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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President
Atul Kaila and Anr. – Complainants
versus
Parsvnath Developers Ltd. – Opp. Party
Consumer Case No.574 of 2015
Decided on 18.11.2021
Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Flat Buyer Agreement – Alleged delay in handing over possession of flat – Refund of boking amount sought – Complaint filed – As per Clause 10(c) of the Flat Buyer Agreement, 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 – Validity of Agreement – On facts, terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement, which is one-sided and unfair. Hon’ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), held, A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.The Builder cannot seek to bind the Respondent with such one-sided contractual terms. [Para 9]
(ii) Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Flat Buyer Agreement – delay in Project due to global recession – Whether justified – 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. [Para 10]
(iii) Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESTATE – Flat Buyer Agreement – Delay in Project due to global recession – Whether an unfair trade practise – Complainants cannot be made to wait indefinitely for possession of the flat, as the construction is not completed. Therefore, Complainants are entitled for refund of 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.Consequently, Opposite Party Developer is directed to refund Rs.51,60,663.86ps. (Rupees Fifty One Lakhs Sixty Thousand Six Hundred Sixty Three and Eighty Six Paisa only) to the Complainants 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. [Para 13]
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 Atul Kaila and her wife Bharti Kaila (hereinafter referred to as the Complainants) 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 Complainants booked a residential flat in the said Project in the year 2008. Flat No. T14-303, Tower No. 14 admeasuring 1855 sq. ft. was allotted to them at a basic sale price of Rs.61,21,500/-. Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 27.03.2008. 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. The Complainants had opted Special Construction Link Payment Plan for making payments towards the Flat. Mr. Rohit Kaila, brother of the Complainant, had also booked a Flat in the same Project and had deposited Rs.6,12,000/- with the Developer. But seeing no progress at the site, he cancelled his booking and had transferred the his deposited amount of Rs.6,12,000/- in the cost of the Complainants’ Flat. The Complainant had changed payment plan from Special Construction Link Plan to Down-payment Plan and had deposited Rs.51,60,663.86ps. on different dates 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. The Complainants have repeatedly enquired from the Developer regarding the status of their Flat vide emails dated 14.01.2013, 15.02.2013 and 15.07.2013 but the Opposite Party Developer did not give any satisfactory reply and kept on delaying the matter on one pretext or the other. It was further averred in the Complaint that they have lost faith on the Opposite Party Developer and are no longer interested in having possession of the Flat. It was also averred in the Complaint that they have suffered loss of opportunity as the prices of the Flats have increased many times since the year 2008 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 Complainants. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Consumer Complaint with the following prayer:
a) Grant a sum of Rs.1,14,27,013/- (towards principal amount of Rs.51,60,663.86ps. alongwith interest of Rs.62,66,350/- at the rate of 18% per annum 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 a sum of Rs.15 lacs towards exemplary damages detailed above in the complaint;
c) Grant cost of Litigation to the Complainants.
d) Any other Order, relief
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