SANJIV GOYAL 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 20, Indra Prakash Building, 21, Barakhamba Road, New Delhi which had been allotted Flat no. T 5 - G03, 10th Floor, Tower 5 admeasuring approx. 1780 sq ft. A sum of Rs.9,32,831.25 was paid by the original allottee and a Flat Buyer's Agreement (FBA) had been signed on 9/7/2011 for a sale consideration of Rs.62,18,875.00 stipulating the basic rate of the flat @ Rs.3493.75 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. 9/1/2015 failing which compensation @ Rs.5.00 per sq ft per month would be paid by the opposite party. A sum of Rs.49,62,699.26 was paid as on date in instalments. However, possession had not been offered till date by the Opposite Party despite the complainants pursuing the matter on several occasions through visits to the office of the opposite party. No details of approval by the Haryana Urban Development Authority (HUDA) was also provided by the opposite party to the complainant. A complainant was filed before the State Consumer Dispute Redressal Commission, Haryana in Consumer Complaint No. 197 of 2016 which was withdrawn in view of the shift in pecuniary jurisdiction of cases exceeding Rs.1.00 crore to the National Commission. 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 parties resisted the complaint and filed its written submissions to the complaint denying the averments of the complainant. Without prejudice, preliminary objections were taken that there was no cause of action in favour of the complainant since there was no substantial proof provided to allege deficiency of service and that this Commission lacked jurisdiction as the matter was civil in nature which was to be adjudicated only in a civil court; the liability of the parties was limited with regard to the compensation as per clause 10(c) of the FBA; the date of final construction of the flat of which possession is to be handed over was not fixed and clause 10(a) of the FBA clearly stipulates that time is not of the essence of the contract and the time mentioned was only the 'likely' time; despite the best intentions of the opposite party to execute the project after the requisite approvals, global recession in 2009 impacted the real estate sector adversely; the delay was therefore due to factors beyond its control; the FBA provides for compensation @ Rs.5.00 per sq ft per of super area per month for delay.