Delhi

New Delhi

CC/120/2021

Pawan Kumar Gupta - Complainant(s)

Versus

M/S. Parsvanth Developers Ltd - Opp.Party(s)

17 Feb 2022

ORDER

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.120/2021                                                      

            In the matter of:

 

            Mr. PAWAN KUMAR GUPTA

          R/o, 112A, KAMLA NAGAR,

           DELHI 110007                                                                     ……..COMPLAINANT

 

Versus

 

M/S PARSVNATH DEVELOPERS,

THROUGH ITS DIRECTOR

REGISTERED OFFICE AT 6^TH FLOOR,

ARUNACHAL BUILDING, 19,

BARAKHAMBHA ROAD, NEW DELHI 110001            ……..OPPOSITE PARTY

 

Quorum:

            Ms. Poonam Chaudhry, President

            Shri. Bariq Ahmad, Member

            Ms. Adarsh Nain, Member

                                                                                                Dated of Institution :02.11.2015

                                                                                                Date of Order           : 17.02.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

1. The present complaint has been filed under Section 17 of the Consumer Protection Act, 2019 (in short CPA, 2019).The facts of the case in brief are giving rise to complaint are that opposite party (in short OP) is engaged in the construction of houses, villas, in different parts of India.The complainant purchased a residential flat from OP bearing T7-401, in tower T7 in the complex Parsavnath Privilege hereinafter referred to as subject property. The Complainant and OP entered into flat buyer agreement dated 26.05.2008 and Rs. 10,00,000/- (Rupees Ten Lakhs Only) was paid by the Complainant to OP towards basic price vide cheque. The receipt of the same was acknowledged by OP. It is also stated that the Complainant made total payments of Rs. 48,59,333 (Forty Eight Lakh Fifty Nine Thousand Three Hundred Thirty Three Only)  which was 90% of the price of property booked. The total price of flat was 5,18,105/- (Fifty One Lakh Eighty One Thousand and Fifteen Only). The builder however delayed the construction and possession of the flat in question by around 10 years. It is also alleged that clause 10(a) of the  above agreement provides the construction of flat is likely to be completed within 36 months from the date of commencement of construction i.e. around 2011 but OP has failed to deliver possession till date. It is also stated that Clause 10(c) of the aforesaid agreement further provides that in case of delay beyond the stipulated period subject to force majeure and other circumstances, the developers shall pay to the buyer compensation @ 53.82% per sq. meter or @ Rs. 5 per sq. meterof super area of flat per month for the period of delay. It is further stated that the Complainant opted for home loan from ICICI Home Finance Loan for sum of Rs. 31,96,976/- (Rupees Thirty One Lakh Ninety Six Thousand and Nine Hundred Seventy Six only) for payment of the subject property, which was given to OP. The Complainant is constrained to pay EMIs of the loan taken for the flat in question. The OP has however failed to handover the possession of the flat. It is further stated that the Complainant is constrained to pay the EMIs of the loan taken from the Bank, the hard earned money of complainant is being used by OP and the Complainant is facing hardship in paying the EMIs. It is further stated that the Complainant has been filed within the period of limitation, as the cause of action is continuing one, and this Commission has the territorial jurisdiction as the OP works for gains within the jurisdiction of the Commission.
2. It is prayed that OP be directed to pay  to the complainant Rs. 48,59,333/- (Rupees Forty Eight Lakhs Fifty Nine Thousand Three Hundred Thirty Three Only) with interest @ 24% per annum with pendent lite and future interest @18% or @24% compounded per annum till the actual payment. It is also prayed that a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only), be awarded as damages and cost of litigation be also awarded.
3. OP contested the case and filed written statement stating inter alia that the Complainant had booked a property in the project of OP vide letter dated 23.02.2007and was temporarily allotted a flat bearing No. T7-401 in ParsavnathPrivilege, Greater Noida, Uttar Pradesh. It was further stated that a Flat Buyer Agreement dated 26.05.2008 was executed between the parties. It was also stated that this complaints is bad for non-joinder of necessary parties as bank has lien on the property and its NOC is required for refund of money. It was further alleged  that OP informed the complainant vide letter dated 19.04.2012 regarding relocation of the flat. It was also stated that the complaint is not maintainable, Complainant ought to have filed a civil suit as he is seeking the recovery of money. It was also alleged that complaint is not maintainable as Complainant had breached the terms of the agreement. It was further stated that the Complainant had not stated in his complaint that as per the agreement in the event in the delay in construction,  Complainant was entitled to compensation @ Rs. 5/- per sq. ft. for the period of delay. It was also stated that due to global recession, the pace of construction slowed down. It was also alleged that the matter involves complicated questions of fact and law which require detailed evidence, as such the matter ought to have been filed in the Courts of law. It was also alleged that OP has not violated the terms of agreement, the complainant has not been able to establish deficiency of service or consumer dispute. It was also stated that vide letter dated 10.06.2010, Complainant was informed of the global recession and rescheduling of the construction work and Complainant was intimated that flat buyer agreement would be settled at the time of possession. It was also stated that Complainant is not a consumer as defined in Consumer Protection Act 2019. It was stated that Complainant is not entitled to the relief that the Complainant is liable to be dismissed.
