Delhi

StateCommission

CC/11/401

NAVENDUE RAI - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

17 Oct 2016

ORDER

IN THE STATE COMMISSION : DELHI

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

                                                Date of Arguments: 17.10.16

Date of Decision:    21.10.16

Complaint No. 401/2011

In the matter of:

Shri Navendue Rai

Permanent address

HIG 31/2,

Kabir Nagar, Durga Kund

Varanasi-221005

 

PRESENT ADDRESS:

 

C/o Engr. D.K.Singh

Flat No. 140, Canara Apartment

Sector-13, Rohini, Delhi-85                                                   .........Complainant

                                                            Vs.

 

1.  Mr. Parsvnath Developers Ltd.,

Regd. Office: 6^th Floor,

Arunachal Building,

19, Barakhamba Road,

New Delhi-110001

 

2. The Chief Manager,

State Bank of TRAVANCORE,

Parliament Street Branch,

New Delhi-110001                                                        .....Opposite Parties

 

CORAM

                                                           

O.P. Gupta, 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

 

 

JUDGEMENT

            The case of the complainant is that he booked flat No. A-2-702, Parasvnath Palacia Apartment Scheme at Greter Noida which was being developed by OP No. 1.  A tripartite agreement was entered into between bank/OP No.2, OP No. 1 and complainant vide which OP No. 2 advanced loan.  Booking of the flat was done on 15.04.07.  The construction was to be completed within 36 months i.e. by August 2010. He paid Rs. 21,62,540/- within the period called for by OP No. 1.  He has lost Rs. 3,34,000/- by way of interest which he paid to bank.  Vide letter dated 09.07.2010 OP advised that they proposed to complete the project by June 2012.  He visited the site and was disturbed to find that there was neither progress nor any construction activities was seen.  Hence this complaint for directing the OP to release full amount received so far without any delay with compensation as per their own offer inpara 10A as also the interest amount paid to OP No. 2 , direct OPs to pay cost of litigation and also compensation for mental torture.

2.         OP No. 1 filed WS raising preliminary objection that complainant intended not to make further payment,  that is why he has filed the present complaint.  He is resident of Delhi and merely made an investment to earn profit on the property booked.  Instant matter involves complicated questions of law which needs to be proved by adding oral or documentary evidence.  In proceedings before consumer courts which are essentially summary in nature, the same cannot be gone into.  On merits it stated that on account of global recession which hit economy all over the world, more particularly real estate sector, pace of construction slowed down.  Clause 10A of the agreement stipulated that construction was to be completed within period of 36 months from date of commencement of construction of particular block in which flat is located, further subject to receipt of all requisite approvals including sanction of building  plan, environmental clearance and subject to force majure, in case of delay it was to pay compensation @ 5/- per sq. ft. of super area per month. Flat Buyer Agreement was sent  to the complainant for signature which he has not returned.  Right of the complainant is protected by clause 10(1) of the flat buyer agreement providing for compensation for delay in delivery of possession.

3.         OP No. 2 also filed a formal reply.  The complainant filed rejoinder to WS of OP 1 and his evidence by affidavit.

4. On the other hand OP 1 filed affidavit of Shri Anup Mittal , Additional General Manager, Commercial.  OP 2 also filed affidavit of Shri Kalyan Singh Meena, Deputy Manager.

5. Complainant filed written arguments. Complainant filed additional  submission also.  I have gone through the material on record and heard the arguments. During arguments the counsel for the complainant submitted that complainant is not interested in flat as there is no possibility of the same being given in near future. So he is interested in refund alongwith interest @ 18% per annum.  In support of his contention regarding rate of interest he relied upon decision of National Commission in consumer complaint No. 144/11 titled as Subhash Chander Mahajan vs. Parsvanath decided on 05.05.14 in which interest was allowed @ 18%  subject to refund being made within 90 days.  After expiry of 90 days amount was to carry interest @ 24% per annum.  Besides that complainant was granted compensation of Rs. 7,00,000/- @ 1,00,000/- per year and Rs. 2,00,000/- as cost of litigation.  He also relied upon decision of National Commission in consumer complaint No. 232/14 titled as Puneet Malhotra vs. Parsvnath decided on 29.01.15 in which interest was granted @ 18% per annum which comprised of 8% per annum on account of appreciation in the land value and increase in the cost of construction, 10% on account of interest.   Simultaneously it was observed that compensation was included in interest and no separate compensation was granted.

6.         On the other hand counsel for OP submitted that copy of the tripartite agreement dated 02.07.08 filed by OP 2 alonwith its reply as Annexure 3, provides in clause 5 that in the event of failure to complete the project, builder shall pay money so received by it from borrower to State Bank of Tranvancore directly.  On the basis of this he wanted me to hold that only principal amount is liable to be refunded and that too to the bank.  No interest is payable.

7.         I am unable to appreciate the argument of the counsel for OP 1.  The bank might have agreed to accept the particular amount from the builder and interest from the borrower i.e. complainant.  It cannot be that bank would not charge any interest either  form developer or from borrower. Thus, at the most it can be said that builder is liable to pay principal amount to the bank, borrower is liable to pay interest to the bank which he can recover from builder. The counsel for OP 1 submitted that as per record OP 1 is liable to pay Rs. 10,43,140/- to bank and Rs. 11,33,454.31P to complainant.  In all it is  liable to pay Rs. 21,76,644.31/-.

 8.        As regards rate of interest it may be observed that rate of interest is to be decided on facts of each case.  There can be no hard and fast criteria.  It was so held by Hon’ble Supreme Court in Ghaziabad Development Authority vs, Baljeet Singh II  CPJ 12.  It was held that interest is recovered for loss or injury.  Loss of rent paid by the complainant during the period can be considered while granting interest.  In the present case complainant has not pleaded that he paid any rent.

9.         It was held by National Commission in Santosh Johri vs. Unitech that grant of 12% simple interest takes care of additional burden and some monetary compensation for suffering.

10.       In FA No. 75/14 titled as Reliance Infrastructure vs. Kangaroo Studio decided on 23.09.15 the National Commission has held that where complaint is for refund,  interest @ agreed rate of 10% is sufficient. In the present case the agreement does not contain any rate of interest payable  by the builder to the complainant.  I do not find any weight in the plea of the complainant that since builder was entitled to charge interest @ 24% per annum, he is entitled to receive same interest.

11.       In consumer complaint No. 19/11 titled Surender Singh Atwal vs. Parasvnath Developers decided on 11.05.16 National Commission granted interest @ 10% per annum.

12.       It may be observed that the decision of the National Commission in Puneet Malhtra vs. Parsvnath Developers Supra does not advance the case of the complainant because the break up of the interest shows that it comprised 8% per annum on account of appreciation in the land value. By now it is well established that in the recent past there has been no appreciation in land value.  Rather there has been slump in the market and prices have gone down by about 25% to 30%.  That is why most of the persons intending to take flat are coming forward to seek refund and not to take possession of the unit booked by them. Thus the interest part remained 10% only.

 10.      As a result of the above discussion I find that interest @ 12% per annum would meet ends of justice.  The same would take care of compensation and no separate compensation is required. Accordingly OP 1 is directed to pay Rs. 10,43,190/- to OP 2,  to pay Rs. 11,33,454.31 to the complainant alongwith interest on total amount i.e. the amount payable to bank as well as amount payable to complainant @ 12% per annum from the date of deposit till the date of refund. Order will be complied within two months.

            Copy of this order be sent to both the parties free of cost.

 

(O.P.GUPTA)

MEMBER(JUDICIAL)