt. Sheela Devi wife of Mahinder Singh both resident of House no.129, sector-6, Urban Estate, Karnal. Aadhar card no.771396717499.

 

                                               …….Complainants.

                                              Versus

 

1.     Parshavnath Developers Ltd.

Having its registered office at Parshavnath metro tower, near Shadhra Metro Station, Shadhra Delh-110032.

 

2.     Parshavnath Developers Ltd. having its site office at Parshavnath city-II, Meerut Road, Karnal.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Gagan Sehgal, counsel for the complainants.

                    Shri Sanjay Singla, counsel for the opposite parties.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainants have filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs had launched a residential township under the name and style as Parshavnath Developers Ltd. at Meerut Road, Karnal. Earlier one Mr. Rajveer Singh Rathi had purchased one plot bearing no.369, in block no.C, measuring 199.83 sq. meter from (239 sq. yards) from the OPs in the year 2014 and thereafter aforesaid plot has been transferred in the name of Narender Singh and then the aforesaid plot has been purchased by the complainants from said Narender Singh and this regard a Buyer Agreement was also executed between the complainants and the OP no.1 on 01.06.2015 through which the basic price of the aforesaid plot has been fixed as Rs.27,24,600/- excluding EDC and IDC charges. At the time of booking of the said plot Rs.13,90,278/- were paid to OPs by the first buyer which later on has been paid by the complainants to the first/second buyer and accordingly the said plot has been transfer in his name. As per clause-10 of the plot buyer agreement, OPs were under legal obligation to handover the possession of abovesaid plot within 24 months from the date of signing of the said agreement. Moreso, as per clause 10(c) it is critically be mentioned in case of delay of offer of possession of said plot beyond stipulated period, subject to the force majeure and other circumstances as aforesaid clause, the developer shall pay to the buyer compensation @ Rs.12% per sq. meter. OPs have also given development linked payment plan i.e. at the time of allotment 25% within 2 months of allotment, 10%+33% EDC and IDC within four months of allotment, 34% EDC and IDC on laying of storm water drain in front of the plot 10%, on laying of sever line in front of plot 10%, on laying of first layer of WBM in front of plot 5%, on fixing of street light in front of the plot 5%, at the time of offer of possession 5% the total cost of the said plot comes to Rs.30,85,968/-. As per the demand of OPs, complainants paid the sale consideration of the aforesaid plot. The complainants had paid Rs.29,54,486/- to the OPs upto 2016 and only Rs.1,31,482/- were pending which suppose to pay only at the time of offering of possession of the aforesaid plot. OPs neither developed the colony nor made any essential amenities as prescribed in the plot buyer agreement. It is further averred that OPs had failed to deliver the possession of the plot in question to the complainants within the stipulated period. After the lapse of more than six years OPs sent a demand notice cum offer of possession dated 19.04.2021 through which OPs illegally demanded Rs.3,55,175/- from complainants as balance amount on the basic cost, EDC-IDC, and interest free security but in fact complainants is under legal obligation to pay actual balance amount of Rs.1,31,482/-+interest free security i.e. Rs.24,368/-. It is further averred that if the area of plot in question has been enhanced by the OPs then in that eventuality the OPs are only entitled to receive the amount of enhanced area if any at the rate of actual sale price but rest of the amount is illegally demanded by the OPs more so by way of said letter/notice. OPs also demanded Rs.1,64,280/- as interest on delayed payment upto 31.05.2020 which is quite illegal, arbitrary and not binding upon the rights of the complainants. The maintenance charges, which OPs had claimed by way of letter dated 19.04.2021, is also quite illegal and arbitrary, when OPs have failed to deliver the possession of the plot in time then the question of paying the maintenance does not arise at all, as well as amount of registration fee is concerned that is not a matter of OPs but it is a matter between complainants and registration authority.

2.             It is further averred that complainants have received the information under RTI Act from the office of DTP, Karnal regarding the licence of OPs’ colony and after receiving the said information complainants came to know that the license no.141/2014 dated 29.08.2019 was issued to the OPs which was valid only upto 28.08.2021 and after the expiry of said period till on date OPs never applied for its renewal, so OPs are illegally entitled to offer the possession of either plot to any buyer without renewal of OPs license. As such notice dated 19.04.2021 is having no relevance under the eyes of law because there is no status of OPs’ colony without renewal of the licence. OPs have illegally and arbitrary imposed the interest upon the installment Rs.1382/- on 30.04.2014 and Rs.8997/- on 30.06.2014, Rs.65919/- on 31.08.2014, Rs.7043/- on 15.04.2015, Rs.9730/- on 15.05.2015, Rs.12415/- on 30.05.2015, Rs.367/- on 17.07.2015, Rs.21486/- on 17.07.2015 and Rs.1,43,254/- on 05.10.2016 as per the account statement supplied by the OPs is quite illegal and arbitrary because complainants regularly paid the installment in time without making any default so called imposed interest is liable to be waive off. Complainants approached the OPs so many times and requested to refund the amount of Rs.29,54,486/- with interest @ 24% per annum or to handover the possession of plot but complainants failed to do so inspite of receiving the several emails of the complainants. OPs neither have made the payment to the complainants nor offered the possession of plot. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence this complaint.

