Delhi

StateCommission

CC/11/70

ANURADHA UPPAL - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

21 Mar 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 21.03.2017

Complaint Case No. 70/2011

In the matter of:

Mrs. AnuradhaUppal

W/o Sh. ManojUppal

R/o 22/57-58, Ist Floor

West Patel Nagar

New Delhi                                                           .........Complainant

 

Versus

 

M/s Parsvnath Developers Ltd.

6.  

19, Barakhamba Road

New Delhi                                                           ..........Opposite Party

                                                                  

CORAM

N P KAUSHIK                         -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

Cases relied upon:

 

1. DewanAshwani&Ors. v. Unitech Reliable Projects Pvt. Ltd. IV (2015) CPJ 136 (NC)
2. PuneetMalhotra v. M/s Parsvnath Developers Ltd. II (2015) CPJ 18 (NC)
3. AlkaAggarwal v. Unitech Projects Pvt. Ltd. decided by the Hon’ble National Commission on 16.09.2016

 

Counsels for the Parties:

For the Complainant   : Sh. AmitSandhuja, Advocate

For the Opposite Party :Sh. RakeshBhardwaj, Advocate

 

JUDGMENT

1.         The complainant Smt. AnuradhaUppal admittedly got booked a residential flat in one of the projects of M/s ParsvnathDevelopers Ltd. in Greater Noida in the name of ‘PARSVNATH PRIVILEGE’. Complainant submitted that M/s Parsvnath Developers Ltd. (in short the OP) had pre-launched the aforesaid scheme and gave advertisements in various newspapers extensively. Affinity Solutions Private Limited, 1110 Arunachal Building Barakhamba Road, New Delhi was one of its agents.
2.         Complainant entered into a ‘flat buyers’ agreement dated 21.07.2007 with the OP which is exhibit CW1/1. The total sale consideration of the flat was Rs. 52,86,750/- which was to be paid in installments as per flat buyers’ agreement. Possession of the flat was to be handed over within a period of three years. Complainant made in all a payment of an amount of Rs. 23,24,256/-.
3.         Grievance of the complainant is that the OP failed to carry out the construction of its project and illegally made demands of money from her. A demand for an amount of Rs. 4,74,697/- was made and she was asked to pay the said amount by 09.11.2010. Finding no progress at the site, complainant sent a legal notice dated 23.12.2010 to the OP demanding refund of her money alongwith interest @ 18% p.a.  OP replied to the said notice vide reply dated 10.02.2011. Reply to the notice is as CW1/3. Complainant submitted that the OP was required to handover the possession of the flat within a period of three years. Even after a span of four years, the construction of the project had not even been started. On the basis of the aforesaid facts, the complainant has prayed for the refund of Rs. 23,24,256/- alongwith interest @ 18% per annum. Besides this, compensation to the tune of Rs. 1,00,000/- and litigation charges of Rs. 25,000/- have also been prayed for.
4.         The sole defence raised by the OP is that the complainant was well aware of the process of acquiring of land by the OP in Greater Noida. She made the booking of the flat after fully satisfying herself about the project. Only thereafter she entered into ‘flat buyers’ agreement’. OP contended that the complainant was bound by the terms and conditions of the flat buyers’ agreement.
5.         Next submission of the OP is that the ‘global recession’ hit all the economies of the world including Indian Economy and especially the real estate sector. This had resulted into delay in completion of the project.
6.         OP further submitted that the controversy between him and the complainant involves complex question of law. It cannot be decided in summary jurisdiction. In Civil Courts parties have the full liberty of leading evidence. OP has also referred to a clause in flat buyers’ agreement stipulating that in the event of delay in construction, the complainant would be entitled to compensation @ Rs. 5/- per sq. ft. per month of the super area for the period of delay. Complainant cannot be allowed to wriggle out of the flat buyers’ agreement. OP admitted having received the legal notice dated 23.12.2010 and his reply thereto dated 10.02.2011.
7.         After completion of the pleadings parties filed their respective affidavits towards evidence. Written arguments too were filed.
8.         I have heard the arguments addressed by the counsels for the parties, at length.
9.         Main contention of the OP is that the complainant was well aware of the fact that the land in the project was yet to be acquired when she entered into flat buyers’ agreement. Flat buyers’ agreement was entered into on 21.07.2007. OP filed his written version on 18.10.2011. Even on that date, the flat was not ready for being handed over. Written arguments were filed by the OP on 22.08.2013. It was not the case of the OP that on that date, he was in a position to offer possession of flat. Nothing has come on record to support the contention of the OP that the complainant was aware of the position that the scheme had been launched prior to acquisition of the land for the project. Assuming for the sake of arguments the contention of the OP true, there was no occasion for the OP to enter into flat buyers’ agreement. The said agreement provided for handing over the possession of the flat within a period of thirty six months. In other words, physical possession of the flat was to be handed over before 20.07.2010. OP in its reply to the legal notice stated that the plans of the project had been sanctioned by the authorities concerned. He simply stated that the construction had been started. Clearly it was a case of ‘deficiency in service’.
10. The Hon’ble Supreme Court and the Hon’ble National Commission in a catena of authorities have held that there is a tendency in the builders to feather their own nests. They do not spend the money received from the prospective buyers on the very project for which the buyers made the payments. Due to sheer greed and dishonesty, builders keep on investing the major part of that money in purchase of lands for other projects. This mischief causes delay in completion of any project.
11. Clause regarding grant of compensation @ Rs. 5/- per sq. ft. per monthfor the period of delay is meaningless for the reason that the buyers cannot be fully compensated. The clause is also not applicable for the reason that it comes into play only when the physical possession of the flat is handed over after delay. In the present case the flat is not ready even as on date. Prices of lands and costs of construction have risen by leaps and bounds in the past ten years. I am, therefore, of the considered opinion that the OP is guilty of ‘deficiency in service’. OP is, therefore, directed to pay to the complainant as under:

1. To refund the entire amount of Rs. 23,24,256/- alongwith interest @ 18% p.a. from the date of deposit till the date of its realization.

 

The abovesaid amount shall be paid by the OP to the complainant within a period of sixty days from today failing which it shall carry interest @ 24% p.a. No order as to compensation and litigation charges as the same have been taken care of by the rate of interest.

12. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(N P KAUSHIK)
MEMBER (JUDICIAL)

 

 

 

 

 

 

59746545.