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DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. Sangita Dhingra Sehgal, President and Rajan Sharma, Member (Judicial)
[Via Video Conferencing]
Sh. Manish Jain – Complainant
versus
M/s. Parsvnath Developers Ltd. – Opp. Party
Complaint Case No.903 of 2016
Decided on 15.2.2022
(A) Consumer Protection Act, 1986 – S.17 [Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Complaint filed for alleged delay in delivery of possession of flat – Whether Consumer as defined under the Consumer Protection Act, 1986 since the flat was purchased for investment, which constitutes commercial purpose – Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint – Therefore, Complaint is maintainable. [Para 20].
(B) Consumer Protection Act, 1986 – S.17 [Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Whether Consumer For a has jurisdiction when complicated questions of fact and law are to be adjudicated – In the present case, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties – Therefore, complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the refund of amount deposited with the Opposite Party. [Paras 27, 28].
(C) Consumer Protection Act, 1986 – S.17 [Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Complaint filed for alleged delay in delivery of possession of flat – Delay caused due to global recession, whether delay can be justified – In the present case, Opposite Party has not brought forth any documentary evidence to prove that the project in question was directly impacted by the Global Recession. [Para 30]
(D) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Complaint filed for alleged delay in delivery of possession of flat – whether the Opposite Party is actually deficient in providing its services to the Complainant – Opposite Party is deficient in providing its services to the Complainant since it has failed to handover the possession of the flat within the stipulated time period and the Complainant is entitled for the refund of the money deposited by him with the Opposite Party – Opposite Party has failed to aver in its written statement that the foundation has been laid or the construction of the flat has been concluded. Further, it has been long settled that after the passage of the stipulated period, incorporated in the allotment letter/flat buyers agreement, the Consumer is not bound to accept the offer of possession and is entitled to refund of the amount deposited along with substantial compensation. [Paras 33, 34].
(E) Consumer Protection Act, 1986 – S.17 [Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Nominal compensation @ Rs. 5 per sq. ft. payable to Complainant for the delay caused by OP – Whether Nominal Compensation is fair and justified – Complainant cannot be made bound to a nominal compensation @ Rs. 5 per sq. ft. and the case calls for the payment of just and reasonable compensation – In the present case, the perusal of the Flat buyers Agreement reflects that nominal compensation @ Rs. 5 per sq. ft. is payable to the Complainant by the Opposite Party if there is delay of any sort by the latter party – Hence, there is no parity between the quantum of compensation payable as per the Flat Buyers Agreement by the Complainant and the Opposite Party – Complaint allowed with directions. [Paras 37 to 39].
Result: Complaint allowed.
JUDGMENT
Dr. Sangita Dhingra Sehgal, President.—Brief facts necessary for the adjudication of the present complaint are that the Complainant booked a Residential flat in the project of the Opposite Party by the name and style of “Parsvnath Preston” located at Sonepat, Haryana and paid the registration advance of Rs. 1, 43, 000/- on 31.12.2007, vide cheque no. 871323 drawn on HDFC Bank, New Delhi.
2. Having made the payment, which was duly acknowledged by the Opposite Party, a residential flat bearing No. T4-804, admeasuring 1310 sq. ft. was provisionally allotted to the Complainant vide allotment letter dated 17.01.2008. The total sale consideration of the aforesaid flat was mutually agreed between the parties at Rs. 28,67,220/- which included the Basic Sale price, EDC, IDC and car parking charges.
3. The Complainant further deposited an amount of Rs. 2,87,083/-, which was duly acknowledged by the Opposite Party vide receipt no. S0066754. Pursuant thereto, the Parties entered into a flat buyer agreement dated 28.02.2008 for the aforesaid flat, which specifically mentioned that the possession of the flat shall be delivered within 36 months from the date of start of foundation of the individual block/tower.
4. Thereafter, the Opposite Party vide letter dated 18.02.2008 raised a further demand of the balance amount of Rs. 22,93,776/-.
5. After receipt of the said letter, the Complainant got a home loan sanctioned from ING Vysya Bank for an amount of Rs. 17,76,344/-. at a floating Interest rate of 15.50%.
6. Thereafter, the Complainant and the Opposite Party entered into an EMI Sharing Agreement dated 01.03.2008, whereby the Opposite Party were to reimburse the EMI on home loan and were to pay the EMI amount till the possession was handed over to the Complainant.
7. On 03.04.2008, an amount of Rs. 17,10,000/- was disbursed from the Bank to the Opposite Party in pursuance of the Home Loan.
8. It later transpired that the Opposite Party, repeatedly defaulted in making the payments towards the EMIs of the said home loan, which came to be borne by the Complainant.
9. On a regular basis, the Complainant tried to inquire from the Opposite Party as to the progress of the aforesaid project by means of letters but never got a satisfactory response from the executives of the Opposite Party as to the date of the handing over of the possession of the flat.
10. Aggrieved by the delay caused by the Opposite Party and also non-payment of EMIs by the Opposite Party, the Complainant got served a legal notice dated 01.09.2016 seeking refund of the amount paid by the Complainant and also to pay the EMI amount as per the EMI Sharing Agreement. However, the Opposite Party failed to revert to the aforesaid legal notice.
11. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant approached this commission.
12. The Opposite Party contested the present case and raised some preliminary objections as to the maintainability of the present complaint and contended (a) that the said flat has been purchased solely for the purpose of investment, merely for “Commercial Purpose”, hence, the Complainant is not a Consumer within the provisions of the Consumer Protection Act, 1986 ; (b) that since the complainant is seeking recovery of money, the present complaint is nothing but a suit for recovery, which is beyond the jurisdiction of this commission and can only be decided by a Civil Court; (c) that the present complaint involves complicated question of facts and law which need to be proved by leading detailed evidence, which could only be done before a Civil Court; (d) that the global recession hit the economies worldwide and the real estate sector also took a major hit, which is the major cause of delay in construction ; (e) that the Complainant has failed to establish any kind of deficiency in providing services by the Opposite Party; (f) that there exists a contract between the
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