DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 260 of 3.11.2015
Decided on: 27.4.2017
Satish Kumar Goyal S/o Sh.Ram Goyal, H.No.63, Gulmohar Avenue, Dhakoli, District Mohali.
…………...Complainant
Versus
1. Parsavnath Developers Ltd., Regd. and Corporate Office, 6th floor, “Arunachal”, 19, Barakhamba Road, New Delhi-110001 through its Managing Director/Director/Authorized Signatory.
2. Parsavnath Developers Ltd.,Parsavnath Castle, Parsavnath Kingciti, GT Road, Rajpura, Punjab through its Managing Director/Director/Authorized Signatory.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Sameer Gupta,Adv.counsel for complainant.
Sh.Dhiraj Puri,Adv.counsel for opposite parties.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh. Satish Kumar Goyal has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs :-
- To refund Rs.7,87,563.85 alongwith interest @15% per annum, from the date of deposit till payment;
- To pay Rs.5/- per sq.ft., per month as per clause 10C of the buyers Agreement dated 31.12.2007, in case of delay in offering physical possession of flat;
- To pay Rs.5,00,000/- as compensation for causing mental tension and physical harassment;
- To pay Rs.33,000/- as costs of litigation
The Forum may also grant any other relief, if it deem fit.
2. In brief, the case of the complainant is that the OPs advertised for construction and selling of flats at village Dahrian, Tehsil Rajpura, District Patiala. In the month of July,2007, the complainant contacted the OPs, for purchasing the flat. It is also informed to him that the work for construction of flats and further completion of basis amenities were at full swing. After getting full assurance from the O.Ps, he decided to purchase the flat and paid Rs.50,000/- as booking amount on 1.8.2007.The O.Ps. issued letter dated 4.8.2007 with regard to the issuance of the booking receipt no.S0055719 dated 1.8.2007. Vide letter dated 8.8.2007, the O.Ps. demanded another sum of Rs.72,402/- to be paid upto 31.8.2007. He paid the above said amount on 31.8.2007, in response to which the OPs issued letter dated 7.9.2007 alongwith receipt dated 6.9.2007.It is averred that the OPs did not provide any agreement and schedule for the payment of the further amount.In this regard, he wrote letter dated 10.12.2007 to the OPs, where after they provided Flat Buyers Agreement dated 31.12.2007, wherein it was mentioned that ops No.1&2 had obtained license alongwith its associate company “Home Life Real Estate Pvt. Ltd.” i.e. OP no.3 for the promotion and development of a residential colony in an around village Dahrian, Tehsil Rajpura, District Patiala, Punjab.It was mentioned in clause 1 of the agreement that developer agreed to sell and the buyer agreed to purchase a constructed residential flat bearing No.T3-202 on second floor in Tower No.T3 having an approx. 1050 sq. ft (equivalent to 97.54 sq.mtrs) of area consisting of 2 bedrooms, drawing/dining /kitchen 2 toilets, in the complex named “Parsvnath Castle”, Under clause 2(a) , the basis price of the flat has been mentioned as Rs.12,24,020. In the clause 4(a) of the agreement, it is mentioned that buyer has paid a sum of Rs.1,22,402/- towards basis price as on date of signing of the agreement and further agreed to pay the remaining price of the flat. As per clause 10(a) the construction of the flat was likely to be completed within a period of 36 months, extendable by six months. In this way, the OPs have to provided the physical possession upto 31.12.2010 from the date of agreement and with 6 months upto June,2011. Under clause 10 ( C) of the agreement, in case of delay in construction of the flat, the developer shall pay Rs.53.80 per sq.mtr or @ Rs.5/- per sq. fit of the super area of the flat per month to the buyer for the period of delay. It is averred that he opted for plan-B, Construction linked payment plan for making further payment. He received letter dated 21.1.2008 from the OPs for making the payment of 2nd installment of Rs.1,22,402/- and also for the payment of Rs.50,000 for the open car parking. He made the payment of Rs.1,72,402 vide cheque dated 2.2.2008, in response to which the OPs issued letter dated 7.2.2008.He made further payment of Rs.1,22,402 vide cheque dated 23.10.2008. He also made the payment of Rs.50,000/- vide cheque dated 8.5.2009 in response to which the OPs issued letter dated 11.5.2009. Rs.1,94,804/- were paid vide cheque dated 18.12.2010 and the OPs issued letter dated 29.12.2010 in this regard. Thereafter, he received letter dated 11.1.2011 for the payment of Rs.1,22,402/-on account of construction of complex service. The OPs further demanded Rs.3,1151.85 on account of service tax. He made the payment of Rs.1,25,553/- vide cheque dated 25.1.2011 in response to which the OPs issued letter dated 3.1.2011.Thereafter no letter was issued by the OPs. The complainant in total made the payment of Rs.7,87,563.85 to the OPs but till date they have completed the construction of the flat and he was waiting for the possession of the flat since 2011. He also made enquires for the non delivery of the physical possession of the flat by the OPs. He also wrote letter dated 5.10.2015 asking them about the delivery of possession of flat but to no effect. He also made number of requests to the OPs for the delivery of physical possession of the flat to him but all in vain. Thus there is deficiency of service on the part of the OPs for which he is suffering from mental agony, physical harassment as well as monetary loss.
