Subhash Chander Mahajan vs Parsvnath Developers Ltd.

THIS order shall decide two cases detailed above. The facts of both the cases and law points involved herein are similar. Therefore, both these cases are being decided through a common judgment. The case of the complainants, Sh. Subhash Chander Mahajan and Sh. Aditya Mahajan, in complaint No. 144 of 2014 is this. They booked a Three -Bed Room residential Flat No. 1402, measuring 1855 sq.ft. in the Parsvnath Privilege Complex situated in Plot No. 11, Sector P -1, Chauraisin Estate, Greater Noida. Both the complainants were issued a provisional allotment letter dated 23.2.2007. It was agreed that the flat would be completed within a period of 36 (thirty -six) months from the date of commencement of construction. The Agreement has been attached as Ex. P -2, in this case. It was also agreed that if there was delay in construction of the flat, beyond the period, as stipulated, the Parsvnath Developers/OP would pay to the complainants Rs. 5 per sq.ft. per month, for the period of delay of the agreement. The complainants made full payment towards the flat in question in May, 2007, under the Down Payment Plan, Plan -A. "A provision for 10% rebate was also provided at the very start." It is alleged that the construction of the said premises was stopped in January, 2008 for the reasons best known to the OP. The complainants took loan of Rs. 20.00 lakh in May, 2007 from HDFC Bank for the purpose of making payment towards the above said booked flat. They have already paid the interest from 1.4.2007 to 31.3.2012 in the sum of Rs. 6,97,230 vide receipts, annexed as Annexure P -3 (colly).

OP vide letter dated 10.6.2010 admitted that there had been a delay in the construction of the project. The OP itself, vide its letter dated 22.5.2007, informed HDFC Bank that the loan was required by the complainants. The factum of loan was in the knowledge of the OP. The complainant wrote a number of letters vide Annexure P -5 (colly) (about 15 letters approximately), requesting it to explain the status report of the project. It was stipulated in the agreement that an interest @ 24% p.a. would be charged in case of default in payment by the complainants. It is contended that the OP is also liable to pay the same interest @ 24% p.a. as calculated from July, 2011, in the sum of Rs. 80,74,423 besides the principal amount of Rs. 50,708,998. The OP has caused mental agony, harassment in not handing over possession of the flat to the complainants. Consequently, it is also liable to pay Rs. 20.00 lakh towards damages, harassment and mental agony caused to the complainants due to the acts of OP. The complainants are sharing their residence with their daughter in Gurgaon after retirement of complainant No. 1. The complainants had made up their mind to stay in their own house after retirement of complainant No. 1.

AS per Clause 10(c) of the Flat Buyer Agreement, it was agreed by the OP that in case of any delay, the OP shall pay to the complainants a compensation Rs. 5 per sq.ft., per month, for the period of delay and therefore, a sum of Rs. 1,02,025 accrued towards compensation from September, 2010, till July, 2011. It is contended that the amount of Rs. 5 per sq.ft. is unjust and OP has exploited the complainants by delaying the construction work. The complainants visited the premises in dispute, a number of times till 29th June, 2011, but did not find any progress at the premises. They demanded the refund but the same was not given. Consequently, the complainants have filed the complaint with the following prayers: (a) Grant a sum of Rs. 1,31,53,421 (towards principal amount of Rs. 50,78,998 along with interest of Rs. 80,74,423) at the rate of 24% per annum compounded along with pendente lite and future interest at the rate of 24% per annum compounded till the date of actual realization of the payment.

(b) Grant a sum of Rs. 1,02,025 towards compensation at the rate of Rs. 5 per sq.ft., per month on the flat having super area of 1855 sq.ft. along with pendent lite and future compensation at the same rate till the date of actual realization of the amount.

(c) Grant a sum of Rs. 6,95,817 towards interest on loan paid to HDFC along with pendente lite and future interest, till the date of actual realization.

(d) Grant a sum of Rs. 20 lacs towards exemplary damages detailed above in the complaint.

(e) Grant cost of litigation to the complainants.

(f) Any other order, relief or direction which this Hon''ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainants and against the respondent.

The complainant No. 1 is a senior citizen of 75 years old.

IN complaint No. 200/2011, Sh. Abhishek Kumar Dwivedi, is the complainant in this case. The facts of this case are almost similar to that of complaint No. 144/2011, detailed above. However, the complainant is not a senior citizen. He also got booked residential flat from the same OP on 15.11.2007. He paid the entire money. As per the Agreement dated 24.12.2007, filed as Annexure P -2, wherein it was explained that construction was to be completed within a period of 36 months. It was also stipulated in para 10(a) of the Agreement that if there is a delay, the OP would pay a compensation @ Rs. 5 per sq.ft. per month. He also took loan from the bank and paid interest in the sum of Rs. 14,74,756 on loan to ICICI Bank. Home Loan approval letter and statement of interest on loan are also annexed as Annexure P -3 to the complaint. There was delay in handing over the possession, like in the previous case, though, the complainant had paid total amount of consideration @ Rs. 56,02,399. Ultimately, this complaint was filed with the following prayers: (a) Grant a sum of Rs. 1,23,37,627 (towards principal amount of Rs. 56,02,399 along with interest of Rs. 67,35,228) at the rate of 24% per annum compounded along with pendente lite and future interest at the rate of 24% per annum compounded till the date of actual realization of the payment.

(b) Grant a sum of Rs. 74,200 towards compensation at the rate of Rs. 5 per sq.ft. per month on the flat having super area of 1855 sq.ft. along with pendente lite and future compensation at the same rate till the date of actual realization of the amount.

(c) Grant a sum of Rs. 14,84,756 towards interest on loan paid to ICICI along with pendente lite and future interest, till the date of actual realization.

