STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 21.08.2020
Date of final hearing: 19.07.2023
Date of pronouncement: 22.08.2023
CONSUMER COMPLAINT NO. 116 OF 2020
IN THE MATTER OF: -
1. Sh. Adarsh Bhatia S/o Sh. K.C. Bhatia, R/o H. No. 43, Sector-8, Panchkula.
2. Smt. Preeti Bhatia W/o Sh. Adarsh Bhatia, R/o H. No. 43, Sector-8, Panchkula. …..Complainants
Versus
M/s Parsvnath Developers (AOP), 6th Floor, “Arunachal”, 19 Barakhamba Road, New Delhi-1110001. …..Opposite Party
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Chaitanya Rai Vashishth, counsel for complainants.
Sh. Satpal Dhamija, counsel for opposite party.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts in complaint are: Complainants booked commercial space No. GF-46, Ground Floor, measuring 66.05 sq. mtr. (711.00 sq. ft.) at Mall Matrix, Mohali, Punjab from Parsvnath Developers (AOP)/OP by paying Rs.11,55,000/- through two cheques viz. (i) cheque No. 303778 dt. 08.03.2006 of Rs.4,00,000/- and (ii) cheque No. 424398 dt. 08.03.2006 of Rs.7,55,000/-. Annexure C-1 is Customer’s Ledger dated 24.01.2007. Installment of Rs.5,24,737.50 was paid vide demand draft No. 006069 dt. 12.08.2006. Copy of receipt dated 17.08.2006 is Annexure C-2 (colly). OP has received Rs.16,79,737.50 (15% of basic sale price) out of total consideration of Rs.1,11,98,250/-. As per provisional allotment letter dated 25.05.2006 (Anneuxre C-3), OP had provisionally allotted the commercial space to complainant. Flat Buyer Agreement dated 11.12.2006 was executed. Copy of letter dated 12.12.2006 and Flat Buyer Agreement is Annexure C-4 (colly).
2. Complainants have relied upon clause -18 of the Agreement which runs as under:-
“The developer shall have the right to raise finance from any bank/financial institutions/Body corporate and for this purpose create equitable mortgage of the plot and/or the proposed built-up area in favour of one or more financial institutions. Notwithstanding the foregoing, the developer shall ensure to have any such charge, if created, located on completion of the complex and, in any case, before transfer/conveyance of the title of the flat of the buyer.”
He received letters dated 26.08.2006, 25.01.2007, 26.02.2007 & 09.03.2007 regarding further payments which are Annexure C-5 (colly). Complainant requested OP through letter (Annexure C-6) dated 16.05.2007 to furnish details of bank that, OP has to tie-up; to which no reply was received. Letter dated 11.06.2007 (Annexure C-7) was received by him stating OP’s ability to cancel the provisional allotment and forfeit earnest money. Complainants sent reply to same, which is Annexure C-8 dated 18.06.2007 and informed the company about mental torture he was facing through letters sent by OP demanding money, without tie-up with any bank. Again OP demanded payments/installments through letters dated 26.07.2007, 18.08.2007, 19.09.2007, 05.10.2007 & 03.11.2007 which are Annexure C-9 (colly). Complainants, called at office of OP where its representative communicated him to ignore the letters and informed him that company will soon inform him about the tie-up. Meantime, while he tried to get loan from some bank/financial institutions, he applied for same with Reliance Capital which was refused with the reason that OP had not obtained necessary approval, till date. He informed it to OP through letter dated 16.11.2007 (Annexure C-10), but no reply was received. OP kept on demanding installments vide letters dated 05.02.2008, 21.04.2008 (Annexure C-11 (colly). Complainant personally visited office of OP where he was told that: company is in final stage of negotiating the deal with HDFC Bank to make financial arrangements for their customers and would be intimated when deal is finalized, which never happened. He again sent letter dated 13.05.2008 (Annexure C-12) to OP to which he received no reply.
