Delhi

StateCommission

CC/11/249

VARUN DEV - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. & ANR. - Opp.Party(s)

07 Jul 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

                                                             Date of Decision: 07.07.2017

Complaint Case No. 249/2011

In the matter of:

Sh. VarunDev

S/o Bir Singh

R/o 2063, KatraRoshanUddola

Kinari Bazar, ChandniChowk

Delhi-110006                                                   ........Complainant

 

Versus

 

1. Parsvnath Developers Ltd.

(Through its Managing Director)

Regd. Office-6^th Floor

Arunachal Building

19, Barakhamba Road

New Delhi-110001

 

2. M/s ParsvnathBuildwell Pvt. Ltd.

Through its Managing Director

Registered Office at:-

Parsvnath Metro Tower

Near Shahdara Metro Station

Shahdara, Delhi-110032                               ..........Opposite Parties

                                                                  

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.         Facts of the complaint are not in dispute. Complainant allured by the advertisement made byParsvnath Developers Ltd. (in short the OP) entered into an agreement for construction of a flat in one of the projects of the OP named “Parsvnath Exotica” in Ghaziabad (UP). A flat measuring 1920 sq. ft. was booked for a total consideration ofRs. 53,36,064/-. Complainant paid the booking amount of Rs. 5,33,606/- (10% of the total cost) on 27.03.2008. Complainant also raised a loan from Reliance Capital to the tune of Rs. 29,95,000/- for the purchase of the aforesaid flat. A tripartite agreement was entered into between the complainant, the OP and the Reliance Capital. Complainant made various payments from time to time to the OPs totaling to an amount of Rs. 46,28,933/-. Last payment was made on 11.05.2008. On repayment of the loan amount, a ‘no dues certificate’ was issued to the complainant by Reliance Capital on 05.02.2010.
2.         Complainant submitted that he visited the site in the year 2009 and was shocked to see that there was no construction activity. Not even the basic foundation has been dug. Except a sample flat, there was nothing at the site. On various visits to the office of OP-1, complainant was getting assurances only. Constructionhad not started even in the year 2011. Frustrated by the inaction on the part of OP-1, complainant wrote a letter dated 14.04.2011 seeking refund of the amount paid by him. He also sent a legal notice dated 28.05.2011 to the OPs. Legal notice too remained un-replied. Finally the complainant filed the present complaint. Complainant has prayed for the refund of the amount of Rs. 46,28,933/- alongwith interest @ 12% p.a. Compensation to the tune of Rs. 20,00,000/- on account of mental agony and harassment has also been sought. Another amount of Rs. 6,57,805/- has been asked for towards damages allegedly suffered by the complainant in paying interest and for other incidental charges to Reliance Capital. Litigation charges of Rs. 1,00,000/- have also been claimed.
3.         OP filed its written version and raised in his defence a plea that due to ‘global recession’, construction activity slowed down various projects of the OP. OP admitted the stipulation in the agreement that construction was to be completed within a period of 36 months from the date of start of the construction. This was also subject to ‘force majeure’ conditions and restrictions from courts, authorities and non-availability of building material.
4.         OP has also relied upon clause 10(c) of the ‘flat buyers agreement’ which is reproduced below:

“In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under clause 10(a), the Developer shall pay to the Buyer compensation @ Rs. 5/- (Rupees Five Only) per Sq. Ft. (Rs. 53.82/- per sq. mtr.) of the super area of the Flat per month for the period of delay…………”

 

5.         Contention of the OP is that the rights of the complainants are well protected under the abovesaid clause of the flat buyers’ agreement and for that reason no further redressal of any grievance is called for. OP submitted that the complainant invested in the said project with his eyes wide open.
6.         Complainant filed his rejoinder reiterating the averments made in the complaint. Parties filed their affidavits towards evidence. Arguments in writing too were filed by the parties.
7.         I have heard at length the arguments addressed by the counsels for the parties.
8.         As referred to above, the facts of the case are not in dispute. Sole defence raised by the OP in not handing over the physical possession of the flat is ‘global recession’. No material has been placed on record by the OP to support his contention that there was a ‘global recession’ which resulted into non-completion of the project. Likewise, the OP has failed to place on record any material in support of his contention that any force majeure condition existed. Nothing on record suggests of any orders from any court of law or any government agency calling upon the OP to stop construction.
9.         Coming to the defenceraised by the OP in relation to the clause providing for compensation @ Rs. 5/- per sq. ft. per month of the super area, Hon’ble Apex Court and the Hon’ble National Commission in a catena of authorities have held that the said clause is meaningless. Builders keep on misusing the hardearned money deposited by the buyers. It was for these reasons that Real Estate (Development & Regulation) Act 2016 had to be enacted by the legislature. In the case of Parsvnath Exotica Resident’s Association v. Parsvnath Developers Ltd. and Ors. (CC/45/2015) decided by the Hon’ble National Commission on 06.05.2016,Hon’ble National Commission observed as under:

“In these circumstances, the allottees cannot be made to wait indefinitely for the possession of the flats booked by them and they are entitled to seek refund of the entire money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them by keeping their money with the opposite party. The money which they paid to the opposite party may have been borrowed or may be their own money. In case, they had taken loans, they would have paid interest on the said loan. In case, they have given their own money to the opposite party, the very same money would have been used by them either by way of a financial investment or in purchase of some other flat the value of which would have appreciated substantially with the passage of time and in which they would also have been able to live.”

 

10. In view of the facts and circumstances of the case and the legal position discussed above, OP is directed to pay to the complainant as under:
    1. to refund to the complainant an amount of Rs. 46,28,933/- alongwith interest @ 12% w.e.f. date of deposit till the date of its realization.
    2. the OPs shall pay compensation to the tune of Rs. 3,00,000/- to the complainant for harassment, inconvenience, frustration and mental agony caused.
    3. OPs to pay litigation charges to the tune of Rs. 25,000/-.

OPs shall pay the abovesaid amounts to the complainant within a period of sixty days from today failing which it shall carry interest @ 18% p.a. after the expiry of the period of sixty days. Complaint is accordingly disposed of.

11. 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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