Delhi

StateCommission

CC/13/382

ARIYA PRIYA SHANKAR & ANR. - Complainant(s)

Versus

M/S PARSVNATH DEVELOPERS & ORS. - Opp.Party(s)

16 Dec 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments : 16.12.2019

Date of Decision : 06.01.2020

Complaint No.382/2013

In the matter of :-

 

1. Ms. Ariya Priya Shankar,

W/o Mr. K. Shankar.

 

2. Mr. K. Shankar,

S/o Mr. A.V. Krishnamurthy,

 

Both residents of:

 

S-2, Plot No.16,

Sreeji Apartments,

Shalimar Garden Extension-I,

•  
•  
•  

 

Versus

 

1. Parsvnath Developers Limited,
6.  

19, Barakhamba Road,

New Delhi-110001.

 

Through its Managing Director

 

2. The Executive Chairman,

Parsvnath Developers Limited,

6.  

19, Barakhamba Road,

New Delhi-110001.

 

3. Devidayal Aluminium Industries Private Limited,

40-B1/16, Site IV,

Industrial Area Sahibabad,

•  

Uttar Pradesh.…...........Opp. Parties

 

Through its Managing Director                    

                    

CORAM

 

Sh. O. P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                        Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 

Sh. O.P. Gupta, Member (Judicial)

Judgement

1. The case of the complainant is that OP-3 is owner of land measuring 41543.5 sq. yds.in Khasra No.823, 824, 825, 836 to 846, 847 in Village Pasonda, Pargana Loni, Distt. Ghaziabad, UP.  By agreement dated 28.10.2004 OP-1 agreed to construct and sell a group housing complex namely ‘Parsvnath Regalia’.  The OP-1 started marketing the said flat in 2006.  The complainant booked the flat in May, 2009 vide agreement dated 08.06.2009.  OP-1 agreed to sell flat No.1002 in Tower-3, measuring 1570 sq. yds. with open car parking  total sale consideration was Rs.38,57,250/-.  He opted down payment plan and paid around 95% i.e. Rs.36,66,888/- as per demand made.  Balance 5% was to be paid at the time of offer of possession.  He was required to pay a one-time interest free maintenance deposit at the time of final payment.

 

2. He took housing loan of Rs.19 lacs from State Bank of India on which he is paying interest @ 10% to 12% per annum.  The scheduled date of handing over possession was July-Aug, 2009.  However, as project has been delayed, complainant was assured to be handed over possession of the flat by April, 2010.  The construction commenced in July-Aug. 2006, flat was to be completed within 13 months with grace period of six months from commence of the tower in which the flat was located. He received letter dated 12.02.2010 informing him rescheduling the completion of project. OP-1 unilaterally extended the completion date to December, 2010 and assured him of compensating for the delay by way of penalty as per clause 10 (c) of the Flat Buyers’ Agreement. The said clause contemplates liability to pay compensation @Rs.5% per sq. ft. per month of the super area. He once again received letter dated 19.11.2010 extending the completion date to March-June, 2011 (in two phases).  He received another letter dated 27.01.2011 assuring of him for completing project by June, 2011.

 

3. He received letter dated 26.06.2010 informing him that service tax effective from 01.07.2010 has been imposed @2.575 % in respect of basic sale price and @10.3% in respect of preferential location charges and other charges. The OP is liable to bear the said service tax as it was guilty of delay beyond 01.07.2010. he sent notice dated 22.10.2012 to handover possession of the flat at the earliest and pay interest @24% per annum on the amount already paid by him, Rs.5 lacs as compensation for mental harassment and agony to bear liability of payment of service tax.  Hence this complaint for said reliefs.

 

4. OP filed WS raising preliminary objection that complaint is false, frivolous, is bad in law because of mis-joinder and non joinder of necessary parties.  Housing Finance Company was also necessary party. On account of global recession which had hit the economy all over the world and had its effect on the Indian economy at large, pace of the construction had slowed down. Proceedings before Consumer Courts are essentially summary in nature. On merits it stated that basic price of the flat was Rs.11,93,371.88.

 

5. The complainant has filed rejoinder and his own affidavit in evidence.

 

6. On the other hand, the OP filed affidavit of Sh. Madan Lal Dogra, Deputy General Manager (CRM).  Both parties have filed their written arguments.

 

7. I have gone through the material on record and heard the arguments.  During oral argument, counsel for OP filed copy of Sale Deed  dated 14.01.2019 and Customer Ledger to make out that after receiving possession and execution of Sale Deed, complainant is no more consumer. From the customer ledger he wanted to make out that penalty for delayed possession at the agreed rate has already been adjusted.

 

8. On the other hand, counsel for the complainant  submitted that it is not the case of receiving possession before filing of the complaint.  It is also not a case where the complainant has received unconditional possession of the flat even during pendency of the case.  Rather it is case where he took the possession under protest and reserved his right to seek difference in interest claimable by him and delayed possession penalty paid by OP. In this regard he filed copy of letter dated 30.11.2019.  He also drew my attention towards proceedings dated 10.04.2018 vide which the complainant reserved his right to argue the matter of enhancement of compensation.

 

9. Counsel for complainant also filed copies of judgement in other connected matters titled as Vineet Mathur Vs. Parsvnath Developers Ltd., Praveen Saxena Vs. Parsvnath Developers Ltd. decided by Bench-1 of this Commission wherein the OP was directed to pay compensation in form of simple interest @8% per annum.  He also held relied upon the decision of National Commission in CC No.739/17  titled as Vikas Garg Vs. EMMAR MGF Land Ltd. decided on 09.01.2019, decision of State Commission, UT Chandigarh in Vipan Kumar Bhalla Vs. DLF Homes Panchkula Pvt. Ltd. and other similar matters.

 

10. Counsel for OP relied upon the decision of Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, AIR 2019 SC3218  in which it was held that there cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs.10 per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession, then there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate. He also placed reliance of decision of National Commission in Rashid Ahmad Usmani Vs. DLF Ltd. IV (2019) CPJ 52 in which it was held that after taking possession, complainant does not remain a consumer.

     

11. Counsel for complainant submitted that the present case is in argument since 17.07.2017.  So the judgement of Hon’ble Supreme Court relied by counsel for OP cannot be applied.  Had he case been decided earlier, the said judgements would have no application.  I am unable to agree.  The case is not to be decided on hypothetical arguments as to what have happened, had the things gone that way.  The case is to be decided according to law prevailing on the date of decision.

 

12. Counsel for complainant submitted that since in other similar matters decided by Bench-1 of this Commission, the complainants were given difference in interest @8% per annum and agreed penalty, there should be no discrimination. Again the argument is fallacious, the said decision was before the decision of Hon’ble Supreme Court in D.S. Dhanda (supra).

 

13. In view of the above discussions, the complaint is dismissed.

 

14. Copy of this order be sent to both the parties free of cost.

 

15. File be consigned to Record Room.

 

(O.P. Gupta)

                                                                                             Member (Judicial)

                               

 

 

245.