Delhi

StateCommission

CC/98/2019

SH. PRABHJEET SINGH - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

SHASHI SHANKER

14 Feb 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:­­­14.02.2020

                                                                                                              

                                                                   Date of decision:19.02.2020

 

Complaint No.98/2019

 

IN THE MATTER OF

 

SH. PRABHJEET SINGH

S/o Late Sh. Jitender Singh

R/o 5, Surya Niketan,

Anand Vihar, I.P. Extn.

Vikas Marg, Delhi-110092….Complainant

 

VERSUS

 

 

M/s PARSVNATH DEVELOPERS LIMITED

Regd. Office at

6.  

19, Barakhamba Road,

New Delhi-110001....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. Shashi Shankar, Counsel for the complainant

                   Sh. T.P.S. Chauhan, Counsel for the OPs

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint was originally filed before the District Forum, by Sh. Prabhjeet Singh, for short complainant, under the provisions of the Consumer Protection Act 1986, the Act, against Parsvnath Developers Limited, hereinafter referred to as OPs, alleging deficiency of service on the part of the OP they having not handed over the possession of the flat booked by the complainant within the time agreed to despite the payment having been made as per schedule, which complaint was ordered to be returned keeping in view the fact that the District Forum lacked the pecuniary jurisdiction to hear and to dispose of the case, applying the ratio of the judgement in the matter of Ambrish Shukla versus Ferrous Infrastructure Ltd. and ors. In these circumstances this complaint has been filed before this Commission praying for the relief as under:-

 

1. Direct the respondent to handover the peaceful vacant possession of the booked flat bearing no. T4-802 in Parsvnath Pleasant at Village Dharuhera, District Rewari, Haryana;

In alternative a similar flat having the same basic price at the time of booking of the flat in any of their projects in Delhi/NCR with prior intimation to the complainant;

2. Direct the respondent to pay a sum of Rs. 5 Lakhs as compensation for causing harassment, mental tension, pain and agony to the complainant and his family members by not handing over the possession of the booked flat as mentioned herein above;
3. Any other and further relief which this Hon’ble Court deems fit and proper may also be awarded in favour of the complainant and against the respondent.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant allured by the advertisement done by the respondent about their upcoming project applied a residential flat in their project Parsvnath Pleasant. Total sale consideration was Rs. 37,10,000/-. Booking amount of Rs. 4,50,000/- was paid on 11.04.2006. A provisional allotment letter dated 14.03.2007 was consequently issued in respect of the flat having tentative area of flat and payment indicated therein. A residential flat bearing no. T4-802 on 8^th Floor in Tower No. T4 having an approx. area of 1855 sq. ft. consisting of three bedrooms, drawing/dining, kitchen, three toilets, servant room with a toilet, balconies in the said project “Parsvnath Pleasant” together with proportionate undivided, undefined impartible interest in the land underneath and in the common areas and facilities in the said project/complex was booked in the name of the complainant. The respondent thereafter vide letter dated 01.11.2007 demanded instalment of Rs. 4,77,500/- and accordingly the same was paid by the complainant. The complainant had thereafter paid a sum of Rs. 9,27,500/- to the OP in terms of the agreement. A Flat Buyer Agreement acknowledging the receipt was signed by the complainant and the respondent on 12.06.2008. It was also agreed by the OPs that the construction of the flat would be completed within a period of 36 months from the date of start of foundation of the particular tower in which the flat is located. However, there was a grace period of six months subject to force majeure and circumstances beyond the control of the respondent. It was further agreed by the respondent that in case of delay in construction beyond the period as stipulated, the developer shall pay to the buyer compensation @ Rs. 53.80 per sq. mtr. per month for the period of delay.
4.           The complainant found no progress in the construction and therefore served a legal notice for taking immediate steps for handing over the possession with interest for the delayed period but since all his efforts done to settle the matter with the OPs proved an exercise in futility, he had resorted to for the redressal of his grievances filing of complaint first before the District Forum but later before the State Commission.
5.           The OPs were noticed and in response thereto they have filed their reply resisting the complaint both on technical ground and on merit stating primarily recession as the ground for delay on which they had no control.
6.           Pleadings in the case are complete. This complaint was listed for final hearing on 14.02.2020 when the counsel for both sides appeared and advanced their arguments, the complainant for the refund of the amount deposited the possession not having been handed over within the agreed period and the OPs defending themselves based on the defence taken in the pleadings. I have perused the records of the case and given a careful consideration to the subject matter.
7.           The fact that the complainant had applied for a flat with the OP is undisputed. The fact that the OPs have not delivered the possession of the flat within the time as agreed to despite almost entire sale consideration having been paid, is also not disputed.
8.           Short question for adjudication in this complaint is whether the complainant is 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 complaint deserves to be accepted, the possession of the flat not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.
9.           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.
10.           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.
11.           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.
12. The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
13. The complainants in their written arguments have also relied on the judgment of the Hon’ble NCDRC in the matter of Puneet Malhotra vs. Parsvnath Developers Ltd. CC 232/2014 decided on 29.01.2015 holding as under:

 

“The opposite party has already taken almost entire sale consideration from the complainants. However, despite making almost entire payment, the complainants have not been able to get the shelters they had sought to acquire and considering the steep increase in the value of land and the cost of construction in last 7-8 years, it is not possible for them to acquire another similar accommodation even after adding the amount of interest @ 18% per annum to the amount they had deposited with the opposite party. Therefore , the facts of these cases are really gross and justify grant of interest @ 18% per annum, inclusive of appreciation in the value of land and in the cost of construction in last about 7-8 years. For the reasons stated hereinabove, the complaints are disposed of with a direction to the opposite party to refund the amount which the complainants had deposited with it, along with interest on the said amount @ 18% per annum from the date the deposit was made till the date the refund is made. This comprises 8% per annum on account of appreciation in the land value and increase in cost of construction and 10% on account of interest. However, considering that compensation is included in grant of interest @ 18% per annum, we do not grant any separate compensation to the complainants over and above interest @ 18% per annum.”

 

They have relied on yet another judgment passed by the Hon’ble NCDRC in the matter of Swarn Talwar and two ors vs Unitech Ltd. passed in CC 347/2014 decided on 14.08.2015 holding as under:

 

For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit till the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of.

 

14. 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.

 

15. 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 compensation in the form of simple interest at the rate of 7% from the date of deposit of the amount till its realisation. This rate of interest has been ordered keeping in view the situation prevalent now. This payment be made by the OPs to the complainant within a period of three months from the date of receipt of this order.
16. Ordered accordingly leaving the parties to bear the cost.
17. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
18.  File be consigned to records.

 

 

(ANIL SRIVASTAVA) 

MEMBER