Judgment:
S.A. Siddiqui, Member (Judicial):
1. Complainant MRs.Ved Kumari Dhawan filed this complaint against the OP M/s Parsvnath Developers under Section 12 of the Consumer Protection Act 1986 (hereinafter called the Act) for refund of Rs.28,38,737/- alongwith interest and compensation of Rs.2,50,000/- and cost of litigation.
2. Brief facts of the case are that complainant booked a flat on 30.04.2006 in upcoming residential project of the OP in the name and style of œParsavnath Privilege? at Greater Noida-UP, and made an initial payment of Rs.10 Lac vide cheque No. 817414 dt. 30.04.2006 drawn on ICICI Bank, Noida. She further made payment of Rs.3,21,687.50/- through cheque No. 504280 dt. 20.03.2007, Rs.5,76,905/- through cheque No. 504292 dt. 21.11.2007, Rs.4,70072.50/- through cheque No. 227928 dt. 27.05.2008 and Rs.4,70,072/- through cheque No. 724683 dt. 08.10.2008 totalling to Rs.28,38,737/- (Rs.Twenty Eight Lakh Thirty Eight Thousand Seven Hundred Thirty Seven Only) (payment receipts filed as Annexure-2 Colly). A flat buyers agreement dt. 29.08.2007 (Annexure-1) executed on 29.08.2007. Despite payment of Rs.28,38,737/- (approx. 54% of the total amount) the flat in question was not completed till 08.09.2011 photographs of the project were taken and it was found that the project was substantially incomplete even after a lapse of four and half yeaRs.However, the OP continued demanding balance amount from the complainant. Complainant tried to enquire about the status of the project and even sent letters and reminders but the OP kept the complainant in complete dark. No information regarding the NOC from the concerned authority was given. Feeling aggrieved from the complete silence of the OP, the complainant demanded her money back vide letter dt. 04.12.2009. She sent reminder letter dt. 04.01.2010, but the executive of the OP flatly refused to refund the amount deposited and orally told that the OP had already cancelled and forfeited the initial amount deposited by the complainant and therefore deposited money will not be refunded. Copies of the letter dt. 04.12.2009 and 04.01.2010 annexed as annexures 4 and 5 respectively. Left with no option complainant had to file consumer complaint alleging deficiency of service and indulgence of unfair trade practice by the OP.
3. The OP filed written statement denying any deficiency of service or indulgence to unfair trade practice. Certain preliminary objections regarding the territorial jurisdiction and few others were raised. It was mentioned that complainant has entered into a flat buyers agreement which constitutes a binding contract between the parties and that the parties were bound by the terms and conditions of the agreement. The payment of Rs.28,38,737/- as advance towards registration-cum-pre launching booking of a flat bearing No. T17-403 in Tower No. 17 having 1855 sq. ft. at group housing complex consisting of residential flats was, however, not denied. It was admitted that the flat was booked on 30.04.2006 after depositing booking amount. The OP allotted a residential flat No. T17-403 through letter dt. 23.02.2007. Pursuant thereto a flat buyers agreement was signed between the parties on 29.08.2007. The complaint was not maintainable as the complainant was guilty of suppression of true and correct facts. The complainant has nowhere mentioned in the complaint that there exists a term in the flat buyer agreement which stipulates that in the event of any delay in construction, the complainant would be entitled to a compensation @ Rs.5/- per sq. ft. of the super area for the period of delay. Therefore the interest of the complainant was duly protected under agreement. But this fact was deliberately suppressed in the complaint. It was further maintained that the complainant was not maintainable as complicated questions of law and facts were involved and a Civil Suit alone was maintainable. Filing of the consumer complaint tant amounts to filing of a recovery suit in the garb of Consumer complaint without payment of requisite court fees. It was denied that the OP has indulged into restricted practice or has adopted unfair trade practice or was guilty of deficiency of service. In view of the facts, circumstances and legal position the complaint was liable to be dismissed with cost.
4. The complainant filed rejoinder and evidence denying assertions of the OP. The parties led evidence in support of their cases. Written arguments were also filed.
5. We have heard Sh. Nalin Sahay Ld. Counsel for the Complainant and Sh. Rakesh Bhardwaj Ld. Counsel for the OP at length and have perused the record.
