ARVINDER SETHI Vs. PARSVNATH DEVELOPERS LIMITED

JUDGEMENT

(1.) A complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the "Act") is filed by the complainant, Mrs. Arvinder Sethi wherein it is stated that OP had launched a residential project by the name of Parsvnath Privilege, Greater Noida, UP in the year 2007. It is stated that the complainant being taken in by the reputation of OP decided to book a flat with the OP. Pursuant thereto, the complainant and her daughter executed a Flat Buyers Agreement dated 26.12.2017 with the OP for purchase of residential apartment bearing No.T4-1401 in Tower No.T4 measuring 1855 sq. ft. at the aforesaid project for total consideration of Rs.64,70,612.50p/-. It is stated that in terms of Clause 10(a) of the Agreement the possession will be handed over by the OP within 36 months from the commencement of construction, failing which OP shall pay a sum of Rs.5/- per sq. ft. of the super area. It is stated that complainant made initial payment of Rs.3,50,000/-. It is stated that for the purpose of purchase of the flat, the complainant and her daughter availed of a term loan of Rs.61,00,000/- from State Bank of India at an interest rate of 10% p.m. It is stated that payment of each of the installment as per the time linked payment plan excluding down payment of Rs.3,50,000/- were made from the said term loan account. It is stated that OP commenced and carried out construction work from the month of December 2007 and complainant scrupulously followed the time linked payment plan. It is stated that by the end of 2008 and the beginning of 2009, the complainant and her daughter found that OP had unilaterally stopped the construction work for almost 03 months. It is stated that the complainant vide letter dated 03.03.2009 requested the OP to change the payment plan to construction linked payment plan rather than the existing time linked payment plan. It is stated that due to unilateral stoppage of construction, the OP vide letter dated 06.03.2009 changed the payment plan. However, OP did not start construction till December 2009. It is stated that complainant found that the amount, that they had deposited pursuant to time linked payment plan was much higher than the amount which were to be deposited by them in terms of construction linked payment plan and accordingly, complainant sent a letter dated 02.12.2009 to OP requesting for refund of the excess payment. In reply to the said letter, OP vide its letter dated 17.12.2009 acknowledged that they had excess amount lying with them and agreed to pay interest of 10% p.a. till the amount is adjusted in future installments. It is stated that since no construction commenced despite exchange of a spate of communications, the complainant and her daughter met the officials of OP, who assured and represented that construction would positively begin on 01.01.2010. However, neither the construction commenced nor excess money was refunded. Therefore, vide letters dated 25.03.2010 and 10.05.2010, complainant and her daughter requested for refund of the amount which were deposited by them. It is stated in response to the aforesaid letters, OP vide letter dated 10.06.2010 admitted that they had dithered in carrying out the construction and unilaterally rescheduled the date of completion and handing over possession as March, 2012. However, even this assurance was flagrantly violated and contravened by the OP. It is stated that as on February 2013 after a lapse of 03 years, OP had not bothered to refund the excess payment and raised another demand for construction of slab of 3rd floor. The complainant and her daughter again sent a letter dated 18.02.2013 highlighting the deficiency in service including the non refund of excess payment. However, the OP instead of adjusting the excess payment, vide letter dated 11.03.2013, 26.03.2013, 13.04.2013 and 01.05.2013 again raised demands. It is stated that since excess amounts were already deposited with the OP, the complainant did not make further payment. It is stated that the complainant and her daughter lodged their protest vide letter dated 24.05.2013 that they had already deposited an excess amount of Rs.18,11,771.50p and requested for refund of the said amount with interest @24% PA. It is stated that the parties settled at a special discount of Rs.8,95,000/- and therefore, by May 2013, complainant and her daughter as per the admitted position paid a sum of Rs.45,72,645.63p after receiving the special discount, which fact is clearly reflected in the letter dated 31.05.2013. It is stated that by June 2013, OP had already over shot the original deadline by about 03 years and had further overshot the deadline set by it vide letter dated 10.06.2010. It is stated that the complainant and her daughter were saddled with the liability of bank loan EMIs' with interest. It is stated that in the intervening period between August 2013 and March 2014, OP instead of expediting the construction again stopped the construction work, therefore, they once again vide letter dated 04.08.2014 requested for refund of the money with interest @24% p.a. It is stated that OP instead of refunding the amount vide letter dated 13.03.2015 and 05.06.2015 raised additional payment of service tax and VAT. It is stated that OP further raised demands vide letters dated 01.07.2015, 17.07.2015 and 05.08.2015. It is stated that even as per the ledger statement of OP, the complainant has made a payment of Rs.48,36,325.63p. It is stated even after a lapse of 08 years from the date of agreement, OP has constructed a very rudimentary structure and the land is bounded by a tin sheet instead of a permanent bounded wall and no further development has been undertaken. It is stated that OP has not delivered the possession of flat even after a period of 05 years from the original scheduled date. It is stated that the flats are still in the process of construction. It is alleged that acts and commissions of OP have caused grave mental harassment and agony to the complainant as the complainant was constrained to write several letters for refund of the excess amounts paid by it, which was adjusted after a period of 03 years. It is alleged that complainant and her daughters are constrained to pay back the bank loans with an exorbitant interest.

(2.) Alleging deficiency in service on the part of OP, present complaint is filed seeking directions to the OP for refund of a sum of Rs.48,36,325.63 with interest @24% p.a.. There is also a prayer for award of compensation of Rs.5,00,000/- and litigation expenses.

(3.) Op filed written statement wherein apart from denying the allegations of the complainant, the OP, inter-alia, raised several preliminary issues that the complaint involved complicated question of facts and law which need to be proved by leading detailed oral as well as documentary evidence and that since the proceedings before the Consumer Courts are summary in nature, this Commission has no jurisdiction to entertain the present complaint. It is stated that the complaint is bad for non joinder of parties as the flat has been booked by the complainant and her daughter Ms. Gunjan Sethi jointly. However, the complaint has been filed only by the complainant as such complaint is liable to be dismissed. Further, complainant has also not made the State Bank of India a party to the complaint as loan was taken by the complainant from SBI.