State Consumer Disputes Redressal Commission
Harvinder Singh & Anr. vs M/S Parsvnath Devlopers Ltd. on 2 December, 2022
C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution : 28.02.2017
Date of Reserving the order : 02.11.2022
Date of Decision : 02.12.2022
C No. 341/2014
IN THE MATTER OF
1. Mr Harvinder Singh
S/o Late Sh. Saudagar Singh
2. Mr Baljinder Singh
S/o Late Sh. Saudagar Singh
Both R/o WZ-283/346
Vishnu Garden Extension, Khayala,
New Delhi-110018
(Through: Mr. Mukesh Gahlot, Advocate)
.....Complainant
VERSUS
1. Parsvnath Developers Limited
(Through its Chairman)
6th Floor, Arunachal Building,
19, Barakhamba Road,
New Delhi-110001
Also at
Parsvnath Metro Tower,
Near Shahdara Metro Station,
Shahdara, Delhi-110001
(Through: Ms. Deepshikha Mishra, Advocate)
.....Opposite Party
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C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022
HON'BLE MS. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Mr Mukesh Gahlot, counsel for the complainant
Ms Deepshikha Mishra, counsel for the opposite party.
BIMLA KUMARI, MEMBER (FEMALE)
ORDER
1. The complainants Mr Harvinder Singh and Baljinder Singh have filed the present complaint against the opposite party alleging deficiency of service on the part of opposite party as per provisions of Consumer Protection Act, 1986.
2. It is the case of complaints that they had booked one residential flat bearing no. SA- 201, Second Floor in the project of opposite party namely 'Parsvnath City Centre Bhiwadi' on 01.02.2007 and paid three installments, as per demand of the opposite party. The Builder Buyer Agreement Annexure-A was executed between the parties on 06.07. 2007 and by that time they had paid a sum of rupees 10,28,527/-, to opposite party and chose the time linked payment plan. The total cost of the flat was rupees 29,38,824/- with a discount of 2% of the total cost of the flat. After executing the said agreement, they enquired from the opposite party from time to time about the progress of the project. The opposite party always made assurances that the construction work of the project was running very smoothly and always advised them to make the payment, as per schedule. The complainants believed the version of the opposite party and paid a total sum of Rs. 27,91,553/- to the opposite party till Allowed PAGE 2 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 23.12.2008. The receipt issued by the opposite party in this regard are annexed as Annexure-B (Colly).
3. It is the further case of the complainants that after making the aforesaid payment, they visited the office of the opposite party as well as the site to find out the actual position of the construction of the project but were surprised to know that construction had not even started. The opposite party assured the complainants that the work of the project would commence very soon and the possession of the flat would be handed over by the opposite party on or before 2012. The Opposite party also issued a letter dated 04.05.2010 Annexure-C, wherein it was mentioned that they had planned the commencement of the project within 2- 3 months and would make all out efforts to complete the project within 12 months. The complainants believed the version of the opposite party and waited for a long. In the end of 2012, the complainants made further enquiry from the office of the opposite party about the developments and the progress of the construction of the project but they were always assured by the opposite party that the work was going on and the possession of the flat would be handed over within few months.
4. It is the further case of complainants that in the month of March 2014, they visited the office of the opposite party, wherein they were again assured that the construction of the project would be starting very shortly and the opposite party would intimate the complainants in that regard. On 06.02.2016 the complainants received a letter along with one booklet and were informed that one sample service apartment was ready and if they were interested, they could see the same by paying visit to the site. The opposite party in that letter referred two bedroom service Allowed PAGE 3 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 apartment with attached toilet, though the complainants had booked a three bedroom flat, as per agreement. Thus, there was clear violation of the agreement on the part of the opposite party. The opposite party had no intention to hand over the said flat to the complainants, which amounts to deficiency of service and unfair trade practice.
5. It is the further case of complainants that they served a legal notice dated 31.01.2017 (Annexure-E) and called upon the opposite party either to hand over the physical position of the flat or to refund the amount of Rs. 27,91,553/- along with interest @ 21% p.a. from the date of payment till realization and Rs. 20 Lakhs on account of suffering towards mental torture, harassment and monetary loss and Rs. 50,000/- towards litigation costs.