6. At very outset it has to be mentioned that Ld. Counsel for the OP did not press the preliminary objections raised in reply. Further, the payment of Rs.28,38,737/- has not been denied by the OP. This amount was deposited during the period 30.04.2006 to 08.10.2008. The flat was booked on 30.05.2004 and provisional allotment of flat No. T17-403 was made on 30.02.2007. Thereafter a flat buyer agreement was signed between the parties on 29.08.2007. The complainant after making payment of more than half of the total price (approx. 54% of the total cost) kept on waiting till 08.09.2011 for completion of the project and getting possession of the residential flat. Photographs of the construction/project were taken on this date and it was found that the project was considerably delayed; no NOC was obtained from the concerned authority till that date and requisite information were not given to the complainant by the OP respite respects. Under the circumstances, complainants patience was exhausted and she demanded refund of the deposited amount. After all the project was considerably delayed. It was argued on behalf of the complainant that the after depositing more than 50% of the total cost of the flat complainant cannot be made to wait for unlimited period. She had already waited for about four and half years, and yet possession of a residential flat was nowhere in picture. The flat buyer agreement which provides some protection to the buyer/costumers in case of undue delay in completion of the project is completely inadequate to protect the interest of the buyers who deposit their hard earned money in the hope of getting a residential flat to live peacefully for the rest of their lives. The terms and conditions of the flat buyers agreement heavily weigh towards the builder and are consciously prepared to safe guard their interest. On the other hand, Ld. Counsel for OP argued that the parties were bound by the terms and condition laid down in the flat buyer agreement. In case of delay in completion of the project, adequate mechanism has been provided to protect the interest of the buyer. Therefore the demand of the buyer was unattainable and the complaint was misconceived and was liable to be dismissed.
7. So far as defence of the written contract between the parties is concerned no doubt parties are bound by the terms and conditions of the written contract/agreement. However, we should keep in mind that the builders are a strong party in comparison to a purchaser who deposts his hard earned money in the hope of getting residential flat to live peacefully. The terms and conditions of flat buyer agreement are couched in such manner that they better serve the interest of the buildeRs.Builders continue to demand money irrespective of the fact that the projects are incomplete and even necessary NOC from the concerned authorities were not obtained. The Consumer Protection Act is socially beneficial legislation and aims at safeguarding the interest of the consumeRs.In the present case the complainant deposited handsome amount of Rs.28,38,737/- and only got provisional allotment. Long awaited possession of the flat was nowhere in picture. There was no hope of its early completion even after lapse of four and half yeaRs.No NOC was obtained from the concerned authority. Under the circumstances the complainant cannot be compelled to wait for indefinite period for completion and possession of the flat. Builders cannot be permitted to extend the completion of the project to an unlimited period and continue to exploit the buyers in the garb of flat buyer agreement. The settled legal position in such circumstance is that the buyer is entitle to get back his or her money alongwith appropriate rate of interest. Suitable compensation is also to be awarded for mental pain agony and harassment. In M/s M2K Infrastructures Pvt. Ltd. V/s Praveen Kumar in Revision Petition No. 2580/10 decided on 04.05.2010, the Honble National Commission decided in favour of the complainant and confirmed the order passed by the Honble State Commission, Punchkula, Haryana for refund of the amount alongwith interest @ 9% p.a. with compensation and the cost.
1) In the present case we are of the firm view that the complainant was quite justified in demanding back the refund of her money alongwith interest as she kept waiting for possession of the residential flat for about four and half yeaRs.The OP was clearly deficient in providing sufficient services. Demanding huge amount from the purchasers for provisional booking and using their money for several years without completing the project within stipulated time tantamounts to indulgence to unfair trade practice.
2) We therefore, hold that the complaint is maintainable. OP is therefore directed to refund Rs.28,38,737/- alongwith interest @ 9% p.a. from the date of deposit till the date of actual payment. The OP shall further pay a sum of Rs.50,000/- as compensation for mental pain agony and harassment alongwith a sum of Rs.20,000/- towards cost of litigation.
3) The payment shall be made within a period of 30 days from the date of receipt of the judgment.
4) Let a copy of the order be made available to the parties free of cost as per rule and thereafter file be consigned to record room.