3.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the original allottee namely, Mr. Rajveer Sing Rathi was allotted a plot admeasuring 300 sq. yards in the project “Parsvnath City, Karnal, vide registration letter dated 12.03.2011. Thereafter, the original allottee vide agreement to sale dated 08.02.2014 transferred the plot in favour Mr. Narender Singh and then Mr. Narender Singh on 01.06.2015 transferred the plot in favour of complainants. complainants were habitual defaulters in making the payment towards the basic cost of the plot. OPs have sent various reminders/demand letters to the complainants requesting them to make the payment towards the basic cost of the plot. The complainants were issued letter for offer of possession on 19.04.2021 wherein the complainants were informed that the plot is complete in all respect and physical possession of the same can be obtained after completing all the due formalities. It is further pleaded that the delay in completion of the project is beyond the control of the OP. It is further pleaded that the clause 10(a) of the Plot Buyer Agreement clearly stipulates that the time is not the essence of the contract and therefore even if the period of 24 months have expired, the agreement having a relaxation clause ‘endeavour’ attracts the doctrine that ‘time is not the essence of the contract.” It is denied that the OPs neither developed the colony nor made any essential amenities for the purpose of maintaining and developing the residential colony as prescribed in the Plot Buyer Agreement. It is also denied that OPs through offer of possession dated 19.04.2021 illegally demanded as Rs.3,55,175/-. It is further denied that maintenance charges which the OPs had claimed by way of offer of possession is illegal and arbitrary. The delay in handing over the possession of the plot occurred due to unforeseen circumstances which were beyond the control of the OPs. OPs have offered the possession of the plot to the complainants but they are not coming forward and taking possession of the plot. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainants has tendered into evidence affidavit of complainants Ex.CW1/A, copy of Aadhar card of complainants Ex.C1, copy of Aadhar card of Sheela Devi Ex.C2, copy of plot buyer agreements dated 01.06.2015 Ex.C3, copy of account statement Ex.C4, copy of customer ledger Ex.C5, copy of letter dated 19.04.2021 regarding offer of possession Ex.C6, copy of information under RTI Act  dated 18.02.2020 Ex.C7, copy of affidavit of Narender dated 06.03.2014 Ex.C8, copy of agreement to sell  dated 06.03.2014 Ex.C9 and closed the evidence on 21.07.2022 by suffering separate statement.

6.             On the other hand, learned counsel for OPs have tendered into evidence affidavit of Rajan Wahal Ex.OPW1/A, copy of resolution dated 01.06.2017 Ex.OP1, copy of letters dated 21.10.2018, 16.11.2018, 10.12.2018, 17.03.2018, 25.04.2017, 19.06.2017, 20.07.2017, 28.08.2017, 09.10.2017, 26.11.2017 Ex.OP2 and closed the evidence on 17.08.2022 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel of complainants, while reiterating the contents of complaint, has vehemently argued that complainants have purchased the plot bearing no.369 in the project of the OPs for the total consideration of Rs.30,85,968/- and complainants had paid Rs.29,54,486/- to the OPs upto 2016 and only Rs.1,31,482/- were pending which supposed be paid at the time of offering of possession of the aforesaid plot. As per clause 10 (a) of the plot buyer agreement, OPs were under legal obligation to handover the possession of the abovesaid plot within 24 months from the date of signing of the said agreement.  OPs neither developed the colony nor made any essential amenities as prescribed in the plot buyer agreement. He further argued that OPs had failed to deliver the physical possession of the plot in question to the complainants within the stipulated period. After the lapse of more than six years, OPs sent a demand notice cum offer of possession dated 19.04.2021 through which OPs illegally demanded Rs.3,55,175/- from complainants as balance amount on the basic cost. Infact, only Rs.1,31,482/- is pending qua the complainants. OPs also demanded Rs.1,64,280/- as interest on delayed payment upto 31.05.2020 which is quite illegal, arbitrary and not binding upon the rights of the complainants. The maintenance charges which OPs had claimed by way of letter dated 19.04.2021 is also quite illegal and arbitrary, when OPs have failed to deliver the possession of the plot in time then the question of paying the maintenance does not arise at all.

