GULSHAN KUMAR KAPOOR Vs. PARSVNATH DEVELOPERS LIMITED

JUDGEMENT

(1.) This consumer complaint under sec. 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.

(2.) The complainant states that he obtained a flat in "Parsvanath Royale", a project promoted and developed by the opposite party in Sector 20, Panchkula, Haryana on transfer from the original allottee, M/s Vardhaman Associates Pvt. Ltd., Ground Floor, Indra Prakash Building, 21, Barakhamba Road, New Delhi which had been allotted Flat no. T 7-1001, 10 th Floor, Tower 7 admeasuring approx. 1740 sq ft. A sum of Rs.8,90,662.50 was paid by the original allottee and a Flat Buyer's Agreement (FBA) had been signed on 5/5/2011 for a sale consideration of Rs.59,37,750.00 stipulating the basic rate of the flat @ Rs.3412.50 per sq ft plus other charges for EDC, infrastructure development, etc. Under clause 10(a) of the FBA, subject to force majeure events, the period of completion of the project was stated to be 36 months with another 6 months as grace period from the date of signing of the FBA, i.e. 5/11/2014 failing which compensation @ Rs.5.00 per sq ft per month would be paid by the opposite party. A sum of Rs.47,44,142.00 was paid as on 12/12/2013. However, possession had not been offered till date by the Opposite Party. In view of the fact that the project had not been completed on time, the complainant is before this Commission alleging deficiency in service with the prayer to direct the opposite party to:

(3.) The opposite party resisted the complaint and filed his written submissions to the complaint denying the averments of the complainant. Preliminary objections were taken that (i) the complainant was not a 'consumer' under the Act since he was a subsequent allottee who was a resident of the United States of America and had booked the flat for investment purposes; (ii) this Commission lacked jurisdiction as the matter was civil in nature; (iii) the complaint was filed without adducing any proof of deficiency in service; (iv) against the terms of the FBA which provided for compensation @ Rs.5.00 per sq ft per of super area per month for delay and interest @ 12% only if the project was abandoned which was not the case and therefore relief sought was beyond the contract; (v) the complainant had not disclosed that he was a defaulter who had not paid the instalments due and (vi) there was no justifiable cause of action. On merits, it was stated that the complainant was not the original allottee but had been allotted the flat based on approval of Transfer Form dtd. 12/4/2011 when the rights of the allottee were assigned to the complainant and FBA dtd. 9/7/2011 was signed. The opposite party had waived interest on delayed payments by the original allottee and the complainant till 12/4/2011 vide latter dtd. 16/6/2011; however, default in payments continued leading to reminders dtd. 15/3/2012, 1/8/2012, 6/2/2013 and 1/10/2013. It was submitted that as per clause 10(a) of the FBA, the period of 36 months for construction was only a tentative indication and the opposite party could not be held to that timeline. The complainant was to make payments as per the Construction Linked Payment Plan of the project and the opposite party had regularly updated the complainant of the status of the project. Due to default in payments by the allottees on account of global recession, the opposite party contends that it had faced liquidity issues which was a force majeure event and hence the indicative date in clause 10(a) did not apply. On 14/7/2015, the opposite party had conveyed in writing to the complainant that the construction of Tower 7 was expected to be ready by December 2016. The complaint is stated to be misplaced and the complaint is prayed to be dismissed.