Delhi

StateCommission

CC/310/2014

KRISHAN MURARI SAHNI - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

09 Jan 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:­­­09.01.2020

                                                                                                              

                                                                   Date of decision:16.01.2020

 

Complaint No. 309/2014

And

Complaint No. 310/2014

 

IN THE MATTER OF

 

1.  

SMT. SANTOSH

W/o Late Sh. Navneet Singh

R/o H.No. 90, Vikas Nagar,

Sonipat Road,

Rohtak, Haryana....Complainant

 

VERSUS

 

PARASVNATH DEVELOPERS LTD.

(Through its Managing Director)

Regd. Office:

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Shahdara, Delhi-110032....Opposite Party

 

 

1.  

KRISHAN MURARI SAHNI,

S/o Late Sh. Thakur Das Sahni,

R/o H.No. 1-G-82,

N.I.T. Faridabad                                                     ....Complainant

 

VERSUS

 

PARASVNATH DEVELOPERS LTD.

(Through its Managing Director)

Regd. Office:

Parsvnath Metro Tower,

Near Shahdara Metro Station,

Shahdara, Delhi-110032....Opposite Party

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

 

1.   Whether reporters of local newspaper be allowed to see the judgment? Yes     

 2.   To be referred to the reporter or not?                                                        Yes

 

Present:       Sh. Saurabh Jain, Counsel for the complainants in both the cases

                   Sh. Rakesh Bhardwaj, Counsel for the OPs

 

ANIL SRIVASTAVA, MEMBER

 

JUDGEMENT

 

1.           These two complaints, C-309/2014 and C-310/2014, having identical facts and involving same law point were heard together and are being disposed of by a common order. Facts of the case necessary for the adjudication of the two complaints are these.
2.           Facts of the complaint Number C-309/2014

        Smt. Santosh, resident of Rohtak Haryana has filed this complaint before this Commission, for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against Parsvnath Developers Ltd., hereinafter referred to as OPs, alleging deficiency of service on their part they having not delivered the possession of the flat booked by her despite agreed period having elapsed and despite payment to the extent of requirement as per schedule having been made and praying for the relief as under:

 

In view of the above facts and circumstances and also in the interest of justice it is, therefore, most respectfully prayed that this Hon’ble Commission may kindly be pleased to pass the following orders/direction in favour of the complainant and against the OP.

 

1. Grant a sum of Rs.58,14,705/- (towards principal amount of Rs.27,24,497/- along with interest of Rs.30,90,208/-) at the rate of 18% per annum or at the same rate of 24% as claimed by the O.P., alongwith pendente lite and future interest at the rate of 18% or at 24% compounded per annum till the date of actual realization of the payment.
2. Grant a sum of Rs. 10 Lacs towards exemplary damages detailed above in the complaint.
3. Grant cost of litigation to the complainant.

Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainant and against the OP.

 

3.           The complainant’s husband (now deceased) had booked a residential “flat” in Tower No. A1, Flat number 304, measuring 1320 sq. ft. consisting of 2 bedrooms, 2 toilets, Living Room, Dining Room, Kitchen, Balconies in the said complex known as “Parsvanth Palacia” to be developed and constructed on Plot No. 5, Sector-Pi, (Alistonia Estate), Greater Noida, admeasuring 34999.22 sq. Metres. Accordingly, a provisional allotment letter dated 23.04.2007 was issued by the OP. As a consequence thereof the flat buyer agreement was executed on 07.07.2007 between the parties, pursuant to which it was agreed by the OP that the construction of the flat was to be completed within a period of 36 months, as per Clause 10(a) of the flat buyer agreement. The complainant had opted for the payment plan B, i.e. the Construction Linked Plan. The construction with respect to the flat in question having started in November, 2007, relying on the terms of agreement Clause 10(a), was to be completed within 36 months i.e. by October 2010. However, the construction stopped in January 2008, for reasons best known to the OP. Later the husband of the complainant expired in the year 2009, after which the complainant vide letter dated 10.09.2009 got the above-mentioned flat transferred in her name from the OP. The same was confirmed by the OP vide its letter dated 24.09.2009. The complainant as per the agreement and as per agreed schedule made the following payments to the OP from time to time:-

 

1. 10.08.2006 – a sum of Rs.5,50,000/- vide cheque number 545781 drawn on ICICI Bank.
2. 11.06.2007 – a sum of Rs.5,69,350/- vide cheque number 714476 drawn on ICICI Bank.
3. 28.11.2007 – a sum of Rs.4,95,450/- vide cheque number 714478 drawn on ICICI Bank.
4. 25.04.2008 – a sum of Rs.5,47,740/- vide cheque number 714481 drawn on ICICI Bank.
5. 03.12.2010 – a sum of Rs.3,74,957/- vide cheque number 849476 drawn on Oriental Bank of Commerce.
6.  03.12.2010 – a sum of Rs.1,87,000/- vide cheque number 000587 drawn on Axis Bank.

Thus the total payment made by the complainant to the OP was of Rs.27,24,497/-.

