State Consumer Disputes Redressal Commission
Sh. Ranbir Singh Dabas vs M/S Parsvnath Developers Ltd. on 10 April, 2024
CC/472/2015 MR. RANBIR SINGH DABAS VS. M/S PARSVNATH DEV. LTD. DOD: 10.04.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 21.07.2015
Date of reserving the order: 19.03.2024
Date of Decision: 10.04.2023
COMPLAINT CASE NO.- 472/2015
IN THE MATTER OF
MR. RANBIR SINGH DABAS
S/O LATE MR. RAM SWROOP
R/O B-3/47A, LAWRENCE ROAD,
KESHAVPURAM, DELHI-110035
(Through: Mr. Neeraj Thakkar, Advocate)
...Complainant
VERSUS
M/S PARSVNATH DEVELOPERS LTD.
(THROUGH ITS MANAGING DIRECTOR)
AT: 6th FLOOR, ARUNACHAL BUILDING,
19, BARAKHAMBA ROAD,
NEW DELHI-110001
(Through: Mr. Aishwary Jain, Advocate)
...Opposite party
CORAM:
HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Complainant, in person
Mr. Aishwary Jain, counsel for the Complainant
PER: HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
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CC/472/2015 MR. RANBIR SINGH DABAS VS. M/S PARSVNATH DEV. LTD. DOD: 10.04.2023
JUDGMENT
1. Brief facts necessary for the adjudication of the present complaint are that the Complainant booked a 3 BHK residential flat with the Opposite Party in their upcoming project namely „Parsvnath Palacia‟ and had paid an amount of Rs.5,50,000/- to the Opposite Party vide cheque bearing no. 563607 dated 28.06.2006 drawn on Syndicate Bank, towards an advance booking amount. Vide Allotment Letter dated 23.04.2007, the Opposite Party allotted a flat bearing no. B2-503 admeasuring 1710 sq. ft. in the aforesaid project, to the Complainant. The total sale consideration of the said flat was Rs.52,15,500/-.
2. It has been stated by the Complainant that from the period June 2006 to April 2011, he had paid a total amount of Rs.20,35,359/- to the Opposite Party, as and when the same was demanded by the Opposite Party.
3. It is the case of the Complainant that after paying the abovesaid amount of Rs.20,35,359, he visited the project site wherein he found that no construction had been carried out by the Opposite Party which the Opposite Party had been claiming at the time of issuing demand letter. As and when the Complainant requested the Opposite Party to apprise him about the status of the construction, the Opposite Party failed to give any plausible reply. As there was no hope that the Opposite Party would offer the possession of flat, the Complainant sent a legal notice dated 01.06.2015 to the Opposite Party seeking refund of his entire money along with interest, but was of no avail.
4. Thus, the Complainant was left with no other option but to file the present complaint on 21.07.2015 alleging deficiency of service and unfair trade practice on the part of the Opposite Party.
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5. When the present complaint case was filed by the Complainant, notice of the complaint was issued to the Opposite Party on 12.08.2015.
6. The Opposite Party filed written statement along with an application seeking to condone the delay which had occurred in filing the written statement.
7. Vide order dated 25.05.2016 passed by our Learned Predecessors, the application filed by the Opposite Party seeking to condone the delay in filing the written statement was allowed subject to the payment of Rs.10,000/- to the Complainant.
8. As per order dated 07.10.2016, the Opposite Party paid the costs of Rs.10,000/- to the counsel for the Complainant and the written statement was taken on record.
9. In the written statement, the Opposite Party stated that as per letter dated 09.07.2010, we had already informed all the customers that the delay in completing the project was due to global economic slowdown, experienced by the real estate sector in the country. Despite repeated reminders, the Complainant failed to return the signed copy of the Buyers Agreement. The Complainant was irregular in making payments of the flat. The Opposite Party had also raised preliminary objections as to the maintainability of the complaint case. The Opposite Party contended that the present complaint involves complicated questions of law, which cannot be decided in the summary procedure adopted by this Commission.
10. The Complainant filed rejoinder rebutting the averments made in the written statement filed by the Opposite Party and recapitulated the facts stated by him in the complaint.
11. The Complainant had filed his evidence by way of affidavit in order to prove his averments on record.
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12. The Opposite Party had also filed evidence by way of affidavit in order to prove its averments on record. Evidence by way of affidavit is duly supported by an affidavit of Mr. Madan Lal Dogra S/o Mr. M.R. Dogra, Deputy General Manager (CRM) of the Opposite Party/company.
