State Consumer Disputes Redressal Commission
Ganga Devi vs M/S Parkwood Infrastructure Pvt. Ltd. on 22 August, 2023
C/883/2017 D.O.D.: 22.08.2023
MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:11.05.2017
Date of hearing: 08.05.2023
Date of Decision: 22.08.2023
COMPLAINT CASE NO.-883/2017
IN THE MATTER OF
MRS. GANGA DEVI (Since Deceased),
THROUGH HUSBAND MR. PAWAN KUMAR GUPTA
R/O H.NO.147, SECTOR 5, URBAN ESTATE
KURUKSHETRA -136118, HARYANA
(Through: Mr Sanjeev Nirwani, Syed Hasan Isfahani
and Ayush Sariyar, Advocates)
...Complainant
VERSUS
M/S PARKWOOD INFRASTRUCTURE PVT LTD
1001, 10TH FLOOR, HEMKUNT CHAMBERS
89, NEHRU PLACE, NEW DELHI- 110019
(Through: Mr. Bikram Singh, Advocate)
...Opposite Party
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C/883/2017 D.O.D.: 22.08.2023
MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HO'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Sanjeev Nirwani, Counsel for the Complainant
None for the Opposite Party
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present Complaint has been filed by the Complainant before this Commission alleging deficiency of service on the part of Opposite Party and has prayed for the following reliefs:
a. "handover to the Complainant possession of duly completed flat no. D-1002 on 16th floor in tower no. 'D' with copy o Completion/Occupancy Certificate issued by competent authority, b. pay to the Complainant interest @ 24% p.a. on the sums paid by theComplainant, instead of Rs.5/- per sq. ft. per month from 16-02-2016 till the date of possession of completed flat, c. pay to the Complainant a sum of Rs.1,00,000/- towards compensation for harassment, tension and agony undergone by the Complainant at hands of the Opposite Party, d. pay to the Complainant costs of the present complaint and its proceedings, and Any other relief or reliefs as deemed fit and proper by Hon'ble Forum under circumstances of the case ALLOWED PAGE 2 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD be also granted in favor of the Complainant and against the Opposite Party"
2. Brief facts necessary for the adjudication of the present complaint are that on 15.11.2010, the Complainant booked an apartment bearing no.D-1002 admeasuring 1,685sq.ft. in Block 'D' on 10th floor with the Opposite Party in the proposed project "Parkwood Westend" situated at sector-92, Gurgaon, Haryana for a total sale consideration of Rs.40,64,220/-. The Complainant made an initial payment of Rs.3,43,234/- vide receipt no. P-656 dated 15.11.2010 and thereafter Allotment Letter dated 22.11.2010 was issued and the said apartment was allotted to the Complainant. Thereafter, the Complainant signed the Flat Buyer's Agreement dated 16.02.2013 and as per Clause 28 of the said agreement, possession was to be offered within 36 months from the date of execution of the said agreement. The Complainant opted for a 'Construction Linked Payment Plan' and made payments as and when demanded by the Opposite Party. The Complainant made total payments to the tune of Rs.16,18,293/-
3. Thereafter, the Opposite Party vide letter dated 25.02.2014 demanded a sum of Rs.4,52,493/- from the Complainant. However, the Complainant not being satisfied with the pace of construction of the apartment did not agree to make the payment. The Complainant has submitted that the Opposite Party has not offered possession of the said apartment till date and as such the Complainant is made to suffer due to the callous and negligent attitude of the Opposite Party in completing the project.
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MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
4. The Opposite Party has filed its written statement and has raised preliminary objections therein as to the territorial jurisdiction of this Commission. It is submitted that in view of the clause 55 of the Flat Buyers Agreement, only the courts at Gurgaon and the High Court of Chandigarh shall have the jurisdiction to adjudicate the matters arising out the said Agreement and as such this Commission lacks the territorial jurisdiction to adjudicate the present Complaint. Secondly it is submitted that the Complaint is liable to be dismissed in terms of Clause 28(b)(iii) read with clause 30(a) of the Flat Buyers Agreement in so much so that the Complainant has failed to clear her long standing dues as per the Payment Plan. It is further submitted that the Opposite Party demanded outstanding amount vide Demand Notice dated 25.02.2014 and in view of the clause 37.2(a) of the Flat Buyers Agreement, it is the sole discretion of the Opposite Party to cancel the Agreement in case the default is not cured/rectified by the Allottee within 30 days of the notice of such default. Lastly, it is submitted that Opposite Party entered into 10 sale deeds with different sellers and bought the land for development and construction of the project "Parkwood Residence". However, the sellers turned dishonest and went on instituting cases one after the other against the Opposite Party. It is submitted that the Opposite Party was badly entangled in a dispute pertaining to a part of the land for over 6 years because of which the timely completion of the project was scuttled. It is further submitted that such circumstances were beyond the control of the Opposite Party for which no malafide intent can be attributed to the Opposite Party.
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MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
5. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Party and has denied the averments made in the written statement. The Evidence by way of Affidavit filed by the Complainant is on record.
