Chandigarh

DF-II

CC/975/2016

Vikas Nijhawan - Complainant(s)

Versus

Parsvnath Developers Pvt. Ltd., - Opp.Party(s)

Ravinder Pal Singh Adv.

06 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	975/2016
Date of Institution	:	23.11.2016
Date of Decision	:	06.06.2017

 

                                       

                                               

1. Vikas Nijhawan s/o Sh.R.K.Nijhawan r/o H.No.2068, Sector 71, SAS Nagar, Mohali-160071 through his GPA holder Sh.Ravinder Kumar Bajaj s/o Sh.Jiwan Ram Bajaj, r/o Flat No.304, Himalaya GHS, GH-03, Sector 23, Panchkula Haryana.

 

2. Madhulika w/o Sh.Vikas Nijhawan r/o H.No.2068, Sector 71, SAS Nagar, Mohali-160071 through her GPA holder Sh.Ravinder Kumar Bajaj s/o Sh.Jiwan Ram Bajaj, r/o Flat No.304, Himalaya GHS, GH-03, Sector 23, Panchkula Hayrana.

                                ...  Complainant.

Versus

1. Parsvnath Developers Pvt. Ltd., Corporate Office at 6^th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001 through its Managing Director.

 

2. Parsvnath Developers Pvt. Ltd., SCO No.1, 1^st Floor, Sector 26, Chandigarh through its Authorized Signatory.

Now shifted at:

Parsvnath Developers Pvt. Ltd., Parsvnath Royale, Backside GH-105, Sector 20, Panchkula Haryana 134109 through its Authorized Signatory.

…. Opposite Parties.

 

BEFORE:    SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

SHRI RAVINDER SINGH, MEMBER

 

