Dr. Vinita Singh vs Parasvnath Developers Ltd. & 4 Ors

The present Complaint is filed under Section 21 (a) (1) of the Consumer Protection Act, 1986.

Along with the Complainant, IA/6214/2021, an application for deletion of Opposite Parties Nos. 4 and 5 along with Amended memo of Parties has also been filed by the Complainant. For the reasons mentioned in the application, IA/6214/2021 is allowed and Opposite Parties Nos. 4 & 5 are deleted from the array of Opposite Parties.

The Complainant is a Doctor practicing in USA. The Opposite Parties are the developers.

The case of the Complainant is that she purchased a 3 bedroom flat No.D5/1102 measuring 3400 sq. ft. at the rate of Rs.4200/- per sq. ft. from the Opposite Parties in 2006. The Complainant was allotted the aforesaid flat, vide allotment letter dated 12.04.2006. Total cost of the property was Rs.1,42,80,000/- which was paid by the Complainant according to the payment schedule. On 23.08.2006, the Complainant entered into a development agreement with the Opposite Parties. According to the agreement, construction of flat was to be completed within thirty six months from the commencement of construction with a grace period of six months. Thus, according to the agreement, the construction of the flat was to be completed latest by 22.02.2010, including the six month grace period. On 27.10.2008, the Complainant received a letter from the Opposite Parties regarding status of the construction. Thereafter, the Opposite Parties did not send any intimation regarding status of the construction, except occasional assurances that work was going on and the Complainant would receive the possession soon. However, no specific time was mentioned by the Opposite Party, even after multiple mails by the Complainant. On a legal notice dated 01.10.2013 sent by the Complainant, the Opposite Parties replied on 23.10.2013 intimating that the flat allotted to the Complainant had been changed to D5-1404 PH in place of D5-1102. The Opposite Parties also increased the price of the flat from Rs.1,42,80,000/- to Rs.1,58,23,500/-. The Opposite Parties also intimated that the delay was caused due to global recession resulting in slow down of activity and the flat was likely to be offered on or before March, 2014. On 01.11.2013, the Complainant sent a letter to the Opposite Parties stating that the Opposite Parties could not be affected by global recession because they had launched several new projects and invested monies received by the previous allottees in new projects. Aggrieved by the deficiency in service on the part of the Opposite Parties, a Complaint was with the following prayer: -

“To return the money of the Complainant at the rate of the current market value of flat No.D5-1102 which should have been handed over to the Complainant in Feb., 2010.

a. To compensate the complainant to the extent of the market value of flat No. D-5 1102 -3400 square feet situated in Parasvnath Exotica” Golf course Road, Sector 53, Gurgaon.

b. To compensate to the complainant to the tune of Rs.1 Crore for causing mental harassment and torture since Feb 2010,

c. To grant any there relief in the interest of justice

d. To grant exemplary punitive cost against the Opposite party.”

The Complaint was resisted by the Opposite Parties by filing written statement. The Opposite Parties raised the issue of maintainability of the Consumer Complaint. It was stated that the issues involved in the Complaint requires elaborate evidence and cannot be adjudicated in a summary jurisdiction of this Commission. On merits, it was submitted that Opposite Party Nos. 1 to 5 were employees of Parsvnath Developers Limited Company and were not responsible in their individual capacity. It was also stated that the compensation sought by the Complainant at market value of the flat was exorbitant and beyond the terms and conditions of the agreement. Opposite Parties further stated that the delay in construction was due to recession in the real estate sector and the Company had informed the Complainant about the status of the project. The project was not abandoned and the Opposite Parties were ready to honour the terms and conditions of the agreement. The amount deposited by the Complainant and other allottes was utilized in the same project.

