Delhi

North

CC/5/2024

RAKESH AGGARWAL - Complainant(s)

Versus

PARSVNATH DEVELOPERS LIMITED - Opp.Party(s)

24 Jan 2024

ORDER

District Consumer Disputes Redressal Commission- 1 (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe-II Building,Tis Hazari Court Complex, Delhi-110054

 

Consumer Complaint No. 4/2024

In the matter of

Smt. Manju Aggarwal

W/o Sh. Pradeep Aggarwal

R/o- 26/88,

Shakti Nagar,

Delhi-110007                                                …                 Complainant

VERSUS

Parsvnath Developers Limited

G-2, Arunachal Building,

19, Barakhamba Road,

Delhi-110001                                                …                 Opposite Party

 

AND

Consumer Complaint No. 5/2024

In the matter of

Sh. Rakesh Aggarwal

S/o Late Shri Chander Bhan

R/o- 26/88,

Shakti Nagar,

Delhi-110007                                                …                 Complainant

VERSUS

Parsvnath Developers Limited

G-2, Arunachal Building,

19, Barakhamba Road,

Delhi-110001                                                …                 Opposite Party

 

ORDER

24.01.2024

(Divya Jyoti Jaipuriar)

1. By way of this common order, we will be deciding the admissibility of the both the complaints, the facts of which are identical. Except of the amount of the relief claimed, the relief prayed in both these complaints are also identical.
2. In both these complaints, respective Complainants booked a three bedroom flat in the proposed upcoming project namely “Parsavnath Pleasant” which was coming up in village Dharuhera in Rewari district of Haryana. The said project was launched and promoted by M/s Parsavnath Developers Ltd (OP herein). Upon payment of the initial amount of Rs. 4,50,000/- by respective Complainants, the OP has issued provisional allotment letter on 14.03.2007 to them. Thereafter, additional payments were also made.
3. In CC/4/2024, out of total cost of Rs. 35,17,636.50 for the flat, a total of Rs. 12,75,898.69 was paid by the Complainant to the OP. The flat buyer agreement was also signed between the parties on 04.06.2008.
4. In CC/5/2024, out of total cost of Rs. 34,35,831.00 for the flat, a total of Rs. 13,50,000.00 was paid by the Complainant to the OP. The flat buyer agreement was also signed between the parties on 07.04.2008.
5. In both these complaints, the Complainant alleges that the OP has promised completing construction of the project and delivery of the respective flats within 36 months from the date of booking. However the flats have not been delivered till date. Hence these complaints have been filed seeking a direction to the OP, inter alia, for refunding the amount so paid by the respective Complainants with interest and compensation.
6. We have perused the pleadings, records and has also heard the arguments of Shri Prem Garg, Ld. Advocate for the Complainants on 12.01.2024 and reserved our order on admissibility. The matter was listed today for orders. In the meantime, Ld. Advocate for the Complainants was also permitted to file a brief note within two days. The same was filed on 15.01.2024. However before we could pass the order, Ld. Advocate for the Complainant placed on record another judgment and requested for making some more submissions. Hence, we heard additional arguments of ld. Advocate for the Complainants today in the morning and deferred passing of the order till 3 pm. This order is being passed in the evening after incorporating additional arguments of Ld. Advocate of the Complainant.
7. The Complainants have relied on 10 (a) of the Builder Buyers Agreement signed between the parties to argue that the OP has failed to hand over the possession of the flat in question within the period of 42 months (36 months and grace period of 6 months), hence the OP has been deficient in providing service to the Complainants. The said clause reads as under:

“10 (a) Construction of the Flat is likely to be completed within a period of thirty six (36) months from the date of start of foundation of the particular Tower in which the Flat is located with a grace period of six (06) months, on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from any courts/ authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developer and subject to timely payments by the Flat Buyers. No claim by way of damages/ compensation shall lie against the Developer in case of delay in handing over possession on account of any of such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/ occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement.”

