State Consumer Disputes Redressal Commission
Smt. Lalita Devi Goyal vs M/S Parsvnath Developers Ltd. & Anr. on 11 May, 2023
C.No. 516/2018 D.O.D.: 11.05.2023
MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 26.04.2018
Date of hearing: 01.02.2023
Date of Decision: 11.05.2023
COMPLAINT CASE NO.- 516/2018
IN THE MATTER OF
1. MS. LALITA DEVI GOYAL,
W/o Mr. Radha Kishan Goyal,
R/o- Flat No. 5, Bhagirathi Apartments,
Sector-9, Rohini, Delhi-110085.
2. MR. SUNIL GOYAL,
S/o Mr. Devki Nandan Goyal,
3. MR. SHYAM BIHARI GUPTA,
Both R/o Flat No. 5, Bhagirathi Apartment,
Sector-9, Rohini, Delhi-85.
(Through: J.K. Gupta, Advocate)
...Complainants
VERSUS
1. M/S PARSVNATH DEVELOPERS LTD.,
2. THE MANAGING DIRECTOR,
Both at: 6th Floor, Arunachal Building,
19, Barakhamba Road, New Delhi-110001.
ALSO AT:
Parsvnath Metro Tower,
Near Shahdara Metro Station, Shahdara, Delhi-32.
(Through: Rakesh Bhardwaj & T.P. Chauhan, Advocate)
...For Opposite party no. 1 & 2
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C.No. 516/2018 D.O.D.: 11.05.2023
MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Ms. Shitanshu, proxy counsel for Mr. Gagan Mathur,
counsel for the Complainant.
Ms. Deepshikha, counsel for the Opposite Party
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed under Section 17 of Consumer Protection Act, 1986 by the Complainants before this Commission alleging deficiency of service and unfair trade practice by the Opposite Party No. 1-2 and has prayed the following relief:
a) "Directing the Respondent No.1 and 2 to deliver the possession of the plot bearing No. B-3302, Block-B, measuring 419.73 sq. mtrs. in the Parasvnath City, Sonepat, Haryana;
b) Award interest @24% p.a. ;
c) Award cost of the litigation;
d) Direct to pay the damages for mental agony to the tune of Rs.20 lacs to the Complainant and performa Respondents;
e) In the alternate if the Respondent No. 1 and 2 failed to deliver the possession of the said plot then the Hon'ble Commission may please be directed the Respondent No.1 and 2 to pay the amount of Rs.34,82,625/- with ALLOWED PAGE 2 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
interest @ 24% p.a. from 30.07.2011 till the realization;
f) Any other further order/relief may deem fit in the facts and circumstances of the case may also be passed in favour of the Complainant and against the Respondent No.1 and 2."
2. Brief facts necessary for the adjudication of the present complaint are that the Complainants booked a plot bearing No. B-3302, Block-B, measuring 419.73 sq. yards situated in Parasvnath City, Sonepat, Haryana for a sale price of Rs.26,35,500/-. Complainants paid Rs.9,27,675/- towards the basic cost and Rs.67,150/- towards the external development charges to the Opposite Party No.1&2. A plot buyer agreement dated 15.09.2011 was executed between Complainants and Opposite Party No.1-2.
3. The Complainants had paid a sum of Rs.34,82,625/- as demanded by the Opposite Party No.1&2. Further, as per the payment plan, the remaining 5% amount was to be made by the Complainants at the time of handing over of possession. However, till date neither the physical possession of the plot has been handed over to the Complainants nor there was any development in the said area till 30.08.2017. The Complainants served legal notice dated 30.08.2017 and requested Opposite Party No.1&2 to handover the possession of the said plot but was of no avail. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainants approached this Commission.
4. The Opposite Party No.1&2 has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party submitted that ALLOWED PAGE 3 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
the Complainants are not a „consumer‟ under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. He further submitted that the Complainants have no cause of action to file the present complaint. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party No.1&2prayed that the complaint should be dismissed.
5. The Complainants have filed the Rejoinder rebutting the written statement filed by the Opposite Party No.1&2. Thereafter, both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. Before delving into merits of the case, we find an Application under Order 1 Rule 10 read with Section 151 of CPC filed by the Complainants pending for consideration. The Complainants have filed the said application for transposition of the Opposite Party No.3&4/Performa Respondents as the Complainant No. 2&3. The counsel for the Complainants submitted that he impleaded the Complainant No.2&3 namely Mr. Sunil Goyal and Mr. Shyam Bihari Gupta as Opposite Party No.3&4/Performa Respondents as they were not available for signing the complaint.