Argued by: Sh.R.P.Singh, Counsel for the complainant

                 Sh.A.S.Khara, Counsel for the OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the case of the complainants is that in the year 2007, the OPs came up with a project in the name and style as Parsvnath Kingciti on GT Road, Rajpur, Punjab.  Allured with the rosy picture presented by the OPs regarding their project, the complainant No.1 applied for 2 BHK residential flat comprising 1050 sq. ft. bearing No.102 in Tower No.5 in their project by depositing the application money of Rs.50000/- through demand draft dated 15.04.2008 against receipt Annexure C-2 The total sale consideration of the unit in question was Rs.14,38,121/- (Rs.13,88,121/- as BSP + Rs.50,000/- as car parking charges).  They further deposited another sum of Rs.6,44,060/- through demand drafts vide different receipts (Annexures C-3 to C-7) with the OPs. Subsequently, a Flat Buyer Agreement was executed between the complainant No.1 and the OPs on 02.01.2009 (Annexure C-8) and as per Clause 10(a) of the said agreement, the construction of the unit is likely to be completed within a period of 36 months, extendable by further 6 months from the date of commencement of the construction on receipt of the sanctioned building plan etc.  It has been averred that  the construction of the project was started in the year 2007 and the OPs have constructed only one tower consisting ten flats located at Ground, first, second, third, fourth floors and thereafter they left the construction of the remaining towers in between after erecting the structure only and the same has not even been started.  It has further been averred that the complainants opted for the construction linked plan as per which they were required to make the payment as per the stages of the construction of the flats at the site. It has further been averred that the complainants paid the amounts as and when demanded by the OPs and even the OPs have charged interest for the delay installment @ 24% p.a.   It has further been averred that on the day of executing the agreement, on the demand of the OPs, he paid an amount of Rs.9,386/- vide DD dated 29.12.2008 against receipt (Annexure C-10). On 02.01.2009, the name of the complainant No.2-Madhulika was added as second allottee and for that purposes the OPs charged a sum of Rs.6941/- vide receipt dated 21.01.2009 (Annexure C-11).  Subsequently, the complainants paid a sum of Rs.50000/- towards car parking charge s vide two DDs dated 31.01.2009 and 02.02.2009 against receipts (Annexure C-12).  Subsequently, they made payment of Rs.1,38,812/- and Rs.1,42,400/- vide DDs dated 10.11.2009 and 12.11.2009 respectively against receipts (Annexure C-13).  However, the OPs changed the flat from T-5/102 to T-6/102 without their consent.  In all, the complainants alleged to have paid a sum of Rs.10,41,599/- i.e. 70% of the total sale consideration but the OPs have failed to complete the construction despite lapse of more than 8 years. It has further been averred that as per Clause 10© of the agreement, the OPs were also liable to pay to the buyer an amount equal to Rs.5/- per sq. ft. per month till the date of possession in case there is delay in construction of the flat.  Finally, the complainants got served a legal notice upon the OPs for the refund of the deposited amount and for payment of agreed compensation.  Alleging that the aforesaid acts amounts to deficiency in service and unfair trade practice on the part of the opposite parties, the complainants have filed the instant Complaint.
2.      The Opposite Parties No.1 & 2  filed their joint written statement. The factual matrix of the case with regard to the booking of the flat  by the complainant No.1, execution of the Flat Buyer Agreement dated 02.09.2009, addition of the name of the complainant No.2 as second allottee vide letter dated 02.01.2009  and option of the construction linked payment plan by the complainants have been admitted by the Ops. It has further been pleaded that due to certain changes in the original layout plan, the numbering of the few flats was changed due to which the flat No.T5-102 allotted to the complainant was changed to Flat No.T6-102 having the built up area of 1050 sq. ft. However, It has further been pleaded that the complainants have failed to clear the outstanding payments despite repeated letters/remainders. It has further been pleaded that the complainants have paid a sum of Rs.10,41,599/- only and an amount of Rs.2,15,617/- is still remains to be paid by them.  It has further been pleaded that for the reasons beyond the control of the OPs, they were unable to complete the construction within the time and the complainants were informed that they shall be compensated in terms of clause 10(c) of the agreement.  All other allegations have been denied being wrong. Pleading that there is no deficiency in service on the part, a prayer for dismissal of the complaint has been made.
3.         The complainant filed rejoinder to the written reply of the Opposite Parties controverting their stand and reiterating their own.
4.         Parties led evidence in support of their contentions.
5.         We have heard the learned counsel for the parties and perused the record carefully.
6.         The booking of the unit in question by the complainant No.1 in the project of the OPs, the addition of the name of the complainant No.2 as second allottee, the execution of the Flat Buyer Agreement dated 02.01.2009 between the complainants and the OPs; the deposit of Rs.10,41,599/- i.e. 75% of the total basic sale price of the unit of Rs.13,88,121/- through different receipts by the complainants by the end of 16.12.2010 with the OPs; and the completion of the construction of the unit in question by September, 2012 are the admitted facts between the parties.
7.         The first plea of the OPs is that the complainants have failed to make the payment of the outstanding dues  of Rs.2,15,617/- despite repeated letters and reminders dated 04.11.2009, 02.12.2010, 22.04.2015, 15.07.2015.  However, the plea of the OPs cannot be accepted for the reason that the complainants have already paid deposited 75% of the total basic price of the unit in question i.e. Rs.10,41,599/- by 16.12.2010.  It may be pertinent to mention here that the OPs sent the first demand letter to the complainant 02.12.2010 and thereafter the next letter was issued by the OPs to the complainant on 22.04.2015 i.e. after more than four years which itself sufficient to conclude that they are not in a position to complete the construction as per the construction linked plan.  Thus, the plea of the OPs that the complainants have failed to pay the outstand dues is not sustainable the same is rejected accordingly.
8.           As regards, the second plea of the OPs that the present complaint involves complicated questions of law and facts and the same is exclusively triable by the Civil Court is concerned because the proceedings under the Forum are summary in nature, is not maintainable in view of the settled principal of law laid down by the Hon’ble Supreme Court of India in the case reported in III (2002) CPJ 8 (SC) titled as Dr. Merchant & Others versus Shrinath Chaturvedi.
9.         The third plea of the OPs is that the delay in construction of the unit is due to impact of the global recession which is beyond the control of the OPs and therefore, they could not deliver the possession of the unit to the complainants and they are making all endeavors to complete the project.   We express our inability to accept this argument of the OPs because as per the admission of the OPs themselves, the construction of the project was to be completed by the September, 2012.  It  is an admitted fact between the parties that the complainants have already made huge payment of Rs.10,41,599/- i.e. 75% of the total basic sale price of the unit in question with the OPs but despite this, the OPs are not in a position to complete the construction of the unit as mentioned in Clause 10(a) of the Flat Buyer’s Agreement executed between the parties  on 02.01.2009 which reads as under:-

 “Construction of the Flat is likely to be completed within a period of thirty six (36) months, extendable by six (06) months from the date of commencement of construction on receipt of sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service Deptt., Civil Aviation Deptt., Traffic Deptt. Pollution Control Deptt., as may be required for commencing and carrying on construction. The construction period shall be 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 Flat Buyers. 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 such reasons and the period of construction shall be deemed to be correspondingly extended. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Tower/Complex shall be treated as the date of completion of the Flat for the purpose of this clause/agreement.”

