Smita Khemka vs M/s Parsvnath Hessa Developers Pvt. Ltd.

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Ashish Rana, Advocate, for the complainant and Mr. Prabhakar Tiwari, Advocate, for the opposite party.

Smt. Smita Khemka has filed above complaint for directing the opposite party to (i) handover possession of Flat No.C-4-1203, in the project “Parsvnath Exotica” to the complainant; (ii) pay delay compensation in the form of interest @18% per annum, from due date of possession till the delivery of possession; or in alternative (iii) refund Rs.18698315/- with interest @18% per annum from the date of respective deposit till the date of refund; (iv) pay Rs.1000000/-, as compensation for deficiency in service and unfair trade practice; (v) pay Rs.100000/- as litigation costs; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that Parsvnath Hessa Developers Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Parsvnath Exotica” at village Wazirabad, Sector 53 Gurgaon, in the year, 2010 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, Mrs. Sunila Dass (the predecessor-in-interest of the complainant) booked a flat on 08.06.2010 and deposited booking amount. The opposite party allotted Flat No.C-4-1203, area 2645 sq.ft., basic sale price Rs.17959550/-, vide Allotment Letter dated 14.07.2010. In order to extract money, the opposite party, vide letter dated 30.08.2010, informed Mrs. Sunila Dass that it had procured Foreign Direct Investment for completing the project on time as informed earlier to the buyers vide letter dated 11.12.2009. As per demand of the opposite party, Mrs. Sunila Dass deposited total Rs.12971685/- till 14.06.2011. The opposite party executed Flat Buyer Agreement (FBA) in favour of Mrs. Sunila Dass 07.06.2011. Annexure-1 of the FBA provides payment plan as “construction linked payment plan”. Clause-10(a) of the FBA provides 36 months period from commencement of the construction or 24 months from the date of booking whichever is later with grace period of six months, for completion of construction. Mrs. Sunila Dass transferred above flat to the complainant after taking Rs.14076890/- with previous permission of the opposite party through agreement to sell dated 21.06.2011. The opposite party after taking administrative/transfer charges of Rs.271311/- and other papers, endorsed the name of the complainant in the FBA dated 21.06.2011 on 05.07.2011, on the letter of Mrs. Sunila Dass dated 22.06.2011, in which, she had stated deposit of Rs.12971685/- till 14.06.2011 towards BSP. The complainant started paying the instalments thereafter as per demand of the opposite party and deposited Rs.18698315/- (including payments made by Mrs. Sunila Dass) till 06.04. 2012. Due date of possession expired in June, 2014. The opposite party did not inform about delivery of possession for a long time. The complainant gave a legal notice dated 21.03.2016, calling upon the opposite party to handover possession. In spite of service of the notice, the opposite party did not respond then filed this complaint on 14.07.2016, for deficiency in service on the part of the opposite party.

The opposite party has filed its written reply on 13.04.2017, in which, booking of the flat, allotment of the flat and the deposits made by Mrs. Sunila Dass and the complainant, have not been disputed. The opposite party, however, stated that Mrs. Sunila Dass and the complainant have delayed payment of instalments, for which, reminders dated 14.08.2010, 24.09.2010, 05.10.2010, 28.01.2011, 11.03.2011 and 10.05.2011 were given. M/s. Puri Construction. M/s. Florentine Estates of India, M/s. MAD Entertainment Network Ltd, Mr. Sunil Manchanda, Mr. Arjun Puri, Mr. Mohinder Puri and Mr. Ram Prakash are the owners of the project land. The owners obtained Development Licence Nos.69 to 74 of 1996, 52 to 57 of 1997, 1079 of 2006 and 191 of 2007 from the Director, Town & Country Planning, Haryana. The owners applied for sanction of Building Plan on 11.12.2004, which was approved on 07.01.2005. M/s. Puri Construction applied for sanction of Building Plan on 29.11.2007, in respect of Pocket-B of the project, which was approved on 10.04.2009. The owners entered into Development Agreements dated 24.11.2004, 04.04.2005, 04.09.2009, 21.09.2006 and 01.10.2009 with Parsvnath Developers Limited for construction of the project, who assigned its right to the opposite party, vide agreement dated 09.12.2009 in respect of 11.092 acres land. From mid of 2008, global economic slowdown was experienced in real estate sector due to which, Foreign Direct Investment was significantly dropped. Due employment schemes of the government in rural and urban areas, shortage of manpower in real estate sector was started. Lack of fund and manpower and delay in approval by statutory authorities are main reasons for delay in construction work. Out 18 multi-storied residential towers, the opposite party completed construction of 11 towers and handed over possession of 450 flats. The opposite party has completed construction of 5 more towers and applied for issue of ‘occupation certificate’ and offered fit-out possession to the buyers. The opposite party offered fit-out possession to the complainant on 27.02.2017 and credited Rs.211600/- in her account as delay compensation. The complainant is not an original allottee rather a subsequent transferee. At the time of transfer, the complainant knew that the project had been delayed and gave an undertaking dated 22.06.2011 for not claiming any compensation. The opposite party did not commit any negligence or deficiency in service. The complaint has been filed malafide with an object of undue enrichment which proves that she is an investor in real estate with speculative purpose and not a consumer. The complaint is time barred and raises complicated issues of facts, which require trial by civil court and is liable to be dismissed.

The complainant filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Smita Khemka and documentary evidence. The opposite party filed Affidavit of Evidence and Affidavit of Admission/Denial of documents of Madan Dogra and documentary evidence. Both the parties have filed written synopsis.

We have considered the arguments of the parties and examined the record. Out of total basic sale price Rs.17959550/-, the complainant has paid Rs.18698315/- (including payments made by Mrs. Sunila Dass) till 06.04. 2012. Clause-10(a) of the FBA provides 36 months period from commencement of the construction or 24 months from the date of booking whichever is later with grace period of six months, for completion of construction. Even if this 42 months period is counted from the date of transfer in favour of the complainant, it has expired in December, 2014. The opposite party could not obtain ‘occupation certificate’ in spite of direction of Supreme Court in Contempt Petition (Civil) No.6664 of 2019 till today. The opposite party has taken plea of force majeure, which is not liable to be accepted inasmuch as payment plan was “construction linked payment plan” and the opposite party had realized more than basic sale consideration till 06.04.2012. If the opposite party was not proceeding with the construction, there was no justification for realizing instalments of various level of construction. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and has held that the buyer cannot be made to wait for indefinite period for possession.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant, including payments made by Mrs. Sunila Dass, with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.