Haryana

StateCommission

CC/323/2016

SUMAN RANA - Complainant(s)

Versus

PARSHVNATH DEVELOPERS LTD. - Opp.Party(s)

VISHAL GARG NARWANA

20 Aug 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.323 of  2016

Date of the Institution:21.10.2016

Date of Decision: 20.08.2018

 

Suman Rana W/o Mr. Surender Rana R/o H.No.2632, Ward No.1, New Housing Board, Bhiwani.

Present Address:

Suman Rana W/o Mr.Surender Rana, House No.2, Type IV, CRPF Complex, Hallo Majra, Chandigarh.

                                                                   .….Complainant

Versus

 

1.      M/s Parsvnath Developers Limited through its Managing Director, registered office at 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001.

2.      M/s Parsvnath Developers Limited through its Manager, Parshavnath Royale, Sector-20, Panchkula.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Vishal Garg Narwana,  Advocate for complainant.

Mr.B.R.Madan, Advocate counsel for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          Complainant-Suman Rana filed complaint under the Consumer Protection Act, 1986 (In short “Act”) pleaded therein that complainant booked 3 BHK flat bearing No.T-3-901, 9^th Floor having an approx 1780 sq. ft. (equivalent to 165.36 sq. mtrs) of super built area of opposite parties (O.Ps.) The basic sale price of the flat was Rs.53,85,000/-.  The complainant had deposited Rs.20,40,095/- including service tax to the Ops at different phases. Apartment Buyers agreement was executed between the parties on 19.12.2011. As per clause No.10 (a) of the agreement, the construction of the flat was to be completed within 36 (months) +6 months (grace period)=42 months therefrom, but, till date construction of the flats were not completed and possession was not delivered to him.   The O.Ps. have committed the unfair trade practices and also cheated the complainant and other innocent people also. The complainant requested the O.P.No.1 to refund the amount but till date O.P.No.1 was not paid any heed to the request of the complainant.  Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to make payment of a sum of Rs.20,40,095/- which had been deposited by the complainant alongwith interest @ 18% per annum from the date of entering into the agreement with the complainant i.e. from 19.12.2011 and to pay compensation of Rs.1,50,000/- for damages and compensation of Rs.One lac for the harassment hardship and mental agony and the amount of Rs.50,000/-  as litigation expenses.

2.                Notice of the complaint was issued against the O.Ps. and the reply was filed, wherein the averments taken in the complaint were  strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection it has been alleged that as per clause 10 (a) of the flat buyer agreement stipulate that date of final construction of the flat which the possession is to be delivered to the complainant was not fixed.  However the global recession which had hit the market/economy in the year, 2009 and which extended in the subsequent years as well affected the real estate sector of India to a large extent especially in Panchkula area.  Only 70 units were lying unsold in the said project with the OP and more than Rs.9,00,00,000/- was still remains outstanding towards the customer in the said project.

4.                On merits, O.ps. issued various demand letters to him , but, of no avail.  O.Ps. had  cancelled the allotment of the flat on 02.02.2016.  O.Ps. denied that he was entitled to refund of deposited amount alongwith 18% interest.  Thus there was no deficiency in service on its part. Other averments were also denied and requested to dismiss the complaint.

5.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-7 and closed her evidence.

6.                On 18.05.2018, learned counsel for the O.Ps. sought adjournment for recording his evidence, but, his request was declined and adjourned the case for arguments.

7.                The arguments have been advanced by Sh.Vishal Garg Narwana learned counsel for the complainant as well as Mr.B.R.Madan, learned counsel for the opposite parties.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led by the parties during the proceedings of the complaint had also been properly perused and examined.

8.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainant is entitled to get refund of the amount which he has already deposited alongwith the interest. 

9.                In order to prove these important points the complainant has examined Complainant-Suman Rana who has tendered her witness Ex.CW-1 and further tendered the documents Ex. C-1 to C-7. 

10.              While unfolding the arguments it has been argued by Sh.Vishal Garg Narwana, Advocate learned counsel for the complainant that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that an amount of Rs.20,40,095/-/- had been paid by the complainant to the  O.Ps.  As per the buyers agreement Ex.C-1 and the terms and conditions incorporated therein including date of delivery of the possession, the possession complete in all respect was to be delivered to the complainant by the O.Ps. on or before 20.06.2015 which includes six months grace period.  It is also disputed that O.Ps. cancelled the allotment of the flat on 02.02.2016.

