Delhi

StateCommission

CC/454/2014

M/S GULZ INTERNATIONAL PVT. LTD. - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

29 Nov 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :29.11.2019

Date of Decision : 04.12.2019

COMPLAINT NO.454/2014

In the matter of:

 

M/s. Gulz International Pvt. Ltd.,

Through its Director,

Shri S.S. Gulati,

R/o. 49, Moulsari Avenue,

DLF Phase-3,

• ………Complainant

 

Versus

 

Parsvnath Developers Ltd.,

Through its Managing Director,

Regd office:

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Shahrdara, Delhi-110032.                               …..Opposite pary

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that it booked a residential flat for his own residence in Tower-T-5, Flat no.501 measuring 1855 sq. ft. consisted of 3 bedrooms, 3 toilets, drawing cum dinning, kitchen with utility, balconies, servant room with toilet in  Parsvnath Privilege to be developed on plot no.11, Sector-Pi (Chorosia Estate), Greater Noida. It was given provisional letter dated 23.02.07. Flat buyer agreement dated 27.07.07 was entered into. OP agreed to complete the flat within 36 months from the date of commencement of construction. It opted for payment plan  B i.e. construction linked plan. Construction started in  January, 2008 and was stopped immediately after some time. The complainant made different payments mentioned in para-6 of the complaint total of which comes to Rs.41,26,753.50. The construction of the project is at a standstill. OP vide its letter dated 01.05.13 threatened the complainant of cancellation of the flat, if he fails to pay outstanding  amount alongwith 24% interest. OP issued demand letter dated 27.02.13 for start of 3^rd floor roof slab i.e. after 5 years of commencement of construction.
2. OP vide letters dated 04.04.11 and 13.04.13 demanded interest @24% p.a. amounting to Rs.3,80,694.35. Thus OP is liable to pay interest @18% p.a. amounting to Rs.33,02,848/-. The complainant orally as well as in writing requested OP for status report of the project and the flat. It wrote letters dated 08.07.14 and 25.07.14 demanding for refund of the amount paid by him, on account of enormous delay of construction of the flat. Hence this complaint for directing OP to pay Rs.74,29,601/- alongwith pendentelite and future interest @18% or 24% compounded per annum till actual realisation. It also prayed Rs.10 lakhs towards exemplary damages and cost of litigation.
3. The OP filed WS raising preliminary objection that basic cost of the flat was Rs.54,72,250/- whereas complainant has paid Rs.41,26,754/- including the amount of advance payment. The complaint is not maintainable as complainant is not a consumer. Complainant is a private limited company. It is but obvious that  booking  was done for making investment in real estate for commercial purposes. On account of global recession which hit economies all over the world including Indian economic, more particularly real estate sector, the pace of construction slowed down.   Clause 10-C of the flat buyer agreement provide that in case of delay in construction of flat beyond the period stipulated, subject to force majeure, the developer was to pay compensation @5/- per sq ft. of the super area per month for the period of delay.  As per law laid down by NC in Sahara India Commercial Corporation vs. C. Madhu Babu II (2011) CPJ 3 when there is a written agreement between the parties the Consumer Fora has to consider relief in light of such agreement and it is not open to add or subtract any condition or word thereof. On merits the OP took the same defense.  It pleased that it has always kept its customer informed regarding delay which occurred in the project. It denied liability to pay Rs.10 lakhs towards damages, harassment and mental agony.
4. The complainant filed rejoinder and affidavit of Sudarshan Singh Gulati its Director in evidence. In reply to preliminary objection no.4 it stated that complainant being sole owner of his company, purchased a flat in the name of his company for his own self residence.
5. On the other hand the OP filed affidavit of Shri Ramesh Chander Gupta, General manager, CRM in evidence. In support of his case the OP has filed  written arguments. Written arguments filed by the complainant are not available on record.
6. I have gone through the material on record and heard the arguments. The counsel for complainant relied upon decision of NC in CC no.220/17 titled as Sanjeev Chander Sharma vs. Parsvnath Developers decided on 01.05.18 in which the OP was directed  to refund the entire principal amount with compensation in the form of simple interest @10% p.a. w.e.f. date  of each payment till the date of refund. 
7. The basic question which remains to be decided is whether complainant is a consumer. Apparently the complainant is a company. Though it has been pleaded in the complaint that booking was done for own residence in the name of company. But the question is that company is a artificial person/ juristic person. It is not a natural  person. It cannot reside.
8. The OP took a specific objection that company cannot reside and complainant is not a consumer. The booking was done with a view to invest money and earn profit which would amount to booking for commercial purpose. The complainant tried to explain the same in the rejoinder by stating that complainant being sole owner of the company purchased the flat  in the name of his own company. I fail to understand what the complainant wants to convey. No individual can be owner of a company. Company is always run and managed by its Directors and not by any sole owner. The copy of resolution filed alongwith complaint shows that resolution was passed in meeting of Board of Directors. Affidavit in evidence shows that Shri Sudarshan Singh Gupta is Director and authorised representative of complainant company.
9. The complaint is dismissed on technical ground of not being filed by a consumer. The complainant is given liberty to  file  a suit for recovery in Civil Court after excluding the period spent in the present proceedings as per decision of Hon’ble Supreme Court in Laxmi Engg Works vs. P.S.G. Industrial Institute 1995 SCC (3) 583.
10. Copy of the order be sent to both the parties free of cost.
11. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

•