10.             Admittedly, the construction was not complete. The offer of possession of the unit was not made to the complainants. At the time of arguments, no firm date was given, as to when possession is likely to be delivered to the complainants. It appears that delivery of possession is not in sight, even in near future. Position of the project can easily be depicted from the photographs placed on record by the complainants. Under above circumstances, it can safely be said that by making false promises and not delivering possession of a unit, which was booked as far as back in the year 2008, the OPs are guilty of rendering deficient service. The OPs have already received about 75% of the total basic       sale price, towards the unit, from the complainants and they also might have received from other allottee(s), then it does not lie in their mouth, that they faced extreme financial hardship, due to global meltdown in the market, as far as the project, in question, is concerned.  Even otherwise, the ground of recession in the market/global meltdown would not fall under the definition of force majeure circumstances, for not completing the construction and development work at the site. A change in economic or market circumstances affecting the profitability of a contract or the circumstance, is not regarded as a force majeure condition. Neither any new legislation was enacted nor an existing rule, regulation or order was amended, stopping suspending or delaying the construction/ development work of the project, in which flat(s)/plot(s) were agreed to be sold to the consumers. 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 laborers of the  opposite parties or the contractors engaged by them, 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 construction/development work in the project, within the time stipulated in the Agreement. A similar question fell for determination before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in a case titled as Swaran Talwar & others v. M/s Unitech Limited (along three connected complaints),  2015 (4) CPR 34. The National Commission, in that case, while rejecting the plea of the builder, held as under:-

          “Coming to the pleas that there was recession in the economy and a disruption due to agitation by farmers and acute shortage of labour, etc., the following view taken by us In Satish Kumar Pandey (Supra) is relevant.

        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 parties 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, I 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.”.

11.         The principle of law laid down in the aforesaid case is fully applicable to the facts of the present case. Moreover, the terms of the agreement between the parties do not justify the delay in completion of the project on the aforesaid ground and, therefore, the opposite parties were duty bound to complete the construction as per the terms of the agreement, irrespective of the recession in the market. Here our view is also fortified by the ratio of law laid down by the Hon'ble National Commission in the case titled as Puneet Malhotra versus Parsvnath Developers Ltd, Consumer Complaint No. 232 of 2014, passed on 29.01.2015.  We are of the considered view that the complainants cannot be made to wait for an indefinite period especially after the expiry of the stipulated period of the handing over the possession of the unit, in question, which in the present case stood expired on September, 2012.   Besides this, the OPs who are themselves defaulters cannot be allowed to take the shelter of the terms of the agreement in question, as alleged. The complainants were, thus, right in seeking the refund of the deposited amounts and non-refund thereof on the part of the OPs certainly amounts to deficiency in service, as also indulgence into unfair trade practice.
12.          However, the stand of the complainants that apart from refund of the amount alongwith interest, they are also entitled to compensation for the period of delay in offering possession of the unit, in question, @Rs.5/- per sq. ft. i.e. Rs.5250/- per month, cannot be accepted, as it would also amount to giving double benefit to the complainants i.e. enrichment at the hands of the OPs. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, IV (2010) CPJ 199 (N.C.), the principle of law, laid down, by the National Commission, was to the effect that the compensation should be commensurate with loss and injury, suffered by the complainant. The compensation is required to be fair, just and not unreasonable and arbitrary. The Consumer Foras are not meant to enrich the consumers, at the cost of the service provider, by awarding unfair, unreasonable and highly excessive compensation. Once the complainants are held entitled to refund of the amount deposited alongwith interest and compensation, that will take care of the loss suffered by him, on account of non-delivery of unit, in dispute.
13.         In view of the foregoing discussion, we are of the opinion that the present complaint deserves to be allowed. The same is accordingly allowed. The Opposite Parties are jointly and severally  directed as under:-

1. To refund Rs.10,41,599/- to the complainants alongwith interest @ 15 % per annum from the respective dates of deposit till realization;
2. To pay Rs.50,000/- as compensation for mental agony and harassment caused to the complainants;
3. To pay Rs.10,000/- as costs of litigation. 

This order be complied with by the Opposite Parties jointly and severally, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(ii) above shall also carry penal interest @15% per annum from the date of this order till actual payment besides compliance of directions as mentioned at Sr.No.(i) and (iii) above.

14.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

06.06.2017                                                                       sd/-

(RAJAN DEWAN)

PRESIDENT

 

sd/-

(PRITI MALHOTRA)

MEMBER

 

sd/-

(RAVINDER SINGH)

MEMBER