11.              The period within which, the possession of the unit was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount which he had already paid alongwith interest. 

12.              On the other hand, it has been argued by Sh. B.R.Madan, learned counsel for the O.Ps. that the amount which the complainant had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  Several reminders issued to him regarding balance payment, but, he has not deposited the balance amount.  It is true that the documents were executed between the parties which includes the buyers agreement which contains all the terms and conditions for allotment, for payment of the installments, charging the interest for delayed payment and delivering of possession which includes six months grace period.  There was global recession which had hit the market/economy in the year, 2009 and which extended in the subsequent years as well affected the real estate sector of India to a large extent especially in Panchkula area.  Only 70 units were lying unsold in the said project with the OP and more than Rs.9,00,00,000/- was still remains outstanding towards the customer in the said project.  O.Ps. already cancelled the allotment of the flat on 02.02.2016.  Under these circumstances, the refund cannot be granted alongwith interest and the complaint may be dismissed. 

13.    As per the submissions made by Sh.Vishal Garg Narwana learned counsel for the complainant as well as Sh.B.R.Madan, learned counsel for the opposite parties and after perusal of the entire record as well as appreciation of the evidence during the prosecution of the complaint.  It is true that the O.Ps. have launched a housing scheme under the name and style of  “Parsvnath  Royale” in the area of Disrict Panchkula.  The complainant had opted to book a flat and initially, had deposited an amount of Rs.8,90,095/- thereafter, the buyer agreement EX.C-1 was executed between the parties on 19.12.2011 and as per sub clause 10 (a) of the agreement, it contains the terms and conditions of completion of the project and the most important part is that delivery of the possession within the period of 36 months a grace period of six  months has further been allowed.  As per the details of the payment mentioned in para N0.5 of the complaint, on 19.10.2011, the complainant had paid sum of Rs.7,50,000/- against the receipt Nos.22407 and 22408.  Similarly the complainant had further paid a sum of Rs.4,00,000/- against the receipt No.23804 dated 16.06.2012.  It is apparently clear that complainant had deposited Rs.20,40,095/-  including service tax to the O.ps. whereas, the total price of the unit was Rs.53,85,000/-.  The buyers agreement was executed on 19.12.2011 and as per the clause 10 (a) of the buyers agreement, the possession of the flat was to be delivered within 36 (months) +6 months (grace period)=42 months or on or before 20.06.2015.   Still the period of 42 months had already expired and while advancing the arguments, it has been fairly conceded on behalf of the O.Ps. that the project is yet to be completed.  The possession cannot be delivered under these constraint circumstances the O.ps. cannot be allowed to utilize or to enjoy the hardened money deposited by the complainant for getting the unit booked for their livelihood. It is the normal trend of the developers/O.Ps. that they would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed.  The complainant had to wait more than period of 42 months for delivery of possession.  In such like matters the court has to be callous enough and the O.Ps. are to be dealt with severe hands  and cannot be allowed to mis-utilizing the funds of the investors or to have  a mis-directions of funds, which ultimately has been resulted into non-completion of the project and ultimately, it is the complainant  or the investors who had to suffer.  As far as the payment schedule is concerned, it has been mentioned in the document Ex.C-6 which is available on page No.36 it has been categorically mentioned that before delivery of the possession, the applicant or the investors or the present complainant had to deposit 35% of the total cost or price of the unit and remaining 65% is to be paid at the time of offering the possession.  In such circumstances, it is evidently clear that complainant had already paid a sum of Rs.20,40,095/- and as such the complainant is entitled to get the refund of the amount in all proposition, the possession of the dwelling unit cannot be delivered even in coming years and moreover a period of more than three years have already been expired, hence the O.Ps. are directed to make a payment of Rs.20,40,095/- alongwith interest @ 12% per annum  from the date of respective deposits and till realization.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period of three months in that eventuality the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period.   The complainant is also entitled  of Rs.50,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

August    20th, 2018                                      Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.