3. Complainant again received letter dated 20.11.2010 (Annexure C-13) demanding for installments, even when project was being constructed at slow pace. On contacting OP; it was stated that letter has been sent by mistake; construction is in full swing and once the tie-up with bank is done, he would be intimated; booking shall not be cancelled and payment paid till date will remain safe.
4. It is pleaded that project was nowhere near completion. Complainant informed representative of OP that project was to be completed within 30 months of starting construction. Complainant was communicated by OP that: because of certain lapse on the part of concerned authority in providing certain approvals; the project was stopped for a while and it shall now be completed by mid of year 2013. Complainant waited patiently and wrote representation dated 26.08.2013 (Annexure C-14) asking for refund with interest, as OP had failed miserably to tie-up with any bank for financial support, as agreed/assured by it at the time of booking and project was also nowhere near completion. OP called him at its office and apprised that this delay in construction was not its fault, rather fault is of authorities as mining in Punjab has been banned, because of which sand is not available. OP revealed, for sure, that possession shall be given by end of year 2017 and before that: tie-up shall also be done for sure and he shall be intimated soon, which was never done.
5. On 30.07.2017 complainant visited Mall Matrix and witnessed that no work was in progress and building was completely neglected. He contacted Mr. Satpal-Security Gurad who informed that: project work has stopped since long and entire man force was shifted to new project in Sector-20, Panchkula, where OP is constructing nine (9) towers. On again contacting OP, he was assured that construction will now be completed by 01.09.2018. Eventually, after waiting for long when nothing was done; he sent legal notice dated 03.10.2018 (Annexure C-15) to OP, seeking refund. He did not receive any reply. He visited corporate office of OP in Delhi to personally hand over the legal notice with letter dated 24.11.2018 (Annexure C-16) and got receiving on it. OP stated that it is bound to refund the amount of complainant at 10% simple interest, till date of refund, as per clause 8(b) of Flat Buyer Agreement as neither any bank is ready for tie-up, nor unit is anywhere near completion, but OP is not in a state to refund money, but money received can be adjusted in new project which has attained all approvals. Vide letter dated 28.11.2018 (Annexure C-17) complainant asked for detail of amount to be refunded with interest and calculation and also for proposal raised by OP during meeting, in writing, within 15 days. Vide letter dated 31.12.2018 (Annexure C-18) complainant, to solve the issue gave his offer to adjust the money, to be refunded in plot measuring 500 sq. yards in King City, Rajpura by stating that he is ready to buy this plot for Rs.30.00 lacs and balance amount of Rs.8.00 lacs be refunded to him, to which no reply was ever received.
6. It is pleaded that OP is practicing illegal trade. Flat Buyer Agreement states that construction of complex is likely to be completed within 30 months of commencement of construction which was 14.03.2007 and which is evident from letter of OP dated 26.02.2007. Construction should have been completed by 14.09.2009 but till date (date of filing of complaint) even after almost 12 years, not even structure is ready. OP has committed fraud by deceiving consumers as it has been accepting money from consumers against projects, of which, commissions/approvals have not yet been granted by concerned departments. To save its skin, OP has cleverly added line stating: “on receipt of sanction of building plans and all other approvals” so that authorities can be blamed for delay, always. The date of possession has no where clearly been mentioned in Agreement. Every time, OP assured complainant that it will tie-up with bank, but never gave same it writing. Proposal was also never given in writing. Complainant has suffered great financial loss, mental agony, harassment, torture due to act and conduct of OP for which he is liable to be compensated. Inter-aila, on these pleas; by pleading cause of action, complainant has filed this complaint and sought following directions against OP:-
- To refund of Rs.16,79,737.50/- paid to OP till date.
- To pay interest @ 18% p.a.
- To pay Rs.5.00 lacs as compensation.
- To pay Rs.70,000/- as litigation.
Entire text of complaint is supported by complainants’ duly sworn their separate affidavit dated 18.08.2020.
7. OP has not filed its written statement in defence. Vide order dated 11.05.2022 of this Commission; defence of OP was struck off.
