Haryana

StateCommission

CC/82/2020

PANKAJ BANSAL - Complainant(s)

Versus

PARSVNATH - Opp.Party(s)

VISHAL MADAAN

18 May 2023

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.82 of  2020

Date of the Institution: 16.03.2020

Date of Decision:    18.05.2023

 

Pankaj Bansal, Age 49 years, S/o Sh.Bhagwan Dass Bansal, R/o H.No.1539, Sunami Gate Sangrur, Punjab now R/o # 346, Sector-4, Panchkula.

                                                                   .….Complainant

Versus

M/s Parsvnath Developers Limited, through Managing Director

Registered office: Parsvnath Metro Mall, Near Shahdara Metro station, Shahdara, Delhi 110032.

Site office: Parsvnath Royale, Behind Society No.105 to 111, Sector-20, Panchkula through its Manager.

                                                          .….Opposite Party

 

CORAM:   S.P.Sood, Judicial Member

 

Present:-    Mr.Vishal Madan, Advocate for the complainant.

Mr.Nikhil Sehrawat proxy counsel for Mr.Satpal Dhamija, Advocate for the Opposite Parties.

O R D E R

S P SOOD, JUDICIAL MEMBER:

                    The brief facts giving rise for the disposal of the present complaint are that on 30.08.2011, the complainant booked flat No.T6-301 (which was earlier in the name of M/s Alchemist Realty Ltd.) by paying Rs.8,70,092/- to the opposite party.  Accordingly, the OP issued receipt No.S0108505 dated 12.11.2011. Rest of the amount was to be paid as per the progress of construction as it was a construction linked plan. Lateron, on 16.01.2012 OP executed flat buyer agreement of 3 BHK (1740 sq. ft.) with complainant whereby basic sale price of the flat was agreed to be Rs.56,55,000/-. At the time of booking, it was claimed and assured by OP that the project will be completed within  a period of 36 months along with grace period of six months and accordingly the OP  was to deliver the possession of the flat maximum upto March 2015.  As per the demand raised by the OP, the complainant in all paid an amount of Rs.26,10,278/-   to the OP. After this development, the complainant requested OP to complete the project expeditiously, however the construction was going at a slow pace.  In the month  of August 2015, the complainant noticed that construction has stopped altogether. Then complainant filed a complaint No.994 of 2019 before HRERA Authority seeking refund of his deposited amount alongwith interest, but later on complainant withdrew his case.  With all these facts acting in the background, the complainant sought refund of the deposited amount alongwith interest, but,  OP flatly refused to accede to the genuine request of complainant, hence the complaint as OP happened to be deficient in its services.

2.                Notice of the complaint was issued against the O.P following which it appeared, but, despite availing several opportunities, the OP did not file the written statement and ultimately, this commission struck off the defence of OP vide its order dated 14.10.2022.

3.                When this complaint was posted for recording evidence of the complainant,  complainant has tendered in evidence  his affidavit as Ex.CW1/A vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-5 and closed his evidence.

4.                These arguments were advanced by Sh.Vishal Madan, learned counsel for the complainant and Sh. Nikhil Sehrawat proxy counsel for Mr.Satpal Dhamija, learned counsel for the opposite party. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

5.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he has already deposited, alongwith the interest? 

6.                While unfolding the arguments, it has been argued by Vishal Madan, learned counsel for the complainant that so far as the factum of execution of the builder buyers agreement  is concerned the same is not in dispute.  It is also not disputed that flat was allotted in the name of complainant.  It is also not in dispute that the basic price of the flat was Rs.56,55,000/-.  It is also admitted fact that initially the complainant paid Rs.8,70,092/- to the OP, otherwise in all a sum of Rs.26,10,278/- has been paid by the complainant to the  O.P.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainant by the O.P.  within 36 +6 months subject to some reservations.  The period within which, the possession of the flat was to be delivered had already expired despite complainant depositing an amount of Rs.26,10,278/-.  In these circumstances the complainant had no other option, but, to seek the refund of the amount deposited with OP alongwith interest, which he had already paid.  Even complainants entire evidence has gone unrebutted.

7.                On the other hand, it has been argued by Mr.Nikhil Sehrawat proxy counsel for Mr.Satpal Dhamija, learned counsel for the O.P that complainant has not paid the installment as per the payment schedule.  The complainant purchased the unit in the year 2011. There was a delay in making the payment of the amount.  It is true that the documents were executed between the parties, including the buyers agreement, which contained all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession.  However some provision was made for delay due to some unavoidable circumstances and certain reasons which were beyond the control of the O.P and the possession of the flat could not be delivered to the complainant in time.  However on one pretext or the other the possession was not delivered and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.Ps. was bound  to deliver the possession of the apartment within 36+6  months.  The answering O.Ps. has not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant.    The O.P. will offer the possession of the flat to the complainant after completion of development work.   Thus, the complainant was not entitled for the refund as prayed for.

8.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was purchased by the complainant for a cost of Rs.56,55,000/- against which an amount of Rs.26,10,278/-  has been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 36+6 months complete  subject to some reservation.    Since OP could not submit its written version so all his counsels argument could not be considered for want of pleadings and corresponding evidence.  To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 12 years had expired, the possession of the flat has not been delivered by O.Ps.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there was gross deficiency in service of opposite party  and thus, complainant is well within his legal rights to get the refund of the amount of Rs.26,10,278/-   which he had already deposited with the O.P.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.P. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

9.                In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.26,10,278/-     alongwith interest @ 9%  per annum from  the date of respective deposits till realization.    In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/-  as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

10.              Applications pending, if any stand disposed of in terms of the aforesaid order.

11.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

12.              File be consigned to record room.

 

May 18^th, 2023                                                     S.P.Sood

                                                                              Judicial Member   

S.K.(Pvt.Secy)