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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Nidhi Gupta and Anr. – Complainants
versus
M/s. Parsvnath Developers Ltd. and Anr. – Opp. Parties
Consumer Case No.1818 of 2016
Decided on 22.11.2021
Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESATE – Compliant filed over alleged Delay in handing over possession of Flat – Refund of Amount sought – Builder Buyer Agreement – Whether Parties are bound by the terms and conditions of the Agreement, to compensate the Complainant for delay in terms of Clause 10(c) of the Agreement – A bare perusal of above Clauses makes it clear that as per Clause 10(c) of the Flat Buyer Agreement, in case of delay the Opposite Party Developer is liable to pay Rs.10/- 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.This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainant cannot be made bound to the terms of the Agreement – The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms. [Para 10]
(ii) Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESATE – Compliant filed over alleged Delay in handing over possession of Flat – Global recession if a ground for delay – delay in Project due to global recession in the real estate 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. [Para 11]
(iii) Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESATE – Compliant filed over alleged Delay in handing over possession of Flat – Plea that delay was caused in execution of development agreements with the owners of the land and later on,approval of lay out plan was delayed as such, the construction could not be completed within promised period – On facts, it is the responsibility and duty of the Developer to complete the formalities and get the execution of development agreements with the owners of the land done in time and to get approved the lay out plan within time, the Complainants/Allottees cannot be made to suffer for it, time taken in obtaining approval of lay out plan, is always expected. The builder cannot take this defence for delaying construction. [para 12]
Held:So far as letter dated 02.05.2015 for fit out possession is concerned, the Complainants have filed various photographs showing that the construction was going on, even after issuance of letter for fit-out Possession. If the construction was not complete and flat was not in a habitable condition, then issuance of letter for fit out possession was not proper.Without obtaining Occupancy Certificate from the statutory authority, possession notice could not be given. In such circumstances, the Complainants were justified in not taking possession of the Flat. [Para 13]
(iv) Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] – REAL ESATE – Compliant filed over alleged Delay in handing over possession of Flat – Refund sought over amount paid – Complainant cannot be made to wait indefinitely for possession of the Flat as the Occupancy Certificate in respect of the Tower-6 Flat has not been received till date – Complainant is entitled for refund of the principal amount with reasonable interest, which we quantify @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.1,22,28,033/- (Rupees One Crore Twenty Two Lakhs Twenty Eight Thousand Thirty Three 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 16]
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 Nidhi Gupta and Mala Gupta (hereinafter referred to as the Complainants) against Opposite Party No.1, M/s. Parsvnath Developers Limited (hereinafter referred to as the Developer) and Opposite Party No. 2 Dr. Sunit Sachar, Vice President of the Opposite Party No.1, seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer had 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 Exotica” located at Section 53, Golf Course Road, Gurgaon.
2. Brief facts as narrated in the Complaint are that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of “Parsvnath Exotica” located at Section 53, Golf Course Road, Gurgaon (hereinafter referred to as the Project). Mr. Kamal Mehra and Mrs. Vidushi Mehra (hereinafter referred to as the Original Allottees) were allotted a Flat No. 202 in Tower D-6 in the said Project. Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Original Allottees and the Developer on 26.05.2006. Allured by the attractive brochure of the said Project and the assurances given by the Executive of the Developer that all the Flats in the Project have been booked and the possession will be offered to the Allottees in the year 2009 or by the mid of the year 2010, after completing all the formalities, the Complainants got transferred all the rights, title and interest in the Flat No. 202 in Tower D-6 of the said Project from the Original Allottees, in her favour vide Agreement to Sell dated 16.01.2008. The Developer endorsed all the original receipts and Flat Buyer Agreement in respect of the Flat No. 202 in Tower D-6 in favour of the Complainants vide Endorsement Form dated 13.02.2008. By availing Home Loan of Rs.42,62,200/- from the Kotak Mahindra Bank, the Complainants made full and final payment of Rs.1,22,28,033/- (Rupees One Crore Twenty Two Lakh Twenty Eight Thousand and Thirty Three Only) to the Developer on 07.10.2008. It is averred in the Complaint that they have never committed any default in making payment except few installments against which the Developer has already charged a total penalty of Rs.1,28,393/- by way of penal interest @24% in terms of the Clause 5(b) of the Flat Buyer Agreement. 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. 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 since 2009. The Project is still incomplete and the Developer has even not received the Occupancy Certificate in respect of the Tower D-6 where the allotted Flat is situated. The Complainants have repeatedly enquired from the Developer regarding the status of their Flat on several dates but the Opposite Party Developer did not give any satisfactory reply. When the Complainants decided to initiate legal action in the year 2011, the Opposite Party No. 2 Vice President of the Developer assured that the possession will be handed over by the year 2012 but no assurance or promise came true. The Complainant visited the site in the year 2016 and shocked to witness that the Tower D6 is still under construction and is not completed even after lapse of more than 7 years from the actual date of handing over the possession. The Complainants captured the pictures of the construction at site in the year 2016, which are annexed as Annexure C-5 with the Complaint. Being aggrieved, the Complainants requested the Opposite Party Developer to hand over the p
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