 

4.           However the construction was not complete within the agreed time frame. The complainant has alleged that this act on the part of the OP amounts to deficiency in service and unfair trade practice. In these circumstances the complainant has approached this Commission by way of this complaint praying for refund of the amount deposited, the construction not having been completed within the time prescribed with 24% interest on the ground that in the event of delay done by the complainant in depositing the instalment, the interest charged is 24%.
5.           OPs were noticed and in response thereto they have filed written statement resisting the complaint both on merit and on technical ground, stating that the delay in construction of the flat has been owing to global economic meltdown. Secondly they have denied any deficiency of service on their part in the discharge of their obligation towards the complainant having regard to the terms of the agreement as the delay done is for reasons beyond their control. Thirdly, they have resisted the complaint on the ground that the complainant has transacted in the matter for investment which means for commercial purpose in which case the complainant is not a consumer and if that be the case he/she cannot raise consumer dispute. Fourthly, there exists no cause of action qua the complainant and finally the issue involved in the case since are of complicated nature, those cannot be adjudicated by the Consumer Fora in the summary proceedings, relying on the verdict of the Hon’ble Supreme Court of India in the matter of Synco Industries versus State Bank of Bikaner & Jaipur and Ors- AIR 2002 SC 568. In these circumstances prayer has been made by the OPs for the dismissal of the complaint.
6.           Rejoinder as also evidence by way of affidavit has also been filed. The matter was listed before this Commission for final hearing on 09.01.2020 and both the counsel concluded their arguments in the subject matter. I have perused the records of the case and given a careful consideration to the subject matter.
7.           Facts of the Complaint Number C-310/2014

Facts of the case are exactly the same as in respect of C-309/2014 except to the extent that in this case the complainant had booked a residential “flat” in Tower No. B2, Flat number 1205, measuring 1320 sq. ft. consisting of 2 bedrooms, 2 Toilers, Living Room, Dining Room, Kitchen, Balconies in the said complex known as “Parsvanth Palacia” to be developed and constructed on Plot No. 5, Sector-Pi, (Alistonia Estate), Greater Noida, admeasuring 34999.22 sq. metres. Accordingly, the complainant was issued a provisional allotment letter dated 23.04.2007. The stand taken by the OP resisting this complaint is on the same footing. Here also the prayer is for the refund of the amount with 24% interest. Hearing in this case also stood concluded on 09.01.2020. I have scanned the records of this case also.

8.             In the first instance I may deal with the submission made by the OPs. Their arguments that they could not complete the construction owing to the global economic meltdown cannot be accepted as no cogent or tangible evidence has been led to this effect. Their next argument that the complainant has done the transaction for investment and thus not a consumer can also not be accepted since there exists nothing on record to show that there was commercial angle to this effect. In the absence of anything substantial suggesting that the transaction was done in the subject for commercial purpose, the complainant has to be treated as consumer in which case he is entitled to raise consumer dispute within the meaning as indicated in the Act. Finally no complicated issue in the case is involved as emphasised by the OPs as it is simple a case of deficiency of service which can be adjudicated by the consumer forum.
9.           Short question for adjudication in these two complaints is whether the complainants are entitled for the relief as prayed for in the facts and circumstances of the case when admittedly the OPs have not been able to hand over the possession of the flat within the time as agreed to. Having bestowed my consideration to the facts at hand I am of the considered opinion that the two complaints deserve to be accepted, the possession of the plot not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.
10.  Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
11.           The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation.  It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation.  One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the Complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.  But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.
12.           From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
13.  Besides, their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D’lima and ors as reported in II[2018] CPJ 1 (SC) are pleased to hold as under:

 

Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.

 

14.  The Hon’ble NCDRC in the matter of Parasvnath Buildwell Pvt. Ltd. and Anr versus Varun Dev, as reported in II[2018] CPJ 212 (NC) is pleased to direct as under:

 

“Flat booked was never constructed. Allottee cannot be made to wait indefinitely for possession. They are entitled for refund. Refund allowed with 12% interest.

 

15.  The Hon’ble NCDRC has taken similar view in the following matters also, namely,

         

1. Emaar MGF Land Ltd. and Anr versus Amit Puri-II[2015] CPJ 568 (NC)
2. Parasvnath Exotica Residents Association versus Parasavnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

 

16.  The Hon’ble NCDRC in the matter of Anil Raj and ors versus Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016 as reported in MANU/CF/0105/2016 is pleased to observe as under:

 

“The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical mental or even emotional suffering, insult or injury or loss. Therefore for the purpose of determining the amount of compensation, the commission/forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the OPs”.

 

17.  The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi vs. Sahara Prime City Ltd. as reported in IV [2019] CPJ 24(NC) is pleased to direct refund of the deposited amount with interest @10%, the OPs having failed to offer the possession of the allotted unit to complainant even after more than 8 years by which the unit was to be delivered.
18.  The Hon’ble NCDRC in yet another matter, in the matter of STUC Awasiya Gvatak kalyaan ASSO and Ors. Vs. Supertech, reported in III [2019] CPJ 226(NC) is pleased to hold that the allottees cannot be compelled to accept the possession at the belated stage and therefore refund of the entire amount alongwith compensation in the favour of simple interest @10% was ordered.
19.  Having regard to the discussion done and the legal position having been explained I am of the view that the ends of justice would be met if a direction is issued to the OPs to refund the deposited amount with simple interest at the rate of 7% from the date of deposit of the amount till its realisation. This payment be made by the OPs to the complainant within a period of two months from the date of receipt of this order.
20.  Ordered accordingly, leaving the parties to bear the cost. Both the complaints, C-309/2014 and C-310/2014 are disposed of on the above terms.
21.  Registrar of this Commission is requested to place on record the certified copy of this order in C-310/2014 also for records.
22.  A copy of this order be forwarded to the parties to the case free of cost as statutorily required. 
23.  File be consigned to records.

 

 

(Anil Srivastava)

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