Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 579.
Instituted on : 15.12.2020.
Decided on : 08.09.2021.
Smt. Sudesh age 48 years wife of Naveen Residing at 20B/28, Subhash Nagar, behind HDFC Bank, Rohtak(Haryana).
………..Complainant.
Vs.
- Parsavnath Developers Limited having its registered office Parsavnath Metro Tower, Near Shahadra Metro Station, Shahadra Delhi-32, through its Directors.
- Pardeep Kumar Jain director of Parsavnath Developers Limited having its registered office Parsavnath Metro Tower, near Shahadra Metro Station, Shahadra Delhi-32,
- Sanjeev Kumar Jain director of Parsavnath Developers Limited having its registered office Parsavnath Metro Tower, near Shahadra Metro Station, Shahadra Delhi-32,
- Deepa Gupta director of Parsavnath Developers Limited having its registered office Parsavnath Metro Tower, near Shahadra Metro Station, Shahadra Delhi-32.
- M/s Vardaan Buildtech Pvt. Ltd. having its registered office at Parsavnath Metro Tower, near Shahadra Metro Station, Shahadra Delhi-32 through its director.
- Krishan Lal Sharma, Director of M/s Vardaan Buildtech Pvt. Ltd. having its registered office Parsavnath Metro tower, near Shahadra Metro Station, Shahadra Delhi-32.
- Rajesh Kumar Panday, Director of M/s Vardaan Buildtech Pvt. Ltd. having its registered office at Parsavnath Metro Tower, near Shahadra Metro Station, Shahadra Delhi-32.
- The Site/branch Manager of Parsavnath Developers Limited, having its branch office Parsavnath city, Sector-33A, near IMT Industrial Area, Delhi Bye Pass Road, Rohtak(Haryana).
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
Present: Sh.Amit Kumar, Advocate for complainant.
Sh.Rajesh Sharma, Advocate for opposite party no.1 to 3 and
5 to 8.
Opposite party No.4 given up.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that in the year 2006 the respondent no.5 got transferred the allotment of 4.03 Acres known as Old Civil Hospital site at Railway Road, Sonipat in its name from M/s Prakash Infrastructure Pvt. Ltd. Thereafter in the year 2008 the respondent no.5 entered into a development agreement with the respondent No.1 for the construction of Parsavnath City Centre Complex. In this way it was a joint venture of respondent no.1 and 5 in which the respondent No.5 is owner of the land and the respondent No.1 had to develop the said complex. The respondents No.2 to 4 are the directors of respondent no.1 and respondents no.6 & 7 are the directors of the respondent no.5 company. The respondent no.8 is the branch office of the company at Rohtak. The complainant got booked a shop bearing No.GF-094 with area 215Sq.Feet(19.97 sq. meter) at ground floor in the above said complex for earning her livelihood by means of self employment by depositing Rs.675000/- vide receipt No.0014160 dated 20.11.2008. The complainant opted for the down payment plan according to which the complainant had to pay 95% of total cost upto 30.06.2009 and remaining 5% at the time of offer of possession by the respondent No.1. The complainant accordingly deposited the subsequent installments as per demands raised by the respondent no.1. Complainant deposited a total amount of Rs.1317412/- till 20.06.2009 which is about 95% of total sale price i.e. Rs.1386750/-.
