State Consumer Disputes Redressal Commission
Smt. Sarika Gupta vs M/S Parsvnath Developers Ltd. & Anr. on 29 November, 2023
CC NO. 785/2018 D.O.D.: 29.11.2023
MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 20.06.2018
Date of Hearing: 10.04.2023
Date of Decision: 29.11.2023
COMPLAINT CASE NO.- 785/2018
IN THE MATTER OF
MRS. SARIKA GUPTA,
W/O SH. SATPAL GUPTA,
R/O E-1/56, SECTOR - 7, ROHINI, DELHI.
(Through: Mr. Vikas Gupta, Advocate)
...Complainant
VERSUS
1. M/S. PARSVNATH DEVELOPERS LTD.,
THROUGH ITS CHAIRMAN: MR. PRADEEP KUMAR JAIN
2. MR. PRADEEP KUMAR JAIN, CHAIRMAN,
M/S PARSVANTH DEVELOPERS LTD.,
HAVING CORPORATE OFFICE AT:
6TH FLOOR, ARUNACHAL BUILDING,
19, BARAKHAMBA ROAD, NEW DELHI-110001.
ALSO AT:
PARSVNATH METRO TOWER,
NEAR SHAHDARA METRO STATION,
SHAHDARA, DELHI-110032.
(Through: KNM & Partners)
...Opposite Parties
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CC NO. 785/2018 D.O.D.: 29.11.2023
MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL, (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. S.K. Gupta and Mr. Himanshu Gupta, counsel for the
Complainant.
None for the Opposite Parties.
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 and unfair trade practice by the Opposite Parties and has prayed the following reliefs:
a) Refund of Rs. 11,00,000/-
b) Interest @24% from 2005 which approximately comes to Rs. 2,64,000/- X 13 years which is equal to Rs. 34,32000/-(approx).
c) Mental torture, pain, agony suffering and set back suffered of Rs. 2,00,000/-
d) Legal cost of Rs. 1,50,000/-
OR IN ALTERNATE
a) to direct the respondents to execute the regular sale deed in respect of the plot measuring 400 sq. yds at Parsvnath Near Tau Devi Lal Park, Sonepat Phase-II, Haryana in favour of the complainant before competent authority/ Registrar and handover the physical and vacant possession of the residential plot to the complainant or refund the deposited amount i.e. RS.
11,00,000/- (Rs. Eleven Lakh ONLY) alongwith interest @ 24 % PA since the date of booking ie. 21.02.2005 till the realization of payment to the complainant.
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MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
b) To Direct the respondents to pay the monthly penalty to the complainant for delay in handing over the residential plots in Parsvnath City, Sonepat, Phase-II, Haryana, from March 2008 till the handing over of plots, as determine by this Hon'ble Commission.
c) To Direct the respondents to pay the escalation cost of construction and plot as per the PWD rates determine by this Hon'ble commission for 13 years.
d) To direct the respondents to produce the complete records of booking of the plot measuring 400 sq. yds, with sanctioned, approved lay out plan, license, other necessary permission etc, etc. for completing the sale transaction under the Present and Future Projects, in Parsvnath City situated at Near Tau Devi Lal Park, Sonepat Phase-II, Haryana.
e) To direct the respondents to pay a sum of Rs.2,00,000/- on account of mental torture, pain, agony, suffering and set back suffered by the complainant and also on account of deficiency of service rendered by the respondents.
f) To Direct the respondents to pay a sum of Rs. 1,50,000/- on account of litigation fees.
g) Any other order/ relief/ direction may also kindly be passed in favour of the complainant and against the respondents as this Hon'ble commission may deems fit, just and proper according to the facts and circumstance of the case."
2. Brief facts necessary for the adjudication of the present complaint are that in the year 2005, the Complainant booked a residential plot in respect of "Present and Future Project" in Parsvnath City, near Tau Devi Lal Park, Phase-II, Sonepat, Haryana and paid a sum of Rs. 5,75,000/- to the Opposite Parties at the time of booking. Thereafter, the Complainant has made another ALLOWED PAGE 3 OF 13 CC NO. 785/2018 D.O.D.: 29.11.2023 MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
payment of Rs. 5,25,000/- to the Opposite Parties as advance against the said plot. Further, at the time of booking, the Opposite Parties had assured that they shall develop, construct and handover the possession of residential plots within the stipulated period of 36 months. However, the Opposite Parties failed to deliver the possession of the said plot till date to the Complainant and also failed to refund the entire amount along with interest. Further, the Complainant had visited the site on several occasions and also visited the office of the Opposite Parties to know about the progress of the aforesaid project and found that no construction has been carried out by the Opposite Parties over the said land. The Complainant also served a legal notice dated 21.03.2017 thereby calling the Opposite Parties to handover the physical possession of the plot or to refund the already paid amount along with interest but was of no avail. Therefore, alleging deficiency of service on the part of the Opposite Parties, the Complainant approached this Commission.
3. The Opposite Parties have contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Parties contended that the present complaint is time barred in accordance to section 24A of Consumer Protection Act, 1986 and no cause of action has been arisen against the Opposite Parties. The Opposite Parties further contended that the Complainant is not 'consumer' under the Consumer Protection Act, 1986 as the said plot has been purchased by the Complainant for investment purpose. The counsel for the Opposite Parties lastly contended that the present complaint involves complicated question of facts and law, which require detail examination and cross examination of witnesses and the same cannot be adjudicated in a summary procedure before this Commission. Pressing the aforesaid contentions, the counsel appeared on behalf of the Opposite Parties prayed that the present complaint should be dismissed.
