Delhi

StateCommission

CC/11/405

PRAFULL VINOD & ANR.. - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

21 Jul 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 21.07.2017

Complaint Case No. 405/2011

In the matter of:

1. Sh. Prafull Vinod

S/o Ram Vinod Shahi

R/o Shahi Apartment

GobarShahi Chowk

Muzaffarpur, Bihar-842001

 

2. Smt. Savita Sharma

W/s Prafull Vinod

R/o C/o B K Sharma

New Krishna Bhawan Club Road

Mittaanpura, Muzaffarpur

Bihar-842001                                             ........Complainants

 

Versus

 

            Parsvnath Developers Ltd.

(Through its Managing Director)

Regd. Office-6^th Floor

Arunachal Building

19, Barakhamba Road

New Delhi-110001                                            ..........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)

 

JUDGMENT

1.         Complainant-1 Sh. Prafull Vinod and Complainant no. 2 Smt. Savita Sharma who happened to be the husband and wife respectively admittedly booked a flat in one of the projects of M/s Parsvnath Developers Ltd. (in short the OP) named as Parsvnath Palacia in Greater Noida (UP). The flat measured 1710 sq. ft.  Complainants paid an amount of Rs. 4,50,000/- as the booking amount vide cheque dated 27.06.2008. The flat buyers’ agreement dated 11.10.2008 was entered into between the parties. The total sale consideration of the flat was Rs. 56,43,000/-. Complainant had admittedly paid an amount of Rs. 21,91,300/-. Physical possession of the flat was to be given within a period of thirty six months as per clause 10(a) of the agreement subject to force majeure, restrictions from courts/authority.
2.         Contention of the complainant is that they made repeated telephonic enquiries from the OP in relation to the status of the project. They made several personal visits as well. E-mails dated 10.04.2011, 11.04.2011, 12.04.2011, 23.04.2011, 09.06.2011, 10.06.2011, 06.07.2011 and 26.07.2011 were also sent. OP had been avoiding reply and kept on delaying the matter on one or the other pretext. Vide its letter dated 09.07.2010, OP admitted having not completed the project on time. Vide same letter, OP stated that due to slow down in the real estate section and the global economic meltdown he could not complete the construction of the project. OP referred to clause 10(c) of the flat buyers’ agreement vide which the buyer was to be compensated for delay by way of penalty. OP further promised to complete the construction by June 2012. Submission of the complainant is that he contacted the OP in November 2011 enquiring the status of his flat. OP did not give any satisfactory reply. Complainant filed the present complaint seeking refund of the entire money along with interest @ 24% p.a. Compensation to the tune of Rs. 42,750/- @ Rs. 5/- per sq. ft. has also been prayed for. Besides this, damages to the tune of Rs. 8,00,000/- have also been claimed.
3.         Sole defence raised by the OP is that as per clause 10(c) of the flat buyers’ agreement the complainants are entitled to compensation @ Rs. 5/- per sq. ft. of the super area per month for the period of delay. Contention of the OP is that the complainant is bound by the terms and conditions of the agreement. OP also contended that due to global recession he failed to complete the project.
4.         After completion of the pleadings parties placed on record their affidavits towards evidence. Written arguments too have been filed.
5.         I have heard at length the arguments addressed by the counsel for the complainant Sh. Saurabh Jain Advocate and Counsel for the OP Sh. T P Chauhan Advocate.
6.         Clause 10(c) of the flat buyers agreement on which the OP has placed reliance is reproduced below:
7.  

In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under sub-clause (a) above, the Developer shall pay to the Buyer compensation @ Rs. 53.82 (Rupees Fifty Three and Paise eighty two only) per sq. mtr or @ 5/- per sq. ft. of the super area of the Flat per month for the period of delay.”

 

 

7.         Hon’ble National Commission in the case of Puneet Malhotra & Ors. v. Parsvnath Developers Ltd. II (2015) CPJ 18 (NC) held that such a clause is attracted only in a case where construction of the flat is delayed but despite delay, the buyer accepts possession of the flat from the seller. In such a case buyer has to pay the agreed holding charges to the seller and the seller is required to pay the agreed compensation on account of delay in construction. The said clause is not applicable in case where the buyer on account of delay on the part of the seller chooses seeking refund of the amount paid.
8.         Coming to the case in hand the complainants have clearly sought refund of the amount paid by them alongwith interest. In view of the findings of the Hon’ble National Commission in the case of Puneet Malhotra (supra) the plea raised by the OP does not help him.
9.         Coming to the plea that there was recession in the economy leading to the failure to complete the project, the observation of the Hon’ble National Commission in the case of Satish Kumar Pandey & Anr. v. Unitech Ltd., III (2015) CPJ 440 (NC) is reproduced below:

“Neither any new legislation was enacted nor an existing rule, regulation or order was amended stopping suspending or delaying the construction of the complex in which apartments were agreed to be sold to the complainants. There is no allegation of any lock-out or strike by the labour at the site of the project. There is no allegation of any slow-down having been resorted to by the labourers of the opposite party or the contractors engaged by it at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the completion of the project within the time stipulated in the Buyers Agreement. It was contended by the counsel for the OP that the expression ‘slow down’ would include economic slow-down or recession in the Real Estate sector. I, however, find no merit in this contention. The word ‘slow down’ having been used alongwith the words lock-out and strike, it has to be read ejusdem generis with the words lock-out and strike and therefore, can mean only a slow down if resorted by the labourers engaged in construction of the project.”

10. Hon’ble Apex Court and the Hon’ble National Commission in a catena of authorities observed that the builders have exploited the gullible buyers by investing their hard earned money in the projects other than the project the buyers applied for. It was for these reasons that the Real Estate Regulation Act had to be passed by the legislature.
11. In view of the discussion above, the complaint is allowed. OP is directed to refund to the complainant the amount of Rs. 21,91,300/- alongwith interest @ 18% p.a. from the date of its deposit till the date of its realization. In the event of failure of the OP to refund the aforesaid amount within the period of sixty days from today interest @ 24% p.a. shall be leviable. Complaint is accordingly disposed of.
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)

 

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