(d) Grant a sum of Rs. 20 lacs towards exemplary damages detailed above in the complaint.

(e) Grant cost of litigation to the complainants.

(f) Any other order, relief or direction which this Hon''ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainants and against the respondent.

We have heard the Counsel for the parties. The learned Counsel for the OP made only one submission. She vehemently argued that this Commission had no jurisdiction. The amounts were inflated by both the complainants. This case comes within the jurisdiction of the State Commission. She pointed out that on one hand, both the complainants are claiming interest at more than Rs. 80.00 lakh and Rs. 67.00 lakh @ 24% p.a., respectively, and on the other hand, they are also claiming compensation @ Rs. 5 per sq.ft. per month. Both these facts are contradictory. The complainants are not entitled to interest @ 24% p.a. They must abide by the agreement and should not go beyond it. In support of her case, she has cited few authorities. This Commission, in case of Kumari Fenny & Ors. v. Kavitha V.K. (Dr.) & Ors., : I (2013) CPJ 34(NC) (a medical case), decided by a Bench consisting of (Justice J.M. Malik and Sh. Vinay Kumar, Member) and authored by Hon''ble Sh. Vinay Kumar, Member, held that considering the material examined above, we have no hesitation in holding that the prayer made in the complaint petition is highly exaggerated and not borne out by the material placed on record. Therefore, the complaint petition is dismissed, reserving liberty to the complainant to seek remedy before an appropriate Forum of competent jurisdiction.

COUNSEL for the OP also placed reliance on V.K. Agarwal (Dr.) v. Infosys Technologies Ltd. & Ors., : I (2013) CPJ 373 (NC), which pertains to shares and has no application to this case.

ON the other hand, the Counsel for the complainant has placed reliance on the following eight authorities: 1. M/s. Sunil Mantri Reality Ltd. v. K. Sreelatha, : IV (2012) CPJ 295 (NC): R.P. No. 2432 of 2012 (NCDRC).

Sanjay Goyal v. Unitech Ltd. & 3 Ors., : III (2013) CPJ 5 (NC) : CC No. 344 of 2012.

Shivalik Vihar Sites Pvt. Ltd. & Ors. v. Gurcharan Singh, : III (2012) CPJ 276 (NC): R.P. No. 1413 of 2012 and RP No. 1414 of 2012 (NCDRC).

M/s. Omaxe Limited v. Amit Mishra,, IV (2012) CPJ 459 (NC) : R.P. No. 2280 of 2012 (NCDRC).

Mrs. Veena Khanna v. M/s. Ansal Properties & Industries Ltd., : III (2007) CPJ 185 (NC) : First Appeal No. 155 of 2006 (NCDRC).

The Secretary, South Western Railway v. K. Velayudhan, : I (2011) CPJ 304 (NC) : R.P. No. 454 of 2011 (NCDRC).

Sh. J.L. Sethi v. Senior Citizen Home Complex, : III (2006) CPJ 356 (NC) : R.P. No. 3129 of 2005 (NCDRC).

Ghaziabad Development Authority v. Balbir Singh, : II (2004) CPJ 12 (SC) : III (2004) SLT 161 : Civil Appeal No. 7173 of 2002, : (2004) 5 SCC 65.

We find force in the arguments raised by the Counsel for the OP, in a measure. The complainants cannot claim interest @ 24% p.a. They are bound by the agreement entered into between the complainants and the OP. It is to be assumed that the parties had signed the agreement with open eyes and after understanding its each and every covenant. However, we are aware of a case where the Apex Court had granted interest @ 18% p.a., wherein the money in respect of the flat was returned. This was so held by the Apex Court in the case of K.A. Nagamani v. Karnataka Housing Board, Civil Appeal Nos. 6730 -31 of 2012, decided on 19.9.2012. Even if the value is calculated at the rate of 18% p.a., it will be more than Rupees one crore.

IT must be borne in mind that there is a huge delay in handing over the possession of the premises in dispute, i.e., about four years. The OP has made attempt to feather its own nest i.e., to make profits for itself at the expense of others. The grant of Rs. 2.00 lakh or Rs. 3,00 lakh for such a huge delay will be unjust and unfair. The complainants Subhash Chander Mahajan and his wife are compelled to live in the house of their daughter. They do not have any independent house to live in. Their harassment and mental agony cannot be equated by payment of a few pea nuts. The OP has played fast and loose with the consumers.

IT is true that an amount of Rs. 20.00 lakh is wee bit on the higher side. However, the principal amount plus interest @ 18% p.a. plus few lakh of compensation will squarely bring these cases within our jurisdiction. So we decide this point in favour of the complainants in both these cases and against the OP. On our inquiry, the Counsel for the OP submitted that they will allot the flat to the complainants in the month of June, 2015. This is a huge delay. The learned Counsel of OP did not make any other submission.

KEEPING in view the facts and circumstances of these cases, we accept both these complaints, partly, and direct the OP, in CC No. 144/2011, to pay a sum of Rs. 50,78,998 with interest @ 18% p.a., from the date of deposit, till its realization. It is further directed to pay compensation in the sum of Rs. 7.00 lakh, (@ Rs. 1,00,000 per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days, it will carry interest @ 24% p.a. till its realization. We also grant a sum of Rs. 2,00,000 towards costs of this case. In the case of Complaint No. 200/2011, we direct OP to pay the complainant, Sh. Abhishek Kumar Dwivedi, a sum of Rs. 56,02,399, along with interest @ 18% p.a., from the date of deposit, till its realization. He is also granted compensation in the sum of Rs. 7.00 lakh, (@ Rs. 1,00,000 per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days, it will carry interest @ 24% p.a., till its realization. We further grant him a sum of Rs. 2,00,000 towards costs of this case.