6. The opposite party has filed its written statement, wherein, it has admitted that a residential flat SA-201 was allotted to the complainants. It also admitted that an agreement was also executed between the complainants and the opposite party on 11.10.2007. The complainants are not entitled to any relief as they themselves were at default and failed to make the payment as per payment plan and substantial amount is still due and is not paid by the complainants.
7. The opposite party took the preliminary objections that the complainants made investment in the real estate for commercial purpose and they are not 'consumers' as per provision of Consumer Protection Act, 1986. The Complaint has been filed without any cause of action as complainants are not able to establish any 'deficiency of service'. The complaint involves complicated questions of facts and law, which needs to be proved by leading detailed oral as well as documentary Allowed PAGE 4 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 evidence. This Forum has no jurisdiction to entertain the present complaint. The complaint is time barred as the same has not been filed within a period of 2 years from the date of cause of action.
8. The complainants have filed their rejoinder to the written statement of the opposite party, wherein they have reaffirmed and reiterated the facts mentioned by them in their complaint.
10. The complainants have filed the evidence by way of affidavit of complainant no.1, Mr Harvinder Singh and affidavit of complainant no.2, Mr Balvinder Singh.
11. Opposite party has also filed the evidence by way of affidavit of Madan Lal Dogra, Deputy General Manager (CRM) with opposite party.
12. Both the parties have filed their written submissions.
13. We have gone through the material on record.
14. First of all, we shall deal with the preliminary objections of party.
15. Whether the complainants are not consumers.
16. In Aashish Oberai Vs Emaar MGF Land LimitedI (2017) CPJ 17(NC) it was inter-alia held as under:
"A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or Allowed PAGE 5 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 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".
Further, in Narinder Kumar Bariwal and Ors.
Vs. Ramprastha Promoters and Developers Pvt. Ltd. And Ors,CC- 1122/2018decided on 01.11.2019, it was inter-alia held by Hon'ble National Commission as under:
"The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavita Ahuja Vs Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(I)(d) of the Act."
17. In the present case also, the opposite party has not placed on record any material to show that the complainants had Allowed PAGE 6 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 purchased the flat to earn profits by selling the flat or that the complainants are engaged in the business of purchasing or selling houses or flats on regular basis. Mere allegations that the complainants purchased the flat for commercial purpose cannot be a ground to reject the complaint. Consequently, the objection raised by the opposite party is answered is negative.
18. Whether the case involves complicated questions of facts and law, which cannot be decided by this Commission.
In J.J. Merchant Verus Shrinath Chaturvedi (2002) 6 SCC 635 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, consumers 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 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 Allowed PAGE 7 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 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."
19. In the present case, we are of the considered view that no complicated questions of facts and law are involved in the present case, as the complaint filed by the complainants comes under the 'housing category" only. Further, complicated question of facts and laws can be decided by this commission in view of the judgment cited above.
20. Accordingly, this contention of the opposite party is also answered in negative.
21. Whether this commission has jurisdiction to entertain the present complaint.
In Rohit Srivastava Vs. Paramount Villas Ltd. 017 SCC OnLine NCDRC 1198, it was inter-alia held as under:
"Having heard Learned Counsel for the parties at some length, we are of the opinion that the order cannot be sustained. It is not in dispute that the Registered Office of Opposite Party No 1 Company is situated in Delhi, i.e. within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2) (a), which stipulates that a Complaint can be instituted Allowed PAGE 8 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint. In the light of the said provision, in our view, it was open to the Complainant to choose the Forum to file the Complaint, which on the second occasion he decided to file before the State Commission at Delhi."
22. In the present case, the opposite party has its registered office in Delhi, wherein the complainants have booked the flat. Further, the Agreement Serviced Apartment, Annexure-A page 34 of complaint was also executed between the complainants and the opposite party in Delhi. In these circumstances, we are of the considered view that this Commission has jurisdiction to entertain the present complaint. Hence, this contention of the opposite party no.1 is also answered in negative.