6. During the course of proceedings the Opposite Party was required to file its Evidence by way of Affidavit. However, despite giving multiple opportunities, the Opposite Party failed to file evidence by way of affidavit. Therefore, right of the Opposite Party to file evidence by way of affidavit stands closed vide order dated 09.07.21. Therefore, no credence can be given to the submissions of Opposite Party and the arguments of the Complainant remain unrebutted.
7. We have perused the material available on record and heard the counsel for the Complainant.
8. The fact that the complainants had booked a flat with the Opposite Party is evident from the Flat Buyer Agreement dated 16.02.2013 Payment to the extent of Rs.16,18,293/- by the Complainant to the Opposite Party is evident from the receipts issued by the Opposite Party (Annexure C1-C8 alongwith the complaint).
9. The only question that falls for our consideration is whether the Opposite Party is liable for providing deficient services to the Complainant.
10. To resolve this issue we deem it appropriate to refer to the Demand Letter Cum Service Invoice (Annexure C-9) which is reproduced hereunder as :
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11. A perusal of the aforesaid Demand letter clearly reflects that since the date of booking i.e. 15.11.2010 the Complainant has consistently made payments as and when demanded by the Opposite Party till 01.02.2014. The Complainant has submitted that not being satisfied with the pace of construction, she refrained from making further payments. Here, it is pertinent to note that the Opposite Party has itself admitted in para XIV that it was and is, badly entangled in several lawsuits which halted the construction of the said project. The relevant extract of the written statement is reproduced hereunder as -
" XIV. That as borne out from the above the Opposite Party was ad is in fact badly entangled in a dispute pertaining to a part of the lamd for over six years because of which the timely construction of the society was scuttled....."
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MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
12. It is to be further noted that a perusal of the record discloses that vide order dated 16.02.2012 passed by the Punjab & Haryana High Court, the Opposite Party was directed not to raise construction over the part of land in dispute. Thus it is crystal clear that the construction of the said project was halted. It is pertinent to note that the Complainant has not committed any default in making the payments and was consistent till 01.02.2014. Since, the Complainant opted for construction linked plan and was not satisfied with the pace of construction, no default can be attributed to the Complainant in view of the halted construction.
13. Moreover, the expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency.
There is a fault, shortcoming or inadequacy in the nature ALLOWED PAGE 8 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.
14. A perusal of the record clearly shows that the Opposite Party kept on demanding payments from the Complainant even when there were ongoing disputes/cases regarding the title and possessory rights of land with the land owners before different competent ALLOWED PAGE 9 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD courts. It is to be noted that the Opposite Party was involved in disputes/litigation regarding the portion of land since 2011 for about six years, but even then demanded payments from the Complainant vide Demand Letter dated 25.02.2014 (Annexure C-9). The Opposite Party clearly withheld the information of the ongoing disputes/cases pertaining to the title of the land keeping the Complainant in dark. In our view, the Opposite Party ought not to have kept on demanding money from the Complainant when there was absolutely no construction being carried out in light of the orders passed by the courts/authorities of competent jurisdiction. Undoubtedly, the Complainant opted for a construction linked plan and refrained from making the payments on not being satisfied with the pace of construction. However, the Opposite Party illegally demanded further payments when no construction was taking place on the disputed land. Furthermore, it is to be noted that the Opposite Party did not refund the amount by cancelling the said booking, neither any compensation was paid in view of clause 30(a) of the Flat Buyer's Agreement nor the possession was handed over to the Complainant even after the expiry of a decade beyond the stipulated time. In our view, such conduct amounts to deficiency in service and unfair trade practice. We opine that the Opposite Party cannot use the ongoing litigations as an excuse to keep the Complainant dangling in the air for indefinite time and to withhold the hard- earned money of the Complainant. Therefore, in view of the aforesaid discussion, the deficiency on the part of the Opposite party stands proved.
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MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
15. Now the only question remains that how much Opposite Party is liable to pay compensation for delay in handing over the possession of the said apartment. To deal this issue we deem it appropriate to refer to CIVIL APPEAL NO. 6044 of 2019 titled as EXPERION DEVELOPERS PVT. LTD. Vs. SUSHMA ASHOK SHIROOR, decided on 07.04.2022, where Hon'ble Apex court held that:
"..... 7. In view of the above discussion, we have no hesitation in holding that the terms of the apartment buyer's agreement dated 8-5-2012 were wholly one-sided and unfair to the respondent flat purchaser. The appellant builder could not seek to bind the respondent with such one-sided contractual terms."