13. Written arguments were also filed on behalf of both the parties.
14. We have perused the material available on record and heard the counsel for both the parties.
15. The fact that the Complainant had booked the residential flat with the Opposite Party is evident from „Allotment Letter‟ dated 23.04.2007 (annexed with paperbook) issued by the Opposite Party to the Complainant. And the payment to the extent of Rs.20,35,359/- received by the Opposite Party, is evident from the photocopies of the receipts dated 28.06.2006, 14.06.2007, 20.06.2008, 05.04.2011, issued by the Opposite Party (annexed from page no. 11 to 14 of the complaint).
16. The first question for adjudication is "whether the present complaint involves complicated question of facts and law, which should be decided by the civil court."
17. To resolve this issue, it is imperative to refer to the dicta of the Hon‟ble Supreme Court in J.J. Merchant Versus Shrinath Chaturvedi (2002) 6 SCC 635 wherein it was inter alia held by the Hon‟ble Supreme Court as under:
"Under the Act the National Commission is required to be headed by a retired Judge of this court and the State Commission is required to be headed by a retired High Court Judge. They are competent to decide complicated issues of law or facts. Hence, it would not be proper to hold that in cases where negligence of experts is alleged, consumes should be directed to approach the civil court. It was further held that merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing consumer to ALLOWED PAGE 4 OF 8 CC/472/2015 MR. RANBIR SINGH DABAS VS. M/S PARSVNATH DEV. LTD. DOD: 10.04.2023 approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards."
18. Returning to the facts of the present complaint, and the perusal of the record shows that the Complainant had availed the services of the Opposite Party for a consideration. However, the Opposite Party failed to handover the possession of the said flat within the reasonable time, aggrieved by which, the Complainant has sought refund of his money along with the compensation for delay from the Opposite Party, but the Opposite Party has failed to do so. Hence, the Complainant is entitled to file the present complaint before this Commission since the Complainant is aggrieved by the deficient services of the Opposite Party i.e., the failure of the Opposite Party to handover the possession within the reasonable time period.
19. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which cannot be settled on the basis of the pleadings filed on behalf of the contesting parties. Consequently, we are of the view that the present complaint falls within the four corners of the jurisdiction of this commission.
20. The second question for adjudication is "whether the Opposite Party is deficient in providing its services to the Complainant or not."
21. On perusal of the record, we fail to find any documentary proof, cogent evidence or any photographs regarding the progress of ALLOWED PAGE 5 OF 8 CC/472/2015 MR. RANBIR SINGH DABAS VS. M/S PARSVNATH DEV. LTD. DOD: 10.04.2023 the construction as per the demand letters raised by the Opposite Party from time to time. Further, we fail to find any executed Buyer Agreement between the parties. However, we find only Allotment Letter dated 23.04.2007, which has been issued by the Opposite Party. On perusal of Allotment Letter, we do not find any stipulated time for handing over possession of the flat in question. On this issue, we deem it appropriate to refer to First Appeal No. 348 of 2016 titled "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors.", wherein the Hon‟ble National Commission has held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:
46. Time for performance of promise, where no application is to be made and no time is specified -
Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation - The question "what is a reasonable time" is, in each particular case, a question of fact".
19. From the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of construction and delivery of possession. If the possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the opposite party shall stand proved."
22. On perusal of above settled law, it is clear that if the possession of the unit is delivered beyond 42 months or 48 months, then there is deficiency of service on the part of builder. Thus, the Opposite Party was duty bound to hand over the possession of the said flat within 48 months i.e. before May 2011, as the allotment letter was issued to the Complainants on 23.04.2007.
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But, the possession of the flat unit in question has still not been offered by the Opposite Party even after elapse of more than 16 years from the date of allotment. In these circumstances, it is clear that the Opposite Party failed to offer possession of the said flat within the reasonable period.
23. Consequently, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party failed to hand over possession of the flat in question within reasonable period of time and kept the hard-earned money of the Complainant for about 13 years.
24. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e., Rs.20,35,359/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 10.04.2024 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 09.06.2024; C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 09.06.2024, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
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25. 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. Rs.1,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs.50,000/-.
26. Accordingly, the complaint filed by the Complainant is hereby allowed.
27. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
28. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
29. File be consigned to record room along with a copy of this Judgment.
(RAJAN SHARMA) MEMBER (JUDICIAL) (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On: 10.04.2023 ALLOWED PAGE 8 OF 8