23. Whether the complaint is time barred .
24. The Opposite Party has contended that the present complaint is barred by limitation as per Section 24A of the Consumer Protection Act, 1986.
25. Section 24A of the Consumer Protection Act, 1986, is reproduced here for ready reference:
24A. Limitation period.--
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed Allowed PAGE 9 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 within two years from the date on which the cause of action has arisen.
26. Further, in Mehnga Singh Khera and Ors. Vs. Unitech Ltd. I (2020) CPJ 93 (NC), 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."
27. Relying on the above settled law, it is clear that failure to deliver possession being a continuous wrong constitutes a recurrent cause of action in favour of the buyer and therefore, till the time possession is not delivered to the Complainant, he is within right to file the present complaint before this commission.
28. In the present case, the possession of flat in questin has not been delivered by the opposite party to the complainants. In these circumstances, we are of the considered view that the complaint is not barred by limitation as per Section 24A of the Act.
29. Whether there is no 'deficiency of service' on the part of opposite party and the complaint has been filed without any cause of action.
30. In Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors.2020 (3) RCR (Civil) 544, it has been held as under:
Allowed PAGE 10 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 "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) (0) 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 Allowed PAGE 11 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 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 fulfillment of a contractual obligation.
31. In the present case the booking of the flat was done by the complainants on 01.02.2007. The Builder Buyers agreement Annexure-A was executed between the parties in the year 2007. As per clause 11(a) of the Agreement, the construction of the complex was to be completed within a period of 30 months from the date of commencement of the construction on receipt of sanction of building plans and all other approvals. However, the commencement of the construction complex could not be carried out by the opposite party till 2010 as it is clear from the letter dated 04.05.2010 (Annexure-C) issued by the opposite party to the complainants. It is worth noting that the complainants believed the assurances given by the opposite party and waited for a long and ultimately, they visited the office of the opposite party in March 2014 where they were again assured by the opposite party that the construction of the project would be started very soon and it will intimate them about the same. However, the construction of the project was not started by the opposite party and till 2016 as the complainants received a letter dated 06.02.2016 from the opposite party wherein they were informed that a sample flat was ready and they could see the same by paying visit to the site. It is further worth noting that the complainants had booked a 3 bedroom flat in the project of opposite party but by this letter dated 06.02.2016, they were offered a 02 bedroom flat in violation of the terms of the Agreement Allowed PAGE 12 OF 15 C-341/2017 HARVINDER SINGH & ORS VS PARSVNATH DEVELOPER LTD. D.O.D.:02.12.2022 Annexure-A. It is note worthy that till date the opposite party is not able to place on record any material to show that the construction of the project is over and flat is ready to be handed over to the complainants.
32. In these circumstances, we are of the considered view that there is 'deficiency of service' on the part of the opposite party and it cannot be said that complainants have filed the complaint without any cause of action.
33. In Fortune Infrastructure & Anr Vs Trevor D. Lime & ors, 3(2018) 5 SCC 442, it was inter-alia as under:
"A person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek return of the amount paid by him, along with compensation."
34. In the present case, the complainants have prayed for directions to the opposite party to hand over the flat or to refund their amount along with interest @ 18% per annum.
35. In the present case, the opposite party is not able to hand over the possession of the flat to the complainant. Thus, we are of the considered view that the complainants are entitled for the refund of amount. Further the complainants have demanded interest @ 18% p.a. However, we are of the considered view that the said rate of interest is on the higher side. Accordingly, the opposite party is directed to refund the sum of Rs. 27,91,553/- with interest as per following arrangements:
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36. An interest @ 6% p.a. calculated from the
date on which each installment/payment was received by the Opposite Party till 02.12.2022 (being the date of the present judgment);
A. 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 01.02.2023.
B. 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 01.02.2023, 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 no. I till the actual realization of the amount.
37. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to further 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/-.
38. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
39. 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.
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40. File be consigned to record room along with a copy of this Judgment.
(RAJAN SHARMA) Member (Judicial) (BIMLA KUMARI) Member (Female) PRONOUNCED ON 02.12.2022 Allowed PAGE 15 OF 15