Delhi

StateCommission

CC/1008/2015

SH. MANOJ KUMAR VIJ - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

17 Nov 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

Date of Decision:17.11.2018

 

Complaint Case No.1008/2015

 

 

Sh. Manoj Kumar Vij,

R/o 110A, Cycle Market,

Jhandewalan,

New Delhi-110055.

                                                              …Complainant

 

Versus

 

Parsvnath Developers Ltd.,

Through its Directors,

Corporate & Regd. Office:

6^th Floor, Arunachal Building,

19, Barakhamba Road,

New Delhi-110001.

                                                  ….Opposite Party

 

CORAM

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

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

2. To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. Complainant, Shri Manoj Kumar Vij, has filed the present complaint against OP stating therein that on 5.9.05, he had booked a Villa with OP by making payment of registration amount of Rs.5 lacs by way of cheque drawn on Central Bank of India, New Delhi.  On receipt of aforesaid payment, complainant was allotted a Villa No.A-530 at Parsvnath City, Sonepat (Haryana) vide letter dated 31.12.07. 
2. It is stated that complainant had made payment from time to time as per schedule and in all had deposited Rs.27,91,873/- with OP against receipt and acknowledged.  It is stated that after receiving the substantial amount, OP changed the Villa from A-530 to A-538 on 20.3.08.  A Villa Buyer Agreement (in short, the “Agreement”) was also entered into between the parties wherein as per clause 8(a), OP had agreed to complete the construction of the Villa within a period of 18 months from the date of commencement of construction with extended period of 6 months.  It is stated that as per the aforesaid Agreement, it was agreed that OP shall pay to the complainant compensation @ Rs.53.82 per sq.mt. or @ Rs.5/- per sq.ft. of the super area of Villa per month for the delay period.  It is stated that after passing of number of years, OP has not handed over the possession nor the said Villa has been constructed.  It is stated that OP has also not offered agreed delay compensation. The complainant had also sent legal notice but no response was given by OP.  It is stated that OP has indulged in unfair trade practice. The complainant has filed the complaint by making following prayers:

“A. To return the whole amount of the complainant i.e. Rs.27,91,873/- (Rupees Twenty Seven Lacs Ninety One Thousand Eight Hundred Seventy Three only) along with interest @ 18% per annum and

 

B. To pay compensation @ Rs.53.82/- per sq.meter or @ Rs.5/- per sq.ft. of the super area of the Villa per month for the period of delay in handing over the Villa.

 

C. Cost of the complaint may also be passed in favour of the complaint and against the respondent.

 

D. Any other relief which this Hon’ble Court deems fit and proper may also be passed in favour of the complainant and against the respondent.”

 

3. The complaint is opposed by OP by filing written statement wherein preliminary objection is raised that the complainant is an investor for gaining profits from the Villa and is not a ‘consumer’.  It is alleged that the present complaint involves complicated questions of facts and law which requires detail evidence and same cannot be examined in the summary procedure before this Commission.
4. On merits, it is admitted that the Villa in question was booked by the complainant in its project, namely, “Parsvnath City” Sonepat, Haryana.  The amount deposited by complainant of Rs.27,91,873/- is also admitted.  It is stated that on account of global recession which had hit economies all over the world including the Indian economy, the real estate sector was badly affected due to which pace of construction was slow down.  It is alleged that due to said reason, the delay has been caused in the project to complete the construction in time.   It is stated that complainant is fully aware that the Agreement between the parties provides the delay compensation @ Rs.5/- per sq.ft. per month of the super area of the Villa for the period of delay as such complainant is not entitled for any relief.
5. Replication is filed by the complainant wherein preliminary objections raised are denied.  Complainant has reiterated the averments made in the complaint.
6. Both the parties have filed evidence in the form of affidavits.
7. The complainant has filed his own affidavit in the evidence wherein contents of the complaint case are reiterated on oath. The complainant has proved on record copy of cheque and copy of advance registration form, Ex-CW-1/1 & CW-1/2; a letter dated 31.12.07 of OP, Ex-CW-1/2 informing the complainant about allotment of a Villa No. A-530 at Parsvnath City, Sonepat (Haryana); copy of cheque bearing No.178306 dated 15.9.05 amounting to Rs.2,50,000/- along with receipts are Ex-CW-1/3 (Colly); Villa Buyers Agreement is Ex-CW-1/4; copy of legal notice Ex-CW-1/5, Regd. A.D. receipt is Ex-CW-1/6; courier receipt is Ex-CW-1/7 and the POD are Ex-CW-1/8 & CW-1/9.

8.           On behalf of OP, affidavit of Shri Madan Lal Dogra, S/o Shri M.R. Dogra, Deputy General Manager (CRM) has been filed. He has reproduced the contents of written statement on oath.  He has also exhibited copy of Board Resolution as Ex-OP-1.  Copy of letter dated 30.12.06 informing the provisional allotment of Villa No.A-530 as Ex-OP-2, copy of Agreement dated 20.3.08 as Ex-OP-3.