Heard the Learned Counsels for the Parties and carefully perused the record. Learned Counsel for the Complainant submitted that according to the agreement, the possession of the flat was to be delivered latest by 22.02.2010, including grace period of 6 months. The Opposite Parties, however, failed to deliver the possession even after expiry of nine years in violation of the terms & conditions of the agreement. It was also submitted that earlier flat No.D5-1102 was allotted to the Complainant. The Complainant was shocked to know that the Opposite Parties, vide letter dated 23.10.2012, changed the flat to D5-1404. Further, the Opposite Parties arbitrarily increased the price of the flat from Rs.1,42,80,000/- to Rs.1,58,23,500/-. The Opposite Parties were, thus, guilty of deficiency in service.

Learned Counsel for the Opposite Parties submitted that the issue involved in the Complaint is of contractual nature and cannot be adjudicated by the Consumer Commission. The dispute requires elaborate evidence and cannot be decided in a summary jurisdiction. The matter needs trial procedure and Civil Court is the appropriate Forum to adjudicate the issue. It was also submitted that the Opposite Parties being employees of Parsvnath Developers Ltd. were not personally liable for the act done on behalf of their employer. The Complainant signed the agreement with Parsvnath Developers Ltd. and not impleaded Parsvnath Developers as an Opposite Party. The Complaint against the Opposite Parties was, therefore, not maintainable and liable to be dismissed for non-joinder of necessary party.

On merits, Learned Counsel for the Opposite Parties submitted that the Complainant entered into an agreement with Parsvnath Developers Ltd. (“the Developer”) and Opposite Parties being employees of the Developers were not responsible in their individual capacity for deficiency in service on the part of the Developer. It was also submitted that the delay in construction was caused due to recession in the real estate sector. Further, Opposite Parties had communicated the status of the project to the Complainant. Learned Counsel also submitted that the Opposite Parties had not abandoned the project and they are still bound by the terms & conditions of the agreement. The amount received from the Complainant and other allottees was utilized in the construction of the project it was meant for and not any other project. Learned Counsel relied on Clause 10 (a) of the agreement and submitted that the project could not be completed in time due to force majeure conditions, which were beyond the control of Opposite Parties. The Complaint has been filed with an ulterior motive to gain undue advantage. The Complaint is liable to be dismissed.

Admitted facts of the case are that the Complainant was allotted 3 bedroom flat No.D5/1102, vide allotment letter dated 12.04.2006. It is also admitted that the Complainant entered into an agreement dated 23.08.2006 with Parsvnath Developers Ltd. The Complainant made the entire payment of Rs.1,42,80,000/- according to the payment schedule. According to the agreement dated 23.08.2006, the construction of the flat was to be completed latest by 22.02.2010, which the Developer failed to do. It is also not disputed by the Opposite Parties that they changed the flat from D5-1102 to D5-1404 and price of the flat was increased to Rs.1,58,23,500/-. The Opposite Parties have raised the issue of maintainability of the Consumer Complaint for non-joinder of necessary party. The Opposite Parties also challenged the Complaint on the ground that the issue involved in the Complaint require elaborate evidence and cannot be decided by this Commission in summary jurisdiction.

On the preliminary issue of maintainability of the Complaint, we find that there is no complicated question of law or fact involved in this case. Also no elaborate evidence is required for deciding this Complaint as alleged by the Opposite Parties. The issue involved can very well be adjudicated by this Commission.

Regarding the issue of non-joinder of necessary party, it is necessary to mention that the Complainant entered into an agreement on 23.08.2006 with Parsvnath Developers Ltd. Payment was also made to Parsvnath Developers. The Complainant has not made Parsvnath Developers Ltd. a Party to the Complaint. We find force in the submission of the Learned Counsel for the Opposite Parties of raising the issue of maintainability of the Complaint for non-joinder of necessary party.

For the foregoing discussion, we hold that the Consumer Complaint filed against the Opposite Parties is not maintainable due to non-joinder of necessary party. The Complaint is, therefore, dismissed as not maintainable. Complainant is, however, granted liberty to file a fresh Consumer Complaint in accordance with law.