SANJIV GOYAL V. PARSVNATH DEVELOPERS LIMITED & 2 ORS

1. SANJIV GOYAL

Versus

Through its Managing Director, 6th Floor, Arunachal Building,
19, Barakhamba Road,

NEW DELHI-
2. PARSVNATH DEVELOPERS LTD.

Through its Managing Director, SCO-1 First Floor, Madhya
Marg, Sector-26
CHANDIGARH,
3. PARSVNATH DEVELOPERS LTD.
Through its Managing Director, Parsvnath royal, sector 20,
behind Society No. GH-105 to GH-111, Panchkula,
HARYANA

Case No: CONSUMER CASE NO. 2571 OF 2017

Date of Judgement: 04 October 2023

Judges:

FOR THE COMPLAINANT : MS ANCHITA NAYYAR, PROXY COUNSEL (WITH AUTHORITY LETTER)

FOR THE OPP. PARTY : MR PRABHAKAR TIWARI, ADVOCATE

Facts:

Arguments by Complainant:
Builder failed to handover possession within stipulated 36 months + 6 months grace period. It kept complainant in dark about construction status through false assurances. Seeks refund of amount paid with interest @18% along with damages for deficiency in service

Arguments by Opposite Party/Builder:
Dispute is civil in nature and Commission lacks jurisdiction. Complainant purchased flat from open market, not allotted by builder. Timeline for possession in FBA was indicative. Delay was due to global recession which was force majeure event. Complainant was himself a defaulter hence not entitled to relief. Claim for refund and interest not valid

Referred Laws and Sections:
Download Court Copy: https://dreamlaw.in/wp-content/uploads/2023/12/download9.pdf

Full Text of Judgment:

1. This consumer complaint under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is filed against the opposite party alleging deficiency in not handing over possession of the flat booked by the complainant within the promised time and seeking refund of the amount deposited with interest as compensation and other costs.

(d) any other relief this Hon’ble Commission deems fit.

4. On merits, it is denied that there was a FBA executed between the original allottee (M/s Vardhaman Associates) and the opposite party. It is denied that the flat was allotted in favour of the complainant by the opposite party. It is submitted that the complainant had purchased the flat from the open market and not from the opposite party and that the original allottee transferred all his rights to the complainant. The opposite party contends that all demands were raised as per the payment plan opted for by the complainant and that the complainant made numerous defaults in making timely payments of instalments which resulted in several reminders and demand letters being sent by the opposite party from time to time. It is denied that the possession of the flat was put off on some pretext or the other or that the opposite party failed to develop the project. It is denied that the full payment had been made by the complainant and it is stated that the project was aimed at completion as per schedule
projected. The global recession was a major reason for the delay as nearly 70 units were still unsold and Rs 9 crores was the outstanding payments to be made by customers. Despite this, the opposite party was working towards completing the project. The opposite party denies keeping the complainant in the dark and submits, instead, that it kept the complainant always informed. It is also denied that the complainant pursued the matter or visited the site several times. It is contended that the complainant is motivated by an ulterior motive to make wrongful gains from the opposite party. Violation of the FBA is denied or that the construction had stopped or that the complainant had a cause of action. The claim made is stated to be non maintainable and the complaint before this Commission only filed in order to avoid payment of court fee and the rigours of a civil suit outside the summary jurisdiction of this Commission. The prayer is stated to be prima facie not valid and the complaint liable for dismissal.
5. Parties led their evidence and filed their short synopsis of arguments. I have heard the learned counsel for both the sides and perused the evidence on record carefully.
7. On behalf of the opposite party it was argued that the period of 42 months for construction mentioned in the FBA was only indicative. It was admitted that there had been a delay in the completion of the project although this was ascribed to force majeure events. It was also argued that the reasons for the delay were beyond the control of the opposite party as it was due to events which were beyond the control of the opposite party and could not be ascribed to it resulting in delay. The complainant was a consistent defaulter who was not entitled to relief. Learned counsel for the opposite party submitted during arguments that the project had also been registered under RERA and was likely to be executed within the stipulated time frame. Hence the complainant was prayed to be dismissed as unjustifiable.

10. From the material on record and the arguments advanced by both the learned counsel for the parties, it is apparent that the complainant is liable to claim relief with effect from the FBA dated 09.07.2011 signed by the original allottee with the opposite party. Though there is no FBA signed between the complainant and the opposite party brought on record, the fact that the opposite party accepted payments from the complainant is an admission of it recognizing that the complainant had stepped into the shoes of the original allottee. It is manifest from the record and admission of the opposite party that it has failed to obtain a completion/occupancy certificate from the concerned authorities for the apartments it was receiving the instalments for from the original allottee/complainant or to deliver possession of the same by the promised date. The payment plan was construction linked and the complainant continued to demand and receive instalments despite the construction milestones not being achieved as is evident from the delay admitted. This certainly amounts to deficiency in service as well as an unfair trade practice on its part qua the allottee/complainant. The argument that the complainant was a consistent defaulter does not sustain in the light of the fact that the opposite party did not choose to terminate the contract for this breach of contractual condition. It therefore cannot take this plea to deny the complainant his right to seek refund of the money deposited. The Hon’ble Apex Court has laid down in Govindan Raghavan (supra) that an allottee as a consumer is entitled to seek refund of the money paid by him to the opposite party/builder in case of inordinate delay on the part of the opposite party to hand over possession and in Kolkata West International City Pvt. Ltd. (supra) that delay of nearly 8 years cannot be considered to be ‘reasonable delay’. The payment of interest as compensation has been held by the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No. 6044 of 2019 decided on 07.04.2022 to be both restitutionary and compensatory and to be payable from the dates of deposit. A rate of interest of 9% simple interest per annum has been considered to be suitable in a catena of judgments by the Hon’ble Supreme Court and this Commission.
10. For the aforementioned reasons, I do not find any merit in the arguments of the opposite party. In view of the facts and circumstances of this case, the complaint is found to have merits and is liable to succeed. It is accordingly allowed with the following directions:
(ii) this order shall be complied within 8 weeks of this order failing which the rate of interest shall be 12% per annum.
(iii) opposite party shall also pay Rs 50,000/- to the complainant as cost of litigation.

All pending IAs stand disposed of with this order.