9.1 The principle laid down in Pioneer's case has been followed consistently in many cases where the terms of the Apartment Buyer's Agreement were found to be one-sided and entirely loaded in favour of the Developer, and against the allottee at every step. The following are instances where the terms of the Apartment Buyer's Agreement were found to be oppressive, constituting unfair trade practice and the Court has not given effect to such terms of the Agreement:
9.2 In Arifur Rahman Khan v DLF Southern Homes Pvt.
Ltd.7, this Court held that there is no embargo on the award of compensation beyond the rate stipulated in the Apartment Buyer's Agreement where handing over the possession of the flat has been delayed. The Court observed that the Consumer Forums must take a robust and a common-sense approach by taking judicial notice of the fact that flat purchasers ALLOWED PAGE 11 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD obtained loans and are required to pay EMIs to financial institutions for subserving their debts. The Delay Compensation Clause provided for Rs. 5 per square foot per month. This Court found that this stipulation is clearly one- sided and does not maintain a level platform or even reflect a bargain between the parties. The Court granted additional compensation @ 6% p.a. simple interest to each buyer therein, over and above the Delay Compensation Clause. 9.3 In NBCC v Shri Ram Trivedi8, the Court found that the agreement fastening liability on the purchaser to pay simple interest @ 12% p.a. if he failed to pay instalments on time and at the same time, if the seller failed to hand over the possession on time, he would have to pay compensation only @ of Rs. 2 per square feet would constitute an unfair trade practice. The Court held that a term Wing Commander Arifur Rahman Khan and Aleya Sultana & Ors. v. DLF Southern Homes Private Limited (2020) 16 SCC 512 NBCC (India) Ltd. v. Shri Ram Trivedi (2021) 5 SCC 273 of a contract would not be final and binding if it is shown that the flat purchasers have no option but to sign on the dotted line of a contract framed by the builders. The Court further held that Consumer Forums were empowered to award just and reasonable compensation as an incident of its power to direct removal of a deficiency in service; they are not constrained by the rate prescribed in the agreement. The Court held that the compensation could be granted even if possession had been delivered. The same ALLOWED PAGE 12 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD principle followed in a subsequent decision in DLF Home Developers Ltd. v. Capital Greens Flat Buyers9. 9.4 A three-judge bench of this Court in IREO Grace Realtech (P) Ltd. V. Abhishek Khanna10 noticed the delay compensation clause, which is similar to the clause in the present case, which provided that the Developer would be liable to pay delay compensation @ Rs 7.5 per square foot which works out to approximately 0.9 to 1% p.a. The Court held that this Clause is one-sided and entirely loaded in favour of the Developer and against the allottee. The Court concluded that the powers of the Consumer Court were in no manner constrained to declare a contractual term as unfair and one-sided as an incident of the power to discontinue unfair or restrictive trade practices. It was held: "34. We are of the view that the incorporation of such one-sided and unreasonable clauses in the apartment buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the1986 Act, the powers of the consumer fora DLF Home Developers Ltd. v. Capital Greens Flat Buyers Association & Ors. (2021) 5 SCC 537 IREO Grace Realtech (P) Ltd. v. Abhishek Khanna & Ors. (2021) 3 SCC 241 were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An "unfair contract" has been defined under the 2019 Act, and powers have been conferred on the State ALLOWED PAGE 13 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act. 35. In view of the above, we hold that the Developer cannot compel the apartment buyers to be bound by the one-sided contractual terms contained in the apartment buyer's Agreement." 10. Having examined various decisions of this Court which considered similar clauses in Apartment Buyer's Agreement and following the ratio laid down in Pioneer case, the submission made on behalf of the Developer has to be rejected. We hold that the Commission is correct in its approach in holding that the clauses of the agreement are one-sided and that the Consumer is not bound to accept the possession of the apartment and can seek refund of the amount deposited by her with interest...."
16. Returning to the facts of the present case, it is to be noted that as per clause 26 (ii) of the Flat Buyer's Agreement, an interest of 18% per annum is imposed for a one-month delay in instalment payment by the Complainant wheraeas as per clause 31(a) of the said Agreement, the Opposite Party is only required to pay Rs. 5/- per square foot per month in case of delay in offering possession. From the aforesaid dicta of the Hon'ble Apex Court, it is clear that the practice of imposing an 18% per annum interest rate for a one-month delay in instalment payment by the Complainant, while the Opposite Party is only liable to pay Rs. 5/- per square foot per month in case ALLOWED PAGE 14 OF 16 C/883/2017 D.O.D.: 22.08.2023 MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD of delayed possession of the flat constitutes an unfair and one-sided agreement.
17. Therefore, keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to complete the development and handover the possession of the duly completed flat no. D-1002 on 16th floor in tower 'D' with copy of the Completion/Occupancy Certificate issued by Competent Authority within 3 months from the date of the present judgement.
18. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of :
A. Pay to the Complainant compensation for the delayed period in the form of simple interest at the rate of 6% p.a. on the amount paid by the Complainant from 16.02.2016 till the date of the possession of the completed flat.
B. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainant; and C. The litigation cost to the extent of Rs. 50,000/-.
19. Being guided by the principles as discussed above, in case the Opposite Party fails to pay the entire amount as mentioned in para 18 of this judgment on or before 22.10.2023 (i.e. within two months from the date of the present judgment), the entire amount is to be paid alongwith simple interest @ 9% p.a. calculated from 16.02.2016 till the actual realization of the amount.
20. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
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MRS.GANGA DEVI VS M/S PARKWOOD INFRASTRUCTURE PVT LTD
21. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
22. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) ( J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
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