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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
M/s. Indra Stells Pvt. Ltd. – Complainant
versus
M/s. Parsvnath Developers Ltd. – Opp. Party
Consumer Case No.3897 of 2017
Decided on 20.1.2022
(A) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Services – Real Estate – Complaints filed seeking alleged delay in handing over possession of flats, refund of booking amount sought – Whether Complainant is not a ‘Consumer’ having booked the subject flat 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 9]
(B) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Services – Real Estate – Builder Buyer Agreement – Clause in 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. – Whether such a clause can be termed as unfair and wholly one sided – the 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. [Para 11]
(C) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Services – Real Estate – Global recession as a cause of delay – Whether delay can be justified – 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 12]
(D) Consumer Protection Act, 1986 – Section 21[Consumer Protection Act, 2019 – Section 58] – Services – Real Estate – Delay in completion / handing over physical possession of Flats – Entitlement for delay and compensation – Whether OP’s are liable for deficiency of service – Complainant cannot be made to wait indefinitely for possession of the flat, as the construction of the Flat is not completed – Therefore, Opposite Party in not handing over the Possession of the Flat to the Complainant even after more than 14 years of the allotment of the Flat despite receiving huge amount from the Complainant, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice – Complainant is entitled for refund of the principal amount along with damages and compensation in the form of interest @9% p.a. from the date of respective date of deposit till the date of actual refund. Consequently, the Opposite Party Developer is directed to refund to the Complainant Rs. 50,42,014.50ps. (Rupees Fifty Lakhs Forty Two Thousand Fourteen and fifty paisa only) alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund – Complaint is partly allowed. [Paras 16 to 19].
Result: Complaint partly allowed.
ORDER
The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by M/s Indra Steels Pvt. Ltd. through its Director Mr. Vijay Aggarwal (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. Mr. Vijay Aggarwal being Director of M/s Indra Steels Pvt. Ltd. (hereinafter referred to as the Complainant) booked a residential flat for his personal use in the said Project. Flat No. T8-603, Tower No. 8 having an super area 1855 sq. ft. was allotted to the Complainant at a basic sale price of Rs.52,86,750/-. Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 09.08.2007. 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. The Complainant had opted for Construction Linked Payment Plan and had deposited Rs.50,13,577.50ps. upto 02.07.2013 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 Opposite Party Developer had utilized the Complainant’s money in other Projects and also transferred the funds of the present Project to other Projects in pipeline. The Project is still incomplete and the Developer has even not received the Occupancy Certificate. The Complainant raised queries regarding handing over the possession, but the Developer did not respond to Complainant’s queries. He has no trust on the Opposite Party Developer and is no longer interested in having possession of the Flat. 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:
i. To return the amounts paid by the Complainant together with 18% p.a. interest;
ii. Cost of the complaint;
iii. Pass such other or further orders as may be deemed fit and proper in the facts and circumstances of the case.”
3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer took a preliminary objection that the Complainant has invested money for his economic purpose and is, therefore, not a Consumer under section 2(1)(d) of the Act. The Opposite Party Developer admitted that the Complainant was allotted Flat bearing No. T8-603 in the Project on 23.02.2007 under Construction Linked Payment Plan and has deposited Rs.50,42,014.50ps. (Rupees Fifty Lakhs Forty Two Thousand Fourteen and fifty paisa only) as on 30.03.2018. It was stated that a Flat Buyer Agreement was executed between the Complainant and the Developer and they are bound by the terms of the Agreement. It was further stated that the delay in construction of Project is caused due to global recession in the real estate sector and this was duly informed to the Complainant vide letter 20.06.2010. The Project is under way and is not abandoned by the Developer. The delay in construction i
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