OPs have illegally and arbitrary imposed the interest upon the installments because complainants have regularly paid all the installments within time without any default. Complainants approached the OPs so many times and requested to handover the possession of plot but OPs failed to do so and lastly prayed for allowing the complaint. Learned counsel for complainants relied upon following judgments titled as Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022; Chandigarh Housing board Vs. M/s Parasvanath Developers Pvt. Ltd. and Anr. 2020(4) CCC 358 (S.C.); NBCC (India) Limited Versus Shri Ram Trivedi 2021 (3) CCC 080 (S.C.) and Marvel Omega Builders Pvt. Ltd. and Anr. Versus Shrihari Gokhale and Anr. 2020 (1) CCC 248 (SC).

9.             Per contra, learned counsel for the OPs while reiterating the contents of written version, has vehemently argued that complainants were habitual defaulters in making the payment towards the basic cost of the plot. OPs have sent various reminders/demand letters to the complainants requesting them to make the payment towards the basic cost of the plot. The complainants were issued letter for offer of possession on 19.04.2021 wherein the complainants were informed that the plot is complete in all respect and physical possession of the same can be obtained after completing all the due formalities. OPs have developed the colony or made essential amenities for the purpose of maintaining and developing the residential colony as prescribed in the Plot Buyer Agreement. OPs through offer of possession dated 19.04.2021 legally demanded as Rs.3,55,175/-. The maintenance charges have claimed by the OPs by way of offer of possession is also legal. The delay in handing over the possession of the plot occurred due to unforeseen circumstances which were beyond the control of the OPs. OPs have offered the possession of the plot to the complainants but they are not coming forward for taking possession of the plot and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, the complainants had purchased a plot bearing no.369, in block C measuring 199.83 sq. mt. from the OPs. It is also admitted that total consideration of said flat was of Rs.30,85,968/.  It is also admitted that complainants have paid Rs.29,54,486/- to the OPs upto 2016.  

12.           As per payment plans, complainants had deposited Rs.29,54,486/- i.e. 95% of the total consideration and only Rs.1,31,482/- i.e. 5% is pending which is to be paid at the time of offer of the possession.

13.           As per clause 10 (a) of the plot buyer agreement  Ex.C3, dated 01.06.2015, the possession of the plot in question was to be delivered within 24 months from the date of signing of the said agreement. The clause 10(a) of the Plot Buyer’s Agreement reproduced as under:-

“The Developer shall endeavour to complete the internal development works of the said colony within twenty four (24) months from the date of signing of this Agreement, subject to force majeure, restraints or restrictions from any courts/authorities, scarcity/non-availability in construction materials, water fuel, electricity etc., or any other circumstances beyond the control of the Developer, and subject to timely payments by the Buyers. For the purposes of this clause/Agreement, the date of submission of application with the competent authority for obtaining completion/occupancy certificate in respect of internal development for obtaining completion/occupancy certificate in respect of internal development of the said colony shall be reckoned as the date of completion of development of the said colony. No claim by way of damages/compensation shall be against the Developer in case of delay in handing over possession on account of any of the said reasons and the Developer shall be entitled to extension of time for completion of internal development”.

               

14.           The OPs have offered the possession of the plot in question on 19.04.201, vide letter Ex.C6.  The plot buyer’s agreement has been signed on 01.06.2015 and as per clause 10(a) of plot buyer’s agreement, the possession  of the plot was supposed to be handed over till dated 31.05.2017 but same was offered on 19.04.2021, vide letter Ex.C6. There is delay in offering the possession of near about four years.

15.           OPs have taken a plea that delay in handing over the possession of the plot occurred due to unforeseen circumstances, but OPs have miserably failed to prove its version by leading any cogent and convincing evidence. There is nothing on file to believe the version of the OPs that there were any unforeseen circumstances. Hence, plea taken by the OPs has no force at all.

16.           OPs have issued letter dated 21.10.2018, 16.11.2018, 10.12.2018, 17.03.2018, 25.04.2017, 19.06.2017, 20.07.2017, 28.08.2017, 09.10.2017, 26.11.2017 as Ex.OP2 whereby OPs have asked the complainants to pay Rs.1,31,482/- in respect of the plot in question. Meaning thereby, only Rs.1,31,482/- was pending qua the plot in question but now OPs have demanded Rs.3,55,175/- as remaining payment from the complainant. OPs have failed to explain as to why they have demanded Rs.3,55,175/-, especially when they have sent letters and reminders to the complainants for depositing the remaining amount of Rs.1,31,482/- only which was to be paid at the time of offering of possession.    