2. A shop buyer agreement executed between the complainant and respondent company on 01.07.2009. On the same day the parties also entered into supplementary agreement regarding assured return of Rs.13160/- per month payable by the respondent no.1/company w.e.f. 01.07.2009 till offer of possession of shop. As per term No.10(a) of the main agreement, it was undertook by the respondent no.1 that: “Construction of the shop/Mall is likely to be completed within a period of thirty six months with an extended period of 6 months of commencement of construction after receipt of sanction of building plans/revised building plans and all other approvals including environmental clearance”. As per term No.9(b) it was undertook by the respondent No.1 that in case for any reason the whole or any part of the project is abandoned and/or the shop agreed to be sold herein is deleted and by reasons thereof or for any other reasons the developer is not in a position to give possession of the shop as allotted or re allotted, the buyer shall have no claim of any kind whatsoever against the developer except to the refund of the amount paid with simple interest @ 10% p.a. till the date of refund. After deposit of Rs.1317412/- opposite parties started paying assured return @ 35532/- after deducting the TDS @ 3948/- quarterly but with the passage of time the respondents started growing irregular in payment of assured return and they paid the assured return due upto 30.06.2015(paid on 12.06.2017, almost after delay of two years). Complainant requested the opposite parties to pay the arrears of assured return due since 01.07.2015 onwards and to deliver the possession of said shop. Initially the respondents lingeron the matter on one pretext or the other and now about one month ago the respondents have flatly refused to pay any assured return or to deliver the possession of any property to the complainant, which itself proves the deficiency in service on the part of respondents. The expected date of delivery of shop was in the year 2011/12 but now a period of more than eight years has passed and no construction work has been carried out by the respondents and the same is not expected to be completed in near future and with the growing age of the complainant, the purpose of booking the shop stands vanished with the lapse of time. Hence the complainant is left with no alternative to seek refund of her entire money along with arrears of assured return and adequate compensation. Accordingly the complainant requested the opposite parties to refund the amount but they refused to accede the genuine request of the complainant. Hence this complaint and the complainant has prayed for directing the respondents to refund the entire amount of Rs.1317412/- alongwith interest, to pay arrears of assured return w.e.f. 01.07.2015 till decision of the case and also to pay compensation and litigation expenses as explained in relief clause.
3. After registration of complaint, notices were issued to the opposite parties. Opposite parties(except opposite party No.4) in their reply has submitted that the complainant namely Mrs. Sudesh had booked a shop bearing no.GF-094 admeasuring 215 Sq. ft. at the basic cost of Rs.1386750/- in the Project. The complainant made a payment of Rs.675000/- in cash vide receipt no.00014160 dated 20.11.2008. On 01.07.2009 the parties entered into a Shop Buyer Agreement as well as Supplementary agreement wherein the opposite party agreed to pay the complainant an investment return i.e. Assured Return for a sum of Rs.13160/- per month by way of interest on quarterly intervals till the date of offer of possession. Accordingly the opposite party paid a substantial amount towards assured returns to the complainant. It is pertinent to mention here that the complainant was habitual defaulter in making the payments towards the basic cost of the shop. The opposite party sent various reminders/demand letters to the complainant requesting her to make the payment towards the basic cost of the shop. As on date the complainant has paid a sum of Rs.1317412/- towards the cost of the shop. It is submitted that the present complaint of the complainant is without any merits as the delay in completion of the Project is beyond the control of the opposite party. The case of the complainant is not that the opposite party has denied compliance of the terms of the Agreement. The opposite party has always assured the complainant that she will be duly compensated at the time of delivery of possession in accordance with clause 10(d) of the Agreement. It is submitted that the amount received from the complainant and other allottees have been utilized towards the construction of the Project only and seeking refund at this advanced stage will be detrimental to the interest of other allottees as well as to the Project at large. It is denied that there is any deficiency in service and unfair trade practice on the part of opposite party. Opposite party always kept the complainant informed with the current status of the Project. It is submitted that the complainant is making vague allegations against the opposite party with the ulterior motives best known to the complainant. It is relevant to mention here that the opposite party informed and intimated the complainant that despite economic slowdown and downfall in the real estate business, work on the project is going on a very fast pace and almost 50% of the work has already been completed. It is denied that the complainant had got booked the shop with a view to earn her livelihood by means of self employment. All the other contents of the complaint were stated to be wrong and denied. It is further submitted that the complaint of the complainant being frivolous and vexatious is rendered liable to be dismissed with exemplary costs. However ld. Counsel for the complainant vide his statement dated 03.03.2021 has given up the opposite party No.4 being unnecessary party.
4. Learned counsel for the complainant in his evidence tendered affidavit Ex.PW1/A, documents Ex.P1 to Ex.P8 and has closed his evidence on dated 05.04.2021. Ld. counsel for the opposite parties in his evidence has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R5 and closed his evidence on dated 07.07.2021.