3. On being put to notice, the OPs appeared and filed the written version taking preliminary objections that no cause of action has arisen in favor of the complainant and that this Forum has no jurisdiction to entertain the complaint. On merits it is submitted that the complainant approached the OPs for booking of the flat and executed the Flat Buyer Agreement on 31.12.2007 after reading an satisfying himself with all the terms and conditions and thereafter he was allotted the flat in question. It is stated that according to Clause 10 (a) of the Flat Buyer Agreement , executed between the parties, date of final construction of the flat of which the possession was to be delivered was not fixed and it is clearly mentioned in the said clause that the time is not the essence of the contract. It is also submitted that the complainant was well aware that the delay in completion of the project was due to Global recession and are making all endeavors to complete the project. It was assured to the complainant that in all circumstances the interest of the complainant because of delay in handing over the possession of the flat shall be taken care in accordance with Clause 10( c) of the agreement at the time of delivery of possession of the flat to him. It is submitted that in case of delay of possession of the flat as per Clause 10(c ) of the Flat Buyer Agreement, the liability of the OPs is limited to Rs.5/- per sq. feet per month after 42 months have elapsed and subject to other conditions etc. i.e. the limit of liability has been fixed as per the terms and conditions of the agreement. For the delay occasioned in the delivery of the flat, the complainant shall be duly compensated under Clause 10( c) of the agreement. After denying all other averments made in the complaint, it is prayed to dismiss the complaint
4. In support of the complaint, the ld. counsel for the complainant tendered in evidence, Ex.CA sworn affidavit of the complainant alongwith documents Exs.C1 to C23 and closed the evidence.
The Ld. counsel for OPs. tendered in evidence Ex.OPA, affidavit of Sh.Ajay Kashyap alongwith documents Exs.OP1 to OP6 and closed the evidence of the OPs.
5. We have heard the ld. counsel for the parties, gone through the written arguments by the ld. counsel for the complainant and have also gone through the record of the case, carefully.
6. It is not in dispute that the buyers agreement Ex.OP4 was entered into between the parties on 31 December,2007. As per provision of clause 10(a), possession of the constructed unit was to be delivered within a period of 36 months, extended by 6 months from the date of commencement of the construction. Admittedly till the time of filing of complaint on 3.11.2015, possession of the unit was not delivered by the Ops to the complainant. At the time of arguments, no firm date was given as to when possession is likely to be delivered.
7. During the course of arguments, the Ld. counsel for the Ops has submitted that construction could not be completed on account of Global Recession / meltdown. As per the complainant he had already paid a sum of Rs.7,87,563.85 , this fact has not been controverted by the Ops. Once the Ops have received more than 64 % of the sale consideration towards the unit from the complainant 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. In the case of Swarn Talwar and Others Vs. M/s Unitech Pvt. Ltd. 2015(IV)CPR 34, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, while rejecting the plea of the builder held as under: “ Coming to the plea that there was recession in the economy and a disruption due to agitation by the farmers and acute shortage of labour etc. the following view taken by us in complaint case No.427 of 2014, titled as Satish Kumar Pandey 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 complainant. There is no allegation of any lockout or strike by the labour 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 buyer’s agreement”. The principle of law laid down in the aforesaid cases is fully applicable to the facts of the present case. The Ops by not handing over the possession even after a lapse of 10 years, were not only deficient in providing service but also indulged into unfair trade practice. Since the complainant has sought the refund of the amount deposited by him, therefore, he is certainly entitled to get the same alongwith interest . In catena of cases, where the complainants/allottes have sought the refund of the amount deposited by them, due to delay in handing over of the possession of the units by the Ops, the Hon’ble National Commission has directed the builders/developers to refund the amount deposited by the allottee/investors/complainant alongwith interest @ 12% per annum. Following the principle laid down by the Hon’ble National Commission, we also hold that in the present case, complainant is entitled to get the refund of the amount paid by him alongwith interest @12% per annum from the respective dates of deposits. Since, we have already directed the Ops to refund the amount deposited by the complainant alongwith interest @ 12% , therefore, the prayer made for issuance of directions to the Ops to pay Rs.5/- per sq.fit.per month as per clause 10 ( c ) of buyer’s agreement is declined . However, complainant is entitled to get compensation on account of mental agony and physical harassment suffered by him due to non handing over the apartment/unit, even after inordinate delay of more than 10 years. He is also entitled to get litigation expenses.
8. In view of the aforesaid discussion, we partly allow the complaint and direct the Ops in the following manner:
- To refund Rs.7,87,563.85 alongwith interest @12% per annum from the respective dates of deposit till its realization;
- To pay Rs.1,00,000/- as compensation on account of mental agony and physical harassment;
- To pay Rs.20,000/-towards litigation expenses.
The Ops are further directed to comply the order within a period of two months from the date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the rules. Thereafter file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:27.4.2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
