Delhi

StateCommission

CC/845/2015

SH. RAJESH KUMAR - Complainant(s)

Versus

PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

18 Feb 2020

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:­­­18.02.2020

                                                                                                              

                                                                   Date of decision:25.02.2020

 

Complaint No.845/2015

 

IN THE MATTER OF

 

SH. RAJESH KUMAR

R/o D-106, Vikas Puri,

New Delhi-110018….Complainant

 

VERSUS

 

PARSVNATH DEVELOPERS LIMITED

Through its Director,

6.  

19, Barakhamba Road,

New Delhi-110001

 

Also at:-

Parsvnath Metro Tower,

Near Shadara 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. Anil Garg, Counsel for the complainant with Sh. Akshay Bhasin

                   Sh. Rakesh Bhardwaj, Counsel for the OPs        

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, by one Sh. Rajesh Kumar resident of New Delhi, for short complainant, against Parsvnath Developers Limited, hereinafter referred to as OPs, alleging deficiency on the part of the OPs they having not delivered the physical possession of the plot booked initially by one Ms. Himanshi Mittal but later on the transfer having been done by the OPs, by the complainant, despite agreed period having elapsed and despite the payment as per schedule having been made and praying for the relief as under:-

 

It is, therefore, most respectfully prayed that this Hon’ble Forum may be pleased to direct/order the OP

1. To allot the plot in Sonepat Project and give possession of the same to the complainant along with interest from Feb. 2005 @ 18% p.a. till the date of handing over on the deposited amount or in alternate direct the OP to pay a sum of Rs. 44,70,000/- to the complainant with pendent lite and future interest @ 18% per annum till realisation.
2. To direct the OP to pay a sum of Rs. 3,00,000/- to the complainant on account of mental agony and harassment caused to the complainant.
3. To award a sum of Rs. 1,00,000/- as cost of litigation in favour of the complainant.
4. Any other relief this Hon’ble Forum deems fit may be passed in favour of the complainant and against the OP.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           One Ms. Himanshi Mittal had booked a plot of land with the OP by depositing an amount of Rs. 5,25,000/-. Later the booking of the plot was transferred in favour of the complainant for which necessary approval from the OP was accorded. The complainant who stepped into the shoes as the allottees was assigned the customer ID/Registration No: PD2/COMM/Sonepat/R 0236. The complainant had thereafter deposited further amount of Rs. 5,25,000/- which means the OP had already collected a sum of Rs. 10,50,000/- for the plot. Allotment letter to this effect as agreed to was to be handed over within a period of one year from the date of booking.
4.           However the allotment was not issued despite the agreed period having elapsed and despite the requisite amount having been deposited. In these circumstances the complainant sought for the refund of the amount with interest and damages. The OPs not having handed over the possession of the plot nor having refunded the amount, this complaint was filed before this Commission for the redressal of his grievances.
5.           OPs were noticed and in response thereto they have filed their written statement resisting the complaint both on technical ground as also on merit stating, inter alia, that in the event of dispute with respect to sale of the plot the complaint cannot be filed before this Commission within the parameters of the Consumer Protection Act 1986. Secondly the complainant stationed at Delhi has sought to purchase the plot at Sonepat more for the purpose of investment in which case, the purpose being commercial, he cannot be treated as Consumer within the meaning of Section 2(1)(d) of the Act. Thirdly, the original allottee of the plot not having been impleaded the case is hit by non-joinder of parties. Fourth, the OPs drawing the attention of clause 7 of the agreement, have stated that the complainant pressing for refund is entitled for interest at the rate of 9% p.a. and no more. The said clause posits as under:-

 

That I/We agree that if I/We are not allotted any plot in the present & future Projects then I/We will accept the refund of the deposited money with the company along with simple interest @ 9% per annum from the date of acceptance of our nomination by the company.

 

6.           The complainant has filed rejoinder rebutting the contentions raised by the OPs in their written statement and reiterating the averments contained in the complaint. Evidence by way of affidavit has been filed by both sides. Written arguments are also on record.
7.           This matter was listed for final hearing before this Commission on 18.02.2020 when the counsel for both sides appeared and advanced their arguments, the complainant for the refund of the amount with interest and damage, the possession not having been handed over, the OPs agreeing for the refund but with interest only to the extent of 9% as per agreement. I have perused the records of the case and given a careful consideration to the subject matter.
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 plot not having been delivered within the time as agreed to.
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 plot.
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) is 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. The ld. Counsel for the OP in support of his case has relied on the judgement of this Commission in the matter of Sh. Mukesh Choudhary versus M/s Parsvnath Developers Limited passed in CC-767/2018 decided on 13.08.2019 holding as under:-

 

I have gone through the material on record and heard the arguments. The counsel for the OP submitted that it is a case of second purchaser in as much as the complainant did not book the plot directly with the OP.  Rather he is a transferee from the initial purchaser. There is a distinction in case of initial purchaser and a subsequent purchaser. The subsequent purchaser was well aware of delay in development and he entered into an agreement with open eyes. The difference was explained by NC in case of Satish Pandey vs. Unitech Ltd. III (2015) CPJ 440. This is more so when complainant himself has given an indemnity bond that in case the plot is not allotted to him, he would seek refund with interest @9% per annum from the date of transfer till refund.

 

16. 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 9% from the date of deposit of the amount till its realisation. This rate of interest has been ordered keeping in view the agreement between them. This payment be made by the OPs to the complainant within a period of three months from the date of receipt of this order.
17. Ordered accordingly.
18. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
19. File be consigned to records.

 

 

(ANIL SRIVASTAVA)

MEMBER