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4. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Parties. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
5. We have perused the material available on record and heard the counsel for the parties.
6. The fact that the Complainant has paid an amount of Rs. 11,00,000/- to the Opposite Party no. 1 as advance payment for the allotment of the plot is evident from the receipts issued by the Opposite Parties (Annexure C-2 & C-3 of the complaint).
7. The first question for consideration before us is whether the Complainant has cause of action to approach this Commission. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986 wherein it is provided as under:-
"24A. Limitation period.-
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the Complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint as this such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
8. Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that this Commission is empowered to admit a complaint if it is filed within a period of two years from the date on which cause of action has arisen. It is clear in the present case that the Opposite Parties till date has ALLOWED PAGE 5 OF 13 CC NO. 785/2018 D.O.D.: 29.11.2023 MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
failed to allot the plot as well as failed to handover the possession of the plot to the Complainant. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. as reported in I (2020) CPJ 93 (NC), wherein the Hon'ble National Commission has held as under:
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts."
9. Applying the above settled law, it is clear that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action and, therefore, so long as the legal possession is not delivered to the Complainant, the Complainant is within their right to file the present complaint before this Commission.
10. The next question for consideration before us is whether the Complainant falls under the category of 'consumer' under the Consumer Protection Act, 1986. The Opposite Parties contended that the Complainant invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. .......A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that ALLOWED PAGE 6 OF 13 CC NO. 785/2018 D.O.D.: 29.11.2023 MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
11. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
12. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Parties to prove that the plot was purchased for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant.
13. In the present case, the Opposite Parties have merely made a statement that the Complainant purchased the plot for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such plots. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Parties is answered in the negative.
14. The next question for consideration is whether the present complaint involves complicated question of facts and law, which should be decided ALLOWED PAGE 7 OF 13 CC NO. 785/2018 D.O.D.: 29.11.2023 MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
by the civil court. The Opposite Parties contended that the jurisdiction of this Commission would be barred since the present complaint is in fact a suit for recovery on which court fees is payable and would lie in a Civil Court and the Complainant in order to save the payment of court fees has filed the complaint under the Consumer Protection Act, 1986. Moreover, the complicated question of facts and law which have been raised in the present complaint can only be decided before the Civil Court.
15. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are affected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
16. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2) (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;"
17. Returning to the facts of the present complaint, the perusal of the record shows that the Complainant avail the services of the Opposite Parties for a consideration. However, the Opposite Parties failed to allot or handover the possession of the said land/plot, aggrieved by which, the Complainant has sought refund of the amount paid by him. 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 Parties i.e., the failure of the Opposite Parties to handover the possession of the said land and it is only due to this reason, that the refund of the amount paid is sought from the Opposite Parties, which this Commission is authorised to adjudicate.
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18. Having discussed the preliminary objections raised on behalf of the Opposite Parties, the last question for consideration before us is whether the Opposite Parties are deficient in providing its services to the Complainant. 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 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.
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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.
19. On perusal of record, we do not find any document/ evidence which shows us the stipulated time within which the possession of the said land was to be handed over by the Opposite Party no.1. However, it is appropriate to refer to the recent pronouncement of Hon'ble National Commission in First Appeal no. 348/2016 titled as "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." decided on 10.05.2019, 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."
20. The aforesaid dicta make it clear that if the possession is delivered beyond 42 or 48 months by the builder, then the deficiency on the part of the builder stand proved. In the present case, the Opposite Parties neither provided any ALLOWED PAGE 10 OF 13 CC NO. 785/2018 D.O.D.: 29.11.2023 MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
allotment letter to the Complainant nor handed over the possession of the said land/plot till date. Therefore, the deficiency on the part of the Opposite Parties stands proved.
21. In view of the present facts and circumstances, it is clear that the amount deposited by the Complainant in the present matter has been utilized by the Opposite Parties, for their own benefit and on the other hand, the Complainant was not provided anything in return. The circumstances clearly show that the Opposite Parties made false representation of facts about the upcoming project in question at Sonepat, Haryana. The act and conduct of the Opposite Parties are clear case of misrepresentation and cheating against the consumers, which resulted in the injury and loss of opportunity to the Complainant. Lastly, we find that the Complainant had filed the Registration form dated 21.02.2005 in which the clause (f) reflects that:
"(f) Though the company shall try to make an allotment but in case it fails to do so for any reason whatsoever, no claim of any nature, monetary or otherwise would be raised by me/us except that the advance money paid by me/us shall be refunded to me/us with 10% simple interest per annum."
22. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Parties to refund the entire amount paid by the Complainant i.e., Rs.11,00,000/- along with simple interest as per the following arrangement:
A. An interest @ 10% p.a. (as mentioned in the Registration form dated 21.02.2005) calculated from the date on which each installment/payment was received by the Opposite Parties till 29.11.2023 (being the date of the present judgment);
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B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Parties pays the entire amount on or before 29.01.2024;
C. Being guided by the principles as discussed above, in case the Opposite Parties fails to refund the amount as per the aforesaid clause (A) on or before 29.01.2024, the entire amount is to be refunded along with an interest @ 12% p.a. calculated from the date on which each installment/payment was received by the Opposite Parties till the actual realization of the amount.
23. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Parties are 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/-.
24. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
25. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
26. 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) ALLOWED PAGE 12 OF 13 CC NO. 785/2018 D.O.D.: 29.11.2023 MRS. SARIKA GUPTA VS. M/S PARSVNATH DEVELOPERS LTD.
Pronounced On:
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