8. Complainants led their evidence. Ex.CW-1/A is the affidavit of Adarsh Bhatia-complainant No. 1 towards his affirmative statement on oath, in which entire text of complaint has been reproduced on solemn affirmation. This affidavit bear signature of Preeti Bhatia as well. Ex.CW-1/2 is the affidavit of Preeti Bhatia-complainant No. 2 towards her affirmative statement on oath, wherein also; entire text of complaint has been reproduced on solemn affirmation of Complainant No.2. This affidavit also bear signature of complainant No. 1-Adarsh Bhatia. Ex.C-1 to Ex.C-19 are the documents relied upon by complainants. Order dated 12.04.2023 of this commission is to the effect that: as defence of opposite party was struck off on 11.05.2022 there is no need to record evidence of opposite party.
9. Learned counsel for complainants while urging has laid thrust, primarily on the fact that despite paying Rs.16,79,737.50/- (15% of basic sale price of Rs.111,98,250/-) to the OP; there has been no meaningful progress in the project of OP towards its ultimate completion. It is urged that completion of project is nowhere in sight, OP will have no time limit to complete the project. It is gross violation of clause Flat Buyer Agreement entered by complainants with OP. As an ancillary argument, it is urged that possession is not likely to be delivered to complainants in near future. There is no justification by OP regarding abnormal delay of nearly 17 years in completion of project. It is urged that at every stage; complainant has been kept in dark by OP which would not only constitutes unfair trade practice on the part of OP, but has also caused harassment and mental agony to him, of intense magnitude and gravity. Hence, as per contention, complainant is entitled to relief, as claimed.
10. Throughout the proceedings of this complaint; OP remained represented by counsel. However, learned counsel for OP could not controvert the above submissions of complainants’ counsel.
11. Since defence of OP has been struck off, therefore, it is held that: evidence led by complainants remained un-rebutted, un-impeached and unchallenged. Complainants booked a commercial space at Mall Matrix Mohali from OP in year 2006. Rs.11,55,000/- was paid on 08.03.2006 through two cheques i.e. Cheque No. 303778 of Rs.4,00,000/- and Cheque No. 424398 of Rs.7,55,000/-. Thereafter complainants has parted with Rs.5,24,737.50 (installment) through demand draft dated 12.08.2006. Documentary evidence in form of customer ledger Ex.C-1 and Ex.C-2 reflects above amount having received by OP way back in year 2006. Total cost of booked area measuring 711 sq. ft is Rs.1,11,98,250/- and complainants had paid approx. 15% of the amount. The evidence in form of duly sworn affidavits of both complainants reflects that complainants were always kept by OP in state of dilemma. Complainants, as per their case, were to secure financial help from bank and they were kept in dark throughout by OP on the pretext that OP would soon arrange a tie-up with bank and apprise complainants, but that had not happened.
12. OP kept on demanding money on pretext of installments’ payment from complainants through letters dated 26.08.2006, 25.01.2007, 26.02.2007, 09.03.2007 (Ex.C-5 Colly). Similarly, identical demands were raised through letters dated 26.07.2007, 18.08.2007, 19.09.2007, 05.10.2007 & 03.11.2007 (Ex.C-9 colly). Letters dated 05.02.2008 & 21.04.2008 (Ex.C-11 colly) and dated 20.11.2010 (Ex.C-13) are also on alike demands. Once, complainants had already expressed their intention to OP to secure financial help from bank, then repeatedly raising continuous demands to pay installments from complainants, through above letters, was unjustified on given facts.
13. Flat Buyer Agreement is Ex.C-4. Clause 13(a) is explicit and unambiguous in itself. It states that construction of complex is likely to be completed within 30 months of the commencement of construction on receipt of sanction of building plan and other approvals. Although there is no specific date regarding commencement of construction mentioned in Clause 13(a) of agreement, yet it is the positive case set up by complainants in para 30 of complaint and also through para 30 of their respective duly sworn affidavits that: from OP’s letter dated 26.02.2007 it is evident that construction should have been commenced on 14.03.2007 and completed by 14.09.2009. Since, there is no challenge raised by OP and no defence/written version has been filed, therefore, above averment has to be accepted as gospel truth.