9.           We have heard Counsel for the parties and perused the material on record.

10.         Ld. Counsel for complainant has contended that OP has failed to fulfill its commitment and did not handover the possession and did not complete the construction within the agreed period.  It is contended that there is no likelihood of construction being completed in the near future as such complainant has no option but to seek the refund of money.  It is further contended that the extension of time is permissible as per grounds mentioned in Clause 8(a) of the Agreement i.e. subject to force majeure and restraints/restrictions from any courts/authorities and any circumstances, beyond the control of OP. On the plea of global recession, extension of time is not permissible as the same does not come within the purview of the Agreement. Further nothing has been placed on record by OP to substantiate that due to recession in the market, OP has not been in a position to complete the project.  It is submitted that frivolous stand has been taken by OP in this regard and OP be directed to refund the amount of Rs.27,91,873/- with interest along with compensation and cost of litigation.

11.         On the other hand, Ld Counsel for OP has argued that due to the phenomenon of global recession which affected the real estate sector in India, OP could not complete the construction.  It is contended that in the event of any delay, the rights of complainant are duly protected under Clause 8© of the Villa Buyer’s Agreement.    

12.         As regards preliminary objection that the complainant is an investor, nothing on record is placed by OP to substantiate the same.  It is not the case of the OP that complainant is engaged in the business of purchasing and selling of Villas on regular basis and is making profits.  OP has levelled bald allegation.  The objection raised in this regard is rejected.  Reliance is placed on the judgement of  Kavita Ahuja vs Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors., 1 (2016) CPJ 31 (NC).

13.         OP has also failed to show as to how the complicated questions of facts and law are involved in case.  The objection raised in this regard is also rejected.                  

14.         It is admitted position that the complainant has booked a Villa with OP and initially Villa No.A-530 at Parsvnath City, Sonepat (Haryana) was allotted to him vide letter dated 31.12.07. Subsequently the same was changed vide letter dated 20.3.08 to A-538.  It is also admitted position that the complainant had deposited Rs.27,91,873/- with OP. It is also admitted position that as per the Agreement between the parties, the agreed period of construction was 18 months from the date of commencement of construction with extended period of 6 months.  The relevant clause of the Agreement is as under:

“8(a) The Developer shall endeavor to complete construction of the Villa within a period of eighteen (18) months from the commencement of construction with extended period of six (6) months, after receipt of sanction of building plans/revised building plans and other approvals of concerned authorities as may be required subject to force majeure, restraints or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developer and subject to timely payments by the Buyer.  No claim by way of damages/compensation shall lie against the Developer in case of delay in handing over possession on account of any of the said reasons and the Developer shall be entitled to reasonable extension of time for completion of the Villa.”

 

15.         It is also admitted position that OP has failed to complete the construction within the period of 18 months + extended period of 6 months as has been provided under the Agreement.  The Agreement is dated  20.3.08.  The payment was taken from the complainant from September, 2005 to October, 2009. The construction is not complete even as on date.  The stand of the OP is that construction could not be completed on account of global recession.  The agreed terms and conditions between the parties do not justify the delay in the completion of the project on the aforesaid ground.  It is not the case of the OP that construction could not be completed due to the circumstances beyond the control of the OP.  There is substantial delay in the construction of the Villa. Even after receipt of money from the complainant, Villa is not near completion.  The same amounts to deficiency in service on the part of the OP.  In these circumstances, complainant is justified in seeking refund of money which he has paid to OP.  The complainant is seeking refund of amount with 18% interest.  OP is relying on Clause 8 (c) of the Agreement and has contended that the complainant is not entitle to interest at the rate claimed by him and the complainant is fully protected by way of compensation @ Rs.5/- per sq.ft. as per Clause 8 (c) of the Agreement.

16.         Aforesaid clause is not applicable to the facts and circumstances of the case as the Villa is nowhere near completion. Even OP today is not in a position to hand over the possession. Further as per terms and conditions of the Agreement, in case there is any delay on the part of the complainant in making the payment, OP has right to recover interest from the Buyer @ 24% per annum.  In such circumstances, such a clause amounts to unfair trade practice on the part of the OP. If there is delay on the part of the Buyer in making the payment, he has to pay interest @ 24% to Seller and if there is delay on the part of the OP, he will be compensated @ Rs.5/- per sq.ft. of the super area.  In the present case, OP has received payment of Rs.27,91,873/- in the year 2009 and 8 years have passed, nothing has been informed to him about the construction.  The hard earned money of complainant has been retained by OP which has caused mental agony and harassment to complainant.

17.         In the facts and circumstances of the case, the present complaint is allowed with the directions to OP to refund the amount of Rs.27,91,873/- which the complainant has deposited with OP along with interest @ 12% per annum from the date of deposit till the date of refund.  Complainant shall also be entitled to litigation cost of Rs.25,000/-.

18.         The aforesaid payment be made to the complainant by the OP within 30 days from the date of receipt of this order.

19.         Complaint stands disposed of accordingly.

20.         A copy of this order as per statutory requirements be sent to the parties free of charge.  Thereafter the file be consigned to record room.

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member