4. The complainant filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegation made in the written statement. Both parties thereafter filed their evidence by way of affidavit and also written submissions.
5.  We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
6. The fact that complainant booked a flat in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement and receipt of payment 48,59,333(Rupees Forty Eight Lakhs Fifty Nine Thousand Three Hundred Thirty Three Only). The copies of receipt of the above amount issued by OP have been also filed by complainant. The receipts are not controverted by OP.
7.  It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid 90% of the cost of the flat i.e. Rs. 48,59,333/- (Rupees Forty Eight Lakhs Fifty Nine Thousand Three Hundred Thirty Three Only) to the OP but OP failed to deliver the property even after 10 years of the agreement. It was also argued that complainant had taken home loan of Rs. 31,96,976 (Thirty One Lakh Ninety Six Thousand Nine Hundred Seventy Six) from ICICI for payment of the property in question, the bank had disbursed the said amount of Rs. 31,96,976(Thirty One Lakh Ninety Six Thousand Nine Hundred Seventy Six) directly on 31.05.2022 to OP. It was also argued that according to clause 10(a) of the Builder-Buyer Agreement, the construction was to be completed within 36 months from the date of commencement of project that is around May, 2011 but OP failed to  hand over possession of the flat even till on the filing of the complaint. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to constructs the property within 36 months from the date of commencement of the project in May 2011, but it failed to do so. It was also stated that vide dated 10.06.2010 OP informed that the project was rescheduled and was to be completed by March 2012. However, OP failed to do so. It was also argued that the builder/OP thus failed to comply with                  the terms of clause 10(a) of the agreement. As regard deficiency in services, Hon;ble Supreme Court has heldin ArifurRahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
8. It was alsoheld in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
9. On the other hand it was submitted on behalf of the OP that the complainant was informed vide letter dated 10.06.2010 about the delay in the project due global recession and rescheduling of the construction work. The complainant  was further intimated that delay by way of penalty Clause 10(c) of the Flat Buyer Agreement was to be settled at the time of possession. It was also submitted that the OP vide letter dated 19.04.2012 informed the complainant about relocation of the flat from T7-401 to T14-403 to achieve early completion. It was also argued that the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, 2019 which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
10. The contention of the OP was that the delay was due to force majeure, in this regard it is to be noted that no evidence was led by OP in support of the said contention that the delay was due to non-availability of the contractual labor or due to force majeure or compliance of any rules regulations, notification of Government authority.
11. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
12. It is to be noted Section 2 (47) of the Consumer Protection Act, 2019, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice …” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
13. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’:Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainant was justifiedin claiming refund of the amount deposited by him with compensation.

14. We are further of the view that the cause of action being the continuing one as the amount advanced by complainants was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
15. As regards the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act, 2019, it is to be noted that a mere allegation has been made in the WS by OP, in this regard no evidence was brought on record to prove the said contention. We are thus of the view that the same is without merits.
16. As regards the contention of OP that complaint is not maintainable, the complainant ought to have filed a civil suit as he is seeking recovery of money. In this regard to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 M/s Imperia Structures Limited Vs. Anil Patni and Anr.
17. We thus, hold that OP was guilty of deficiency in services. We also find that Complainant was not at fault for the delay which occurred in the completion of project. We further hold that there are no reasons to justify the delay in completion of the project. We accordingly direct OP/Parsavnath Developers to refund the amount Rs. 48,59,333/- (Rupees Forty Eight Lakhs Fifty Nine Thousand Three Hundred Thirty Three Only) to the complainant along with interest @ 9% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP is directed to pay interest @ 12% p.a. for the delayed period. We also award Rs. 10,000/- (Ten Thousand Only) as cost on litigation
18. A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

File be consigned to record room along with a copy of the order.

 

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                           (ADARSH NAIN)           

          Member                                                                                                 Member