5. We have heard learned counsel for the parties and have gone through the material aspects of the case very carefully.
6. In the present case it is not disputed that the complainant got booked a shop bearing No.GF-094 with area 215Sq.Feet(19.97 sq. meter) at ground floor with the opposite party and deposited Rs.675000/- vide receipt No.0014160 dated 20.11.2008. As per agreement Ex.P2 dated 01.07.2009, the complainant has paid a sum of Rs.1317412/- upto the date of signing the agreement. As per condition no.10(a) of the agreement, the construction of this shop/Mall was likely to be completed within a period of thirty six months with an extended period of six months of commencement of construction after receipt of sanction of building plans. As per supplementary agreement Ex.P1, the Developer shall pay to the buyer an investment return(Assured return) a sum of Rs.13160/- per month on quarterly intervals w.e.f. 01.07.2009 till offer of possession of shop. The contention of ld. Counsel for the complainant is that the expected date of delivery of shop was in the year 2011/12 but now a period of more than eight years has passed and no construction work has been carried out by the respondents and the same is not expected to be completed in near future. It is further contended that opposite parties have also not paid the assured return since 01.907.2015 and the complainant requested the opposite parties to pay the arrears of assured return due since 01.07.2015 onwards and to deliver the possession of said shop but the opposite parties have flatly refused to pay any assured return or to deliver the possession of any property to the complainant, which itself proves the deficiency in service on the part of respondents. It is prayed that the entire money paid by the complainant alongwith interest, arrears of assured return and adequate compensation be awarded to the complainant. On the other hand, contention of ld. Counsel for the opposite parties is that the complainant was habitual defaulters in making the payments towards the basic cost of the shop. The opposite party has sent various reminders/demand letters to the complainant requesting her to make the payment towards the basic cost of the shop. It is further submitted that the delay in completion of the project is beyond the control of the opposite party. Hence there is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
7. After going through the file and hearing the parties it is observed that as per the photographs placed on record as Ex.P3 to Ex.P8 dated 04.04.2021, no construction work has been started by the opposite parties even after passing of 11years(approx.) from the date of agreement. It is also observed that neither the possession of the shop has been delivered to the complainant nor the opposite parties have paid the assured return since 01.07.2015. Hence this is deficiency on the part of opposite parties. In this regard we have placed reliance upon the judgment dated 11.01.2021 of Hon’ble Supreme Court of India in Civil appeal no.5785 of 2019 titled as IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Others. whereby Hon’ble supreme Court has held that : “The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartment in other Phase of the project”. The aforesaid law is fully applicable on the facts and circumstances of the case. As such, opposite parties are liable to refund the amount deposited by the complainant alongwith interest, assured return agreed between the parties as well compensation to the complainant. Regarding the rate of interest, we have observed that as per Section 7(b) of the Shop Buyer Agreement, it is submitted that : “In exceptional circumstances, the Developer may, in their sole discretion condone the delay in payment by charging interest at the rate of 24% per annum on the amount in default”. As per Section No.9(b) it was undertook by the respondent No.1 that: “In case for any reason the whole or any part of the project is abandoned and/or the shop agreed to be sold herein is deleted and by reasons thereof or for any other reasons the developer is not in a position to give possession of the shop as allotted or re allotted, the buyer shall have no claim of any kind whatsoever against the developer except to the refund of the amount paid with simple interest @ 10% p.a. till the date of refund”. In one hand, if the buyer makes default in payment, the opposite party is charging interest @ 24% p.a. and on the other hand, in default of opposite parties in giving the possession, they are giving only 10% interest to the buyers, which is a dual policy of the opposite parties. Hence the Shop Buyer Agreement is a self serving document, which favours the developer only. As such, in our view opposite parties are liable to refund the amount alongwith interest @ 12% p.a.
8. In view of the facts and circumstances of the case, complaint is allowed and it is directed that opposite party No.1 to 3 & 5 to 8 shall jointly and severally refund the amount of Rs.1317412/-(Rupees thirteen lac seventeen thousand four hundred and twelve only) alongwith interest @ 12% p.a. from the date of deposit of alleged amount till its realization, It is further directed to the opposite parties to pay assured return @ Rs.13160/-(Rupees thirteen thousand one hundred and sixty only) per month w.e.f. 01.07.2015 till the date of decision and also pay a sum of Rs.25000/-(Rupees twenty five thousand only) as compensation on account of harassment and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
08.09.2021.
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Nagender Singh Kadian, President
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Tripti Pannu, Member.
