Delhi

StateCommission

CC/12/248

ASHOK SETHIA - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

17 Mar 2015

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Decision : 17.03.2015

Complaint Case No.248/2012

     

 

Sh. Ashok Sethia

S/o Sh. B.M.Sethia

R/o 5, Janki Shah Road

Hasting

Kolkata-700022                                     ....Complainant    

                                                      

VERSUS

Parsavnath Developers Ltd.

6^th Floor, Arunachal Building

19, Barakhamba Road

New Delhi-110001                          ....Opposite Party

 

CORAM

N P Kaushik, Member (Judicial)

S C Jain, Member

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

2.      To be referred to the reporter or not?

N P Kaushik, Member (Judicial)

Judgment

1.         The case of the complainant is that he booked a plot measuring 500 sq. yds. with Parsavnath Developers Ltd. (in short the OP). On 16.08.2004 an amount of Rs. 2,50,000/- was paid to the OP at the time of booking. The plot in question was located in a township being developed by the OP in Sonepat, Haryana. Next contention of the complainant is that the OP vide its letter dt. 22.12.2005 called upon him to make further payment of Rs. 6.50 Lacs. The complainant paid the said amount on 13.12.2005. OP allotted the plot bearing No. A0120 measuring 490 sq.yds. in a township called Parsavnath City, Sonepat. Complainant was informed that the basic price of the plot was Rs. 17,39,000/-. After adding preferential location charges, external development charges and infrastructure development charges, the total cost would be Rs. 22,39,780/-. Plot buyers’ agreement dt. 21.12.2006 was executed between the parties. The complainant contended that by 31.03.2008 he had paid in all an amount of Rs. 19,78,930/- to the OP. The said amount was approx. 88% of the total payment to be made.
2.         Next submission of the complainant is that vide his letter dt. 15.02.2008 he called upon the OP to send him the site plan of the Parsavnath City at Sonepat, Haryana. Vide his reply dt. 01.03.2008, the OP informed the complainant that due to certain changes in the layout plan the plot allotted to the complainant was residence No. A-0155. Size of the plot was also increased by 8 sq. yds.
3.         The grievance of the complainant is that the OP had received from him preferential location charges and had not allotted him the plot he had opted for. On the contrary the OP had offered him a plot which was not of a rectangular shape. It was having an irregular shape. He, therefore, refused to accept the said plot. Upon this, the complainant asked the OP to refund the money deposited by him. Instead of resolving the dispute the OP started demanding more money.
4.         On the basis of the aforesaid averments the complainant has prayed for the allotment of the plot bearing No. A0120 or any other plot of a rectangular shape. In the event of the failure of the OP to allot the said plot, a prayer for refund of the amount deposited along with interest and compensation @ of Rs. 10 per sq. yd per month has been made. Compensation for harassment to the tune of Rs. 15 Lac has also been sought.
5.         OP in its written version has stated that the controversy in question is required to be adjudicated upon only by the civil court. The contention of the OP is that the factual matrix is of a complex nature and requires detailed evidence. Proceedings before this Commission being summary in nature this Commission cannot do justice to the parties.
6.         Next defence raised by the OP is that there was a ‘global recession’ hitting the economy of real estate companies including the company of the OP. OP has not come out of this recession. OP admitted having entered into the plot buyers’s agreement and also having received the amounts as alleged by the complainant.
7.         In relation to the change of dimension of the plot, the OP referred to clause 5(A) of the agreement entitling him to increase or decrease  10% the area originally allotted. He referred to his letter dt. 25.09.2008 expressing his regrets and informed the complainant that the no plot was available in block-A of the said township. OP has referred to clause 5(b) of the agreement which reads as under:-

“5.(b) In case the Plot gets omitted/deleted from the layout plan or the Promoter is not able to deliver the same to the Buyer for any reason other than those relating to acquisition of the land as mentioned in Clause 6, the Promoter may offer another plot in the Colony or in its vicinity, if available, and if the same is not acceptable to the Buyer, then the Promoter shall be liable only to refund the actual amount received by it with simple interest @ 10% per annum and the Promoter shall not be liable to pay any compensation whatsoever.”

8.         OP contented that in case of non-acceptance of an alternate plot by the complainant, he (OP) is liable to refund the actual amount received by him along with interest @ 10% p.a.
9.         Ld. Counsel for OP Sh. Manuti Ram Chandre has referred to the case of the Ganesh Lal vs Shyam reported as 2013 STPL (Web) 892 SC. The relevant paragraph 6 thereof is reproduced below:-

“It is submitted that failure to handover possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ‘deficiency’ as quoted above. We may, however, note that when it comes to “housing construction”, the same has been specifically covered under the definition of ‘service’ by an amendment inserted by Act 50 of 1993 with effect from 18^th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act”.

10.         A careful perusal of the abovesaid ratio shows that the allotment of a plot when it does not relate to ‘housing construction’, does not fall within the ambit of the expression ‘deficiency’ as defined under section 2(1)(g) of the Consumer Protection Act 1986.
11.         Admittedly the OP was unable to handover the possession of the plot bearing No. A0120 agreed for allotment between the parties. The plot offered to the OP admittedly was not in the A-Block of the township of the OP. The same too was not of a rectangular shape and not preferentially located, for which the complainant had paid preferential location charges.
12.         OP himself relies upon clause 5(b) of the agreement (reproduced above). In the event of the failure of the OP to allot the plot agreed to, OP is liable to refund the amount deposited by the complainant alongwith interest @ 10% p.a.
13.         In view of the discussion above, we are, of the considered opinion that the OP is ‘deficient in service’ as he could not deliver to the complainant the plot as agreed to in terms of the plot buyers’ agreement. The OP is, therefore, directed to pay to the complainant as under:-

1. to refund Rs. 19,78,938/- to the complainant along with interest @ 10% p.a. from the date of deposit till the date of its realisation.
2. to pay to the complainant compensation to the tune of Rs. 2 Lac for harassment, inconvenience, mental agony, anguish and frustration.
3. to pay to the complainant litigation charges to the tune of Rs. 50,000/-

The abovesaid payments shall be made by the OP to the complainant within a period of thirty days from today failing which interest @ 18% shall be charged on the amount accruing after the expiry of the period of thirty days.

14.         The complaint is accordingly disposed of.
15.         Copy of the order be made available to the parties free of costs as per rules and thereafter the file be sent to Records.

(N P Kaushik)

Member (Judicial)

 

 

(S C Jain)