State Consumer Disputes Redressal Commission
Ankur Jain vs Parsvnath Developers on 2 December, 2013
IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision:02.12.2013 Complaint Case No.2011/151 Sh. Ankur Jain, . Complainant S/o Sh. V.K. Jain, R/o 14/8, Sangam Building, BPT Colony, Dhumayne Road, Colaba, Mumbai 400005. Versus Parsvnath Developers . Opposite Parties 6th Floor, Arunachal Building, 19 Barakhamba Road, New Delhi CORAM Ms. Salma Noor Presiding Member
Sh. N P Kaushik Member (Judicial)
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Sh. N P Kaushik, Member (Judicial)
1. Complainant booked a residential flat in Tower No.17, Flat No.1102, measuring 1855 sq. ft. in the complex of Parsvnath Developers as Parsvnath Privilege, at Plot No.11, Sector-Pi (Chorosia Esate) Greater Noida. It was a housing scheme and Parsvanth Developers (hereinafter referred to as OP No.1) stated in the Flat Buyer Agreement, that the construction of the flat was likely to be completed within a period of 36 months from the date of commencement of construction of the particular tower. It was also stipulated in the Agreement that in case of delay in construction of the flat beyond the stipulated period, OP N.1 would pay to the buyer a compensation @53.82p per sq. meter or @Rs.5/- per sq. ft. of the super area of the flat per month for the period of delay. Similarly the buyer was liable to pay to the developer at the aforesaid rate in case of his failure to settle the final accounts while taking possession.
2. The complainant in the present case entered into a Flat Buyer Agreement to purchase a flat measuring 1855 sq. ft. for a total sum of Rs.52,86,750/-. The complainant paid an amount of Rs.21,48,592/- in all till 04.06.2008. Flat No.1102, in Tower No.17 was accordingly allotted to the complainant. The contention of the complainant is that OP No.1 had assured him of handing over possession of the flat within a period of 36 months in terms of the Agreement. The present complaint has been filed on 27.05.2011. Complainant contended that on his visit to the site he found no construction activities going on. On his enquiry no reason was given to him for not carrying out the construction.
3. On the basis of the aforesaid submissions, the complainant has sought refund of Rs.21,48,592/- alongwith interest @24% per annum compounded (Rs.33,24,282/-) alongwith pendentelite and future interest @24% p.a. till the date of actual realization. Compensation @R.5/- per sq. ft. per month on the flat having super area of 1855 sq. ft. as calculated from January 2010 till May 2011 amounting to Rs.1,48,400/-) alongwith interest. Besides this costs of litigation and damages to the tune of Rs.21,00,000/- have been sought. Total claim of complainant thus works out to Rs.77,21,275/-.
4. In its written version filed by OP No.1, it is admitted that the Flat Buyer Agreement was entered into between the parties. OP No.1 has stated that pace of the construction had slowed down in the last two years. His contention is that it was due to global recession hitting the Indian economy, which caused delay in construction. OP No.1 pleaded that this was a force majeure condition.
5. In the rejoinder the complainant denied that the pace of the construction had simply slowed down. He stated that construction had completely stopped and no construction activity whatsoever was taking place at the site. Parties have placed on record their respective affidavits towards evidence.
6. Arguments were addressed by the counsels for the parties at length.
7. During the course of arguments, counsel for OP No.1 conceded that construction work was not complete and not even superstructure for all the floors of the tower had been raised. In any case construction is not likely to be completed in near future. Counsel for the OP No.1 has relied upon clauses 10(a) and 10(c) of the Flat Buyers Agreement, which read as under:
10(a) Construction of the Flat is likely to be completed within a period of thirty six (36) months from the date of commencement of construction of the particular Tower in which the Flat is located, on receipt of sanction of building plan/revised building plan and approvals of all concerned authorizes including the Fire Service Deptt., Civil Aviatio Deptt., Traffic Deptt., Pollution Control Deptt., as may be required for commencing and carrying on construction subject to force majeure, restraints or restrictions from an Court/authorities, non-availability of building material, dispute with contractors/work force etc. and circumstances beyond the control of the Developer and subject to timely payment by the Flat Buyers. No claim by way of damages/compensation shall lie against the Developer, in case of delay in handing over possession on account of the said reasons. The date of submitting application to the concerned authorities for issue of completion/part completion/occupancy/part occupancy certificate of the Complex shall be treated as the date of completion of the Flat for the purpose of this Clause/Agreement.
10(b) ..
10(c) In case of delay in construction of the Flat beyond the period as stipulated subject to force majeure and other circumstances as aforesaid under sub clause (a) above, the Developer shall pay to the Buyer compensation @Rs.53.80/- per sq. meter or @Rs.5/- per sq. f.t of the super area of the flat per month for the period of delay. Likewise if the Buyer fails to settle the final account and to take posesison of the Flat within 30 days from the date of issue of the final call notice/offer to hand over possession by the Developer, the Buyer shall be liable to pay to the Developer holding charges @Rs.53.80/- per sq. mtrs or @Rs.5/- per sq. ft. of the super area of the flat per month on expiry of 30 days notice.
8. The sole defence taken by the OP No.1 is that it was a global recession that hit the Indian economy and for this reason he could not go ahead with the construction. He has referred to it as force majeure (Dictionary meaning, Superior or overpowering force). On the contrary the complainant has placed on record Q1FY10 and Q2FY10/H1FY10 results of OP No.1. As per these results OP No.1 showed its posting revenue of Rs.118.67 crore on 30.07.2009, showing a change of 392.61% over the previous quarter. Result dated 14.10.2009 indicates a change of 69.16% over the previous quarter. OP No.1 has admitted the correctness of the aforesaid data. In such a situation it cannot be held that OP No.1 was in any case affected by any recession in the global economy during the relevant period.
9. As referred to above the construction of the flat has not been completed even after a period of six years. The complainant had admittedly deposited a sum of Rs.21,48,592/- by 04.06.2008. OP No.1 has failed to show if the amount received from the complainant had been utilized for construction of the flat. There is no dispute with the proposition that OP No.1 utilised the said money for the purpose other than the purpose of construction in dispute. It is a clear case of unfair trade practice. We are, therefore, left with no option but to hold that OP No.1 has been highly unreasonable in not handing over the possession of the flat to the complainant within a reasonable period of time. OP No.1 is, therefore, directed to refund to the complainant Rs.21,48,592/- deposited by the complainant alongwith interest @12% per annum from the date of deposit till the date of its realization. Besides this, OP No.1 shall be liable to pay compensation to the tune of Rs.50,000/- alongwith litigation expenses of Rs.10,000/- to the complainant within a period of 30 days from the date of this order. In case the Compensation and the Costs of litigation are not paid within the stipulated period the OP No.1 shall be liable to pay interest @10% per annum thereon from the date of this order till the date of realization.
10. A copy of this order be provided to the parties as per rules. File be consigned to Record room.
Announced on 02nd day of December 2013.
(Salma Noor) Presiding Member (N P Kaushik) Member (Judicial) Tri