8. Reply to the present application has been filed by the Opposite Party No.1&2.
9. On perusal of record, we find that the Opposite Party No.3&4/Performa respondents namely Mr. Sunil Goyal and Mr. Shyam Bihari Gupta had jointly booked a plot with the Opposite ALLOWED PAGE 4 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
Party No.1&2 which is evident from the Plot Buyer Agreement dated 15.09.2011 and have together paid Rs.34,82,625/- to the Opposite Party No.1&2 for the purchase of the plot bearing No. B- 3302, Block B in „Parsvnath City‟ situated in Sonipat, Haryana. Therefore, the Complainant and the Opposite Party No.3&4/Performa Respondents have the same and identical interest in respect of the plot in question in the present complaint case. In order to avoid any technical objection, the Opposite Party No.3&4/Performa Respondents namely Mr. Sunil Goyal and Mr. Shyam Bihari Gupta are impleaded as the Complainant No. 2&3. Consequently the present application filed by the Complainant stands allowed.
10. Returning to the facts of the present case, the Complainants had booked a plot with the Opposite Parties is evident from the plot buyer agreement dated 15.09.2011. Payment to the extent of Rs.34,82,625/- has been made by the Complainants to the Opposite Party No.1&2 is evident from the receipts/Customer Ledger Statement annexed with the present complaint.
WHETHER COMPLAINANTS FALL IN THE CATEGORY OF 'CONSUMER' UNDER THE CONSUMER PROTECTION ACT, 1986?
11. The Opposite Party No. 1&2 contended that the Complainants are not a "Consumer" as defined under the Consumer Protection Act, 1986 as they invested the money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate ALLOWED PAGE 5 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
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 in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
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."
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MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
12. From the aforesaid dicta of the Hon‟ble National Commission, it flows that it is for the Opposite Party to prove that the plot purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainants.
13. In the present case, the Opposite Party No.1&2 has merely made a statement that the Complainants purchased the plot for commercial purpose and on perusal of the record before us, we fail to find any material which shows that the Complainants are 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 flats. 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 Party is answered in the negative.
WHETHER THE COMPLAINANTS HAVE CAUSE OF ACTION TO APPROACH THIS COMMISSION?
14. The question for adjudication before us is whether the Complainants have any cause of action to approach this Commission. The facts reveal that the Plot Buyer Agreement was executed between the parties on 15.09.2011, wherein the development of the said plot was to be completed by the Opposite Party No.1&2. The possession of the said plot was to be handed over by the Opposite Party No.1&2 after receiving entire payment from the Complainants. However, the possession of the said plot has not been handed over to the Complainants till date.
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MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
15. 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."
16. Applying the above settled law, it is clear that the Complainants are within their right to file the present complaint as the possession has not been handed over till date and the development in the said area for demarcation of plot has not seen the light of the day; giving the Complainants a recurrent cause of action to file the present complaint.
WHETHER THE OPPOSITE PARTY No. 1&2 ARE LIABLE FOR DEFICIENCY IN SERVICE
17. Having discussed the preliminary objections raised on behalf of the Opposite Party No.1&2, the last issue which arises is whether the Opposite Party No.1&2 was actually deficient in providing its services to the Complainants.
18. 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 ALLOWED PAGE 8 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
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. 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. At this stage, we deem it appropriate to mention here that only plot buyer agreement has been executed between the Opposite party and Complainants. Be that as it may, the fact remains that admittedly the Complainants have paid a huge amount of ALLOWED PAGE 9 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
Rs.34,82,625/- i.e. full and final consideration towards the sale price of the plot in question but neither the possession has been delivered, nor the amount deposited by the Complainants has been refunded till date.
20. It has been well settled that the Complainants cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
21. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainants as the Opposite Party had given false assurance to the Complainants with respect to the time for delivery of possession of the plot and had kept the hard earned money of the Complainants.
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 Complainants i.e., Rs. 34,82,625/- 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 Parties till 11.05.2023 (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 Parties pays the entire amount on or before 11.07.2023; C. Being guided by the principles as discussed above, in case the Opposite Parties fails to refund the amount as per the ALLOWED PAGE 10 OF 11 C.No. 516/2018 D.O.D.: 11.05.2023 MS. LALITA DEVI GOYAL & ORS. Vs. M/S. PARASVNATH DEVELOPERS LTD. &ORS.
aforesaid clause (A) on or before 11.07.2023, 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.
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. 2,00,000/- as cost for mental agony and harassment to the Complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
24. Applications pending, if any, stand disposed off 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) Pronounced On:
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