Delhi

StateCommission

CC/11/356

SANJIV KR. DHIMAN - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

09 Nov 2016

ORDER

IN THE STATE COMMISSION : DELHI

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

 

                                                                Date of Arguments:  09.11.16  

 Date of Decision:16.11.16   

 

Complaint No. 356/11

In the matter of:

Sanjiv Kumar Dhiman

S/o B.R.Dhiman

R/o W2A032, Wellington Estate

Phase-V, Gurgaon                                                           ……..Complainant

 

 

 

                                                          Versus

 

 

Parsvnath Developers Ltd.

Regd. & Corporate Office

6^th Floor, “ARUNACHAL” 19

Barakhamba Road

New Delhi-110001.                                                           …….Respondent   

 

         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 complainant is 2^nd purchaser from Alok Prakash who booked residential flat with OP on 24.06.06 an paid Rs. 5,50,000/- towards registration money.  He was allotted flat in project A2-304, NOIDA, UP.  Flat buyers agreement was executed between Alok Prakash and OP on 16.10.07.  Alok Prakash entered into an agreement transferring the booking in favour of complainant vide agreement dated 20.08.08.  The complainant paid Rs. 5,56,675/- to Alok Prakash. He has paid Rs. 22,44.447/- including Rs. 10,00,000/- taken by him as housing loan from HDFC Bank.   He has been paying EMI to HDFC bank.  He had paid Rs.59,595/- for the year 2008-2009, Rs. 1,05,627/- for the year 2009-2010, Rs.  1,09,377/- for the year 2010-2011 and Rs. 72,294/-till 08.09.2011.  He paid further amounts mentioned in para 8 of the complaint to the OP. It came to the knowledge of the complainant that project has been abandoned by the OP.  He has shown total consideration for Rs. 55,96,750/-.  Hence this complaint for refund of Rs. 22,44,447/- alongwith interest @18% per annum from the date of deposit till the date of realization, Rs. 3,00,000/- a penalty for withholding the amount of complainant, Rs. 1,00,000/- as compensation.

2.        OP filed written statement raising preliminary objection that complainant purchased property from open market and not from OP.  Hence the complaint is not maintainable.  The Hon’ble Supreme Court held in Synco Industries vs. State Bank of Bikaner and Jaipur AIR 2002 SC 568 that cases involving in complex and complicated question of facts and law cannot be decided in summary jurisdiction of consumer forum.  The flat buyer agreement stipulate that in the in construction, complainant would be entitled to compensation @  5 per sq. ft. of super area,  on account of global recession which hit real estate sector project could not be completed.  On merit it admitted the factum of booking and deposit of the amount as claimed by the complainant. event of delay Clause 10A of the agreement stipulated that construction was to be completed within 36 months from the date of commencement of construction of particular block in which flat was located.  Further subject to receipts of all requisite approvals including sanction of building plans, environmental clearances etc. and further subject to force majeure conditions and restraints/restrictions from courts/authorities, non-availability of building material and any circumstances beyond control of developers.  It prayed for dismissal of complaint.

3.        The complainant filed rejoinder. 

4.        OP filed affidavit of Shri Ramesh Chander Gupta, General Manager (CRM) in evidence. Both the parties filed for argument. I have gone through the material on record and heard the arguments.

5.        e iThe counsel for the complainant submitted that plea of force majeure is not tenabln view of decision of National Commission in Puneet Malhotra vs. P.N. Developers Ltd. 2015 (2) CPJ 18.  He also submitted that in view of the decision of National Commission in Satish Pandey vs. Unitech III (2015) 440 second purchaser can file complaint under consumer protection Act.  The only difference is that he purchased the flat with open eyes knowing the factum of delay in construction and so he is entitled to interest from date of purchase by him.

6.        The project was to be completed within 36 months but has not been completed tilldate i.e. after 10 years.  Thus there is deficiency on the part of OP.

7.        Regarding penalty for late possession it may be observed that the same  comes into picture only when possession is being given.  In case like the present one where the possession is not possible, the question of late penalty does not arise.  In this regard reliance can be placed on decision of National Commission in FA 75/14 titled as Reliance Infrastructure vs. Kangaroo Studio decided on 03.09.15.

7.        Regarding rate of interest it may be mentioned that agreement does not provide for any interest by OP.  But on the basis of principles of natural justice, equity and good conscious, some compensation has to be given to the complainant who has been deprived of his money for long period of ten years.  OP cannot be allowed to use the money of the complainant without paying any interest.  It was held by National Commission in Reliance infrastructure supra that interest of 10% is reasonable. In this regard reliance can also be placed on decision of Hon’ble Supreme Court in Ghaziabad Development Authority vs, Balbir Singh II (2004) CPJ 12 where it was held that interest is recompense of 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.

8.        It was held by National Commission in Santosh Johrivs. Unitech that grant of 12% simple interest takes care of additional burden and some monetary compensation for three years from agreement/repurchase.

9.        In first appeal No. 75/14 titled as Reliance Infra Structure vs. Kangaroo Studied decided on 23.09.15 the National Commission held that where complaint is    for refund, interest at the rate of 10% is sufficient.

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

11.      In Appeal No. FA/278/06 titled as DDA vs. Rajan Bhatia decided on 03.05.06, this Commission held that there is no provision for grant of interest.  Interest is given as compensation.  The same view is taken by Principal Bench of this Commission in complaint case No. 291/10 titled as Harmesh Kr. Kanwar vs. Parshvnath Developers Ltd.  decided on 30.11.15.  Thus grant of interest and compensation, both cannot be awarded.   

12.      In view of the above discussion OP is directed to refund of Rs. 22,44,447/- alongwith interest @ 10% per annum from 20.08.08/the date of agreement between complainant and OP till the date of refund.The order will be complied with within 60 days.

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

 

(O.P.GUPTA)

MEMBER (JUDICIAL)