14. It is the un-rebutted case of complainants that OP had been admitting its lapse and initially revealed to complainants that construction would be completed by Mid of year 2013, then OP made the complainants to understand that there is no fault on its part and it has blamed the authorities, time and again, for lapse and eventually, expressed that possession would be surely given by end of year 2017, in any case by 01.09.2018. All such revelations to complainants were proved farce and bundle of lies and same would belie all tall claims of OP qua its efficiency in completion of project in question. Complainants had been made to suffer for unending period of about 17 years reckoning from 12.08.2006 till decision of this complaint, in flagrant abuse of clause 13(a) of Flat Buyer Agreement (Ex.C-4) by OP, while not strictly adhering to complete the construction, within stipulated time. Obviously, if construction would not be completed, and there being no completion and occupation certificate issued to developer like OP, by concerned authorities; possession of booked space of 711 sq. ft. at Mall Matrix, Mohali cannot be handed over to complainants.
15. In firm opinion of this Commission; the opening lines of clause 13(a) would intrinsically lead to conclusion that completion of construction at project of OP was a time bound phenomenon. Some reasonable period, over and above the agreed period (mentioned in agreement) meant for completion of construction is always justified, considering the level and scale of construction. Naturally, complainants were legally entitled to claim possession of booked space with all basic amenities therein on expiry of above agreed period, of course by paying the entire price of space. Any cause projected to complainants regarding delay in construction of project would not majestically effects their rights, because they are totally unconcerned with such eventualities, which OP might had faced, towards completion of construction. OP had willfully disobeyed Clause 13(a) of Flat Buyer Agreement-Ex.C-4, which has constituted binding force viz.-a-viz. rights of parties to this agreement, so flowing there from.
16. Aspect of Rs.16,79,737.50/-, so received by OP becomes an established/proved fact. In scenario of above, OP cannot be allowed to enrich itself at the cost of complainants, without simultaneously completing construction and handing possession of booked space to complainant as per agreement’s Clause 13(a), opening part of which do provide significant inference/glimpse that time is essence of contract. Palpably, OP has been making its fortunes from complainants’ misfortune. OP has miserably failed to complete construction of space booked by complainants and also as a collorary so flowing, has utterly failed to hand over possession to them. Consequently, in strict legal sense, OP has conceded its majestic failure in this arena. Resultantly, this case unerringly proves grave deficiency in services of OP, towards complainants. Admittedly, complainants’ had parted with huge amount of Rs.16,79,737.50 while booking space and paying one installment, in the project of OP. Act and conduct of OP has clearly demonstrated its attitude of willful neglect and creation of sordid conditions for complainants to face for no fault on their part. Nothing can be more vulnerable situation for complainants, than this. Consequently, in the interest of justice, OP is directed to release/pay back/refund principal amount of Rs.16,79,737.50/- to complainants, who are also entitled to claim interest on the said amount. This being so, it is ordered that amount of Rs.16,79,737.50/- will also carry interest @ 9% per annum from 12.08.2006, till its actual realization of amount. In addition; Rs.2,00,000/- be paid to complainants towards deficiency in services of OP, towards them which has led them to face harassment and encounter mental agony. Complainants are also entitled cost of litigation expenses to the tune of Rs.30,000/-. It is made clear that compensation granted to complainants towards deficiency in service and amount awarded to them towards cost of litigation as mentioned above will not carry any interest. This complaint stands disposed of, being allowed, in above terms.
17. Two months’ time is given to OP to comply with the directions contained in para No. 17 of this order. Else, complainants would be at liberty to adopt appropriate legal recourse, for execution of this order and in that eventuality, interest on principal amount of Rs.16,79,737.50/- will escalate from 9% p.a. to 12% p.a. from 12.08.2006, till its actual realization of amount.
18. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
20. File be consigned to record room.
Date of pronouncement: 22nd August, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
