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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President
Kamal Malhotra – Complainant
versus
Parsvnath Developers Limited – Opp. Party
Consumer Case No.2954 of 2017
Decided on 11.11.2021
Consumer Protection Act, 1986 – S. 21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Delay in handing over possession of flat – Contention raised by opposite party that Complainant is not a ‘Consumer’ and that the subject flat was booked for investment purpose – onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to the Opposite Party, which in the instant case the Opposite Party Developer had failed to discharge by filing any documentary evidence to establish their case – Therefore, Complainant is a ‘Consumer’ as defined under Section 2 (1)(d) of the Act. [Para 8]
(ii) Consumer Protection Act, 1986 – S. 21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Delay in handing over possession of flat – Flat Byer Agreement – Clause 10(c) providing that in case of delay the Opposite Party Developer is liable to pay Rs.5/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, whereas in terms of Clause 15 (a) in case of late payment, the Complainant/Buyer is liable to pay interest @24% p.a – terms of the Apartment Buyer’s Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms. [Para 10]
(iii) Consumer Protection Act, 1986 – S. 21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Delay in handing over possession of flat – Global recession – if a ground for delay in project – delay in Project due to global recession in the market is concerned, the terms of the Agreement between the parties do not justify the delay in completion of the Project on the aforesaid ground and therefore, the Opposite Party was duty bound to complete the construction irrespective of the recession in the market.Therefore, the delay in completion of the Project cannot be justified. [Para11]
(iv) Consumer Protection Act, 1986 – S. 21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Delay in handing over possession of flat – Right to seek refund of of the amounts paid with reasonable interest – Complainant cannot be made to wait indefinitely for possession of the flat, as the construction is not completed – Therefore, Complainant is entitled for refund of the principal amount with reasonable interest, which is quantified @9% p.a. from the date of respective date of deposit till the date of actual refund, Opposite Party Developer is directed to refund Rs.50,23,483/- (Rupees Fifty Lakhs Twenty Three Thousand Four Hundred and Eighty Three only) to the Complainant alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund within 6 weeks from the date of passing of this Order. [Paras 13 & 14]
ORDER
R.K. Agrawal, President.—The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Kamal Malhotra (hereinafter referred to as the Complainant) against Opposite Party, M/s. Parsvnath Developers Limited (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of “Parsvnath Privilege” located at Plot No. 11, Section Pi, Greater Noida, Uttar Pradesh.
2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of ‘Parsvnath Privilege’ located at Plot No. 11, Sector Pi (Chorosia Estate), Greater Noida, UP. The Complainant booked a residential flat for his personal use in the said Project in the year 2006. Flat No. T7-1401, Tower No. 7 having an super area 1855 sq. ft. was allotted to the Complainant at a basic sale price of Rs.56,83,256/-. Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 26.06.2007.As per Clause 10(a) of the Agreement, the construction of the said flat was to be completed within 36 months from the date of commencement of construction of a particular block in which flat is located. Vide letter dated 10.06.2010, the Opposite Party Developer informed the Complainant about Re-Scheduling of Construction Plan and assured that the Project would be completed by March 2012.In the year 2012, the Developer offered the Complainant to switch its allotted flat, i.e., Flat No. 1401 in Tower T7 to Flat No. 1401 in Tower 17, which the Complainant accepted in the hope of getting the flat sooner. However, the pace of construction in Tower 17 was also very slow and in similar situation as that of the earlier tower where the Complainant had originally booked his Flat. The Complainant had opted for Construction Linked Payment Plan and had deposited Rs.50,23,484/- on different dates between the year 2006 and 2015 as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period. It is averred by the Complainant that the construction at the site remained at a standstill till the date of filing of the Complaint even after almost 7 years from the date of booking of the Flat. The Project is still incomplete and the Developer has even not received the Occupancy Certificate. He has no trust on the Opposite Party Developer and is no longer interested in having possession of the Flat. It was also averred in the Complaint that he has suffered loss of opportunity as the prices of the Flats have increased many times since the year 2007 and the Developer is indulged in unfair trade practice by offering merely Rs.5/- per sq. ft. per month as penalty for delay in handing over possession to the Complainant while they are charging 24% interest for delayed payments from the Complainant. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainant has filed the present Consumer Complaint with the following prayer:
a) Grant a sum of Rs. 1,12,81,796/- towards entire amount paid to the Opposite Party Rs.50,23,483/-; alongwith compensation in the form of interest @18% per annum Rs.62,58,313/- as calculated upto 30.09.2017, or such amounts at the same rate of 24% per annum which is being charged by the Opposite Party, alongwith pendent lite and future interest, till the date of actual realisation of the payment.
b) Grant cost of Litigation to the Complainant;
c) Any other Order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the Complainant and against the Opposite Party.”
3.
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