17.           OPs have taken a plea that complainants were habitual defaulter in making the payment towards the basic cost of the plot, but OPs have miserably failed to prove that on what point complainants have not deposited the payment within time as per payment schedule. Except affidavit of Rajan Wahal as Ex.OPW1/A and letters Ex.OP2, there is nothing on the file to prove that complainants have not deposited the payment within time as per the schedule of the OPs. Hence, the plea taken by the OPs is also of having no force.    

18.           Both the parties are bound with the terms and conditions of the Floor Buyer’s Agreement. As per clause 10(a) of the Plot Buyer’s Agreement, OPs were liable to hand over the physical possession within stipulated period. As per the above clause the possession of the plot in question was to be handed over to the complainants on or before 31.05.2017. It has been proved on record that there is delay to deliver the physical possession of the plot in question. Complainants cannot be made to wait indefinitely for the delivery of the possession. In this regard we are relying upon the following authorities:-

19.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

20.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that acts of the OPs not handing over the possession of the plot in question to the complainants within stipulated period amounts to deficiency in service and unfair trade practice. Thus, the complainants are entitled for interest from 02.06.2017 i.e. after 24 months from the date of signing of plot buyer’s agreement till the date of offer of possession of plot i.e. 19.04.2021 alongwith compensation on account of mental agony and harassment and litigation expenses, etc.

21.           Complainants have claimed the interest on deposited amount with the OPs on the ground of delay in offer of the possession. Admittedly, complainants deposited Rs.29,54,486/- with the OPs and as per terms and conditions of the plot buyer’s agreement the possession of the plot was supposed to be handed over within 24 months from the signing of the plot buyer’s agreement Ex.C3 dated 01.6.2015 but same was offered vide letter Ex.C6 dated 19.04.2021. OPs have enjoyed the money earned by the complainants.  Thus, the complainants are entitled for the interest on the deposited amount from 01.06.2017 to 19.04.2021 i.e. not offering the physical possession of the plot in question.

22.           OPs have also demanded maintenance charges from the complainants. Admittedly, complainants have sought information under RTI Act from the office of DTP, Karnal regarding the licence of OPs’ colony and after receiving the said information complainants came to know that the license no.141/2014 dated 29.08.2019 was issued to the OPs which was valid only upto 28.08.2021 and after the expiry of said period till on date OPs never applied for its renewal, so OPs are illegally entitled to offer the possession of either plot to any buyer without renewal of OPs license. Without offering the possession and renewal of the licence from the competent authority, we are of the considered view that that OPs cannot demand/charge the maintenance charges from the complainant/allottees. In Madhusudhan Reddy R. and others Versus VDB Whitefield Development Pvt. Ltd. 2022 SCC Online NCDRC 13 whereby Hon’ble National Commission held in para no.27 of the said judgment, “regarding the issue of maintenance charges, it is fact that, the complainants have taken physical possession of their respective units. It would be logical that, there would be expense on the maintenance of certain common services. It is also a fact that, the Occupancy Certificate has not been obtained yet. It means that the project is not yet fully complete and that not all services, promised are being provided. As per the Order of this Commission in Kamal Kishore Vs. Supertech Limited (supra), no maintenance charge should ‘be levied before obtaining the Occupancy Certificate. In this case, even of some of the allottees including the complainants, have taken possession of their respective units, it would be considered as paper possession only. So, the question of charging maintenance charge is in our considered view not proper and therefore should not have been collected and should not be collected till charge only after the Occupancy Certificate is received”.

 23.          Hence, keeping in view the law laid down in the above judgments and facts and circumstances of the case, the complainants are not liable to pay the maintenance charges to the OPs.        

24.           In view of above discussion, we allow the present complaint and direct the OPs to handover the actual and physical possession of the plot in question to the complainants. We further direct the OPs to pay 9% interest on the amount i.e. Rs.29,54,486/- deposited by the complainants from 01.06.2017 till the date of offer of possession i.e. 19.04.2021. We further direct the OPs to pay Rs.25,000/- to the complainants on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses. Complainants are also bound to pay the remaining payment Rs.1,31,482/- to the OPs. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.     

Dated:17.10.2022                                                                    

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

                     Member                        Member