8. When this Commission enquired about the date on which the foundation of the tower of the flats in question was started, it was stated that the Complainant does not have information about the date of start of foundation of the tower. When it was pointed out that the clause 10 (a) of the BBA provides for the maximum period of 42 months from the date of start of foundation of the tower in which the flat is situated, it was argued that having such clause itself was held to be deficiency of service by Hon’ble National Commission. Further it was also argued that the Complainants are not challenging the said clause in the proceedings before this Commission as similar clause has already been held to unfair trade practice by Hon’ble National Commission.
9. In support of his arguments, Ld. Advocate for the Complainant has relied on the judgment of Hon’ble National Commission in the matter of Aditya Laroia vs Parasavnath [2016 SCC Online NCDRC 1489] and Subhash Chander Mahajan vs Parsavnath [2014 SCC Online NCDRC 11] in which Hon’ble National Commission, for delayed possession, has directed the OP to compensate the Complainants there. We have gone through both these judgments, In both these judgments, the admitted position was that there was a delay in completing the construction. It was not the case in these referred cases that the OP has not initiated the construction at all. In the cases in hand, the Complainants have not been able to establish that even the construction of foundation of the tower concerned has commenced. As there is no pleading that the construction has commenced, the above judgments referred by the Complainant have no application in the cases in hand.
10. Ld. Advocate for the Complainant has also referred to the judgment dated 09.01.2019 passed by Hon’ble Delhi State Commission in the matter of Mahendra Nath vs Parsavnath (CC No. 66/2015). In the said judgment too, the construction had already commenced and there was a delay in handing over the possession. However while relying on the judgment of Hon’ble National Commission in the matter of Swarn Talwar vs Unitech [CC No. 347/2014 decided on 14.08.2015], Hon’ble Delhi State Commission has also concluded that the having one sided conditions in the builder buyer agreements constitutes unfair trade practice as defined under the provisions of the Consumer Protection Act, 1986 (since repealed).
11. In the judgment of Hon’ble Delhi State Commission, the construction had commenced and the facts of the case were different from the facts in the cases in hand. However on the aspect of declaring the one sided clauses in builder buyer agreement as “unfair trade practice” was done while hearing consumer complaints under original jurisdiction of the Hon’ble State Commission. The said judgment was with reference to a particular case pending before Hon’ble State Commission.
12. It is also to be noted that under the provisions of the Consumer Protection Act, 2019, this Commission cannot examine the correctness of the terms and conditions of the contract between the parties. Furthermore, the Complainants have not challenged the terms and conditions before us. The Complainant has only alleged that having such term and condition in the builder buyer agreement amounts to unfair trade practice. However, we are of the opinion, that unless there is a challenge to the terms and conditions of the builder buyer agreement, this Commission cannot examine or comment on the correctness of such terms and conditions. At this stage, we would also like to record that under the provisions of the Consumer Protection Act, 2019, the challenge to the term and conditions of any contract on the ground of unfairness can only be challenged before Hon’ble State Commission under section 47 (1) (a) (ii) of the CPA, 2019 or before Hon’ble National Commission under section 58 (1) (a) (ii) of the CPA, 2019. There is no similar provision under section 34 of the CPA, 2019 which determines the jurisdiction of the District Commissions for examining the correctness of the terms and conditions of the builder buyer agreement. Hence, even if the Complainant intends to challenge the terms and conditions on the ground of unfairness, this Commission cannot entertain such challenge.
13. At this stage, it is also recorded that in the morning today, Ld. Advocate for the Complainant has also referred to the judgment dated 19.02.2020 passed by Hon’ble Delhi State Commission in the matter of Prabhjeet Singh vs Parsavnath Developers [CC No. 98/2019], where Hon’ble Delhi State Commission has granted relief to the Complainants as the OP has failed to hand over the possession of the flat. Hon’ble State Commission has also relied on its earlier judgment in Swarn Talwar case (supra). Prabhjeet Singh case (supra) was again examined by Hon’ble Delhi State Commission in its original jurisdiction. Under the CPA, 2019, this Commission lacks original jurisdiction to examine the correctness of the terms and conditions of the builder buyer agreements.
14. In view of the above, we are of the opinion that this Commission lacks jurisdiction to entertain this complaint. Accordingly this complaint is dismissed solely on the ground of lack of jurisdiction.
15. However, in the interest of justice, we grant liberty to the Complainants to approach the Commission/ Court of appropriate jurisdiction for adjudication of the case, if so advised. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Commission/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order. While approaching the Commission/ Court of appropriate jurisdiction, the Complainant may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs PSG industrial Institute [(1995) 3 SCC 583], for explaining the delay in initiating appropriate proceedings, if any and if the same is available to them.
16. Office is directed to supply the copy of this order to the parties as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping copies of the same in the record. Thereafter, file be consigned to the record room.
17. Ordered accordingly.

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member