DIGVIJAY REAL ESTATE DEVELOPERS CONSUMER COMPLAINT wherein court allowed refund compensation for delay.
VARUN SALWAN VS M/S DIGVIJAY REAL ESTATE AND OTHER
The complainant had filed a case under Section 17 of the Consumer Protection Act, 1986, against the opposite parties before the State Consumer Disputed Redressal Commission, Punjab Chandigarh.
COMPLAINANT:
Varun Salwan S/o Sh. Vipan Salwan R/o Near Axis Bank
RESPONDENTS / OPPOSITE PARTIES:
- M/s Digvijay Real Estate Developers Pvt. Ltd., Suit No. 4-G, Uppal’s M-6 Plaza, Jasola District Centre, Jasola, New Delhi, through its Managing Director.
- The New World Buildcon Pvt. Ltd. Tata Motors, One Forbes, 5th Floor, Dr. V.B. Vipps Centre, Masjid Moth, Greater Kailash-II, New Delhi through its M.D.
- The Golden Green Towers (P) Ltd., 39, Mall Road, Amritsar through its M.D.
- The Alpha G. Corp. Development Pvt. Ltd. 10, Floor Ashoka Estates, 24, Barakhambha Road, New Delhi through its M.D.
Also Read- Vaurn Salwan vs M/S Digvijay Real Estate And Other
CORUM:
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
FACTS:
The complainant had booked an apartment/flat No. 401, Tower 12-D consisting of super area of 1775 sq. feet on the 4th floor of Golden Greens Project situated at Batala Road, Amritsar vide allotment letter dated 8.12.2011 by Op No. 1. The complainant opted for payment plan ‘B’ flexi payment plan. The total price of the flat was fixed as Rs. 38,01,330/-, out of which a sum of Rs. 3,54,282/- was paid on 7.12.2011. After sometime, the project was taken over by Op No. 2 and then by Op No. 3 as per the latest information available with the complainant. Various payments have been made by the complainant approximately Rs. 30 Lacs on various dates as per the schedule of the Ops. At the time of execution of the agreement, the Ops had given assurance to the complainant that the flat will be handed over to him on or before January, 2014 but till date neither the possession was offered nor handed over. There was a penal clause in the agreement that in case the Ops failed to deliver the possession within the time then they will pay Rs. 3/- per sq. ft. per month to the complainant. Alleging deficiency in services on the part of Ops, the complaint has been filed to refund the amount deposited by the complainant with Ops along with interest @ 18%, pay Rs. 15 lacs as compensation, pay Rs. 1 lac as litigation expenses.
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ARGUMENTS BY THE COUNSEL FOR OP NO.3:
The counsel pleaded that there is no deficiency in service or unfair trade practice on the part of this Op; complaint involved disputed and complicated questions of law and facts, which cannot be adjudicated before this Commission in the summary procedure, therefore, the matter be relegated to the Civil Court; the complainant had purchased the flat for speculative purposes for re-sale, therefore, he is not a consumer as defined under the Act; the complainant has concealed the material facts from the Commission.
It has been denied that the project was taken over by Op No. 2 from Op No. 1. The project has been taken over by this Op and is being executed. It has also been denied that the project was also taken over by Op No. 4.. The complainant failed to make the payment as per the time plan given in the payment plan. It has been denied that the complainant had paid a sum of Rs. 30 Lacs approximately. Due to non-payment of the instalments by the complainant, the project has been delayed. Further Ops had offered 2 BHK flat to the complainant, which was initially accepted but later on retracted by the complainant. It has been denied that there is any unfair trade practice or deficiency in service on the part of Ops. Complaint is without merit, it be dismissed.
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JUDGEMENT:
The court stated that the objection taken by Op No. 3 that the complainant is not a consumer and that the flat was booked by the complainant for speculative purposes i.e. for resale, holds untrue. It has been stated that the complainant booked 4 flats i.e. flat No. 12-D 401 in the name of the complainant, Flat No. 12-D 402 in the name of Rekha Salwan, Flat Nos. 5A-404 and 5A-404 in the name of Yogital Sarpal and Rajesh Sarpal and both these flats were surrendered by Yogital Sarpal and Rajesh Sarpal. The Op has not placed on the record any other evidence, which may prove any other property in the name of the complainant in Amritsar. The counsel for the Ops also failed to place on the record that previously the complainant had been trading in the real estate. In case no such evidence has been produced by the Ops that the complainant own any other immovable property in his name in Amritsar or that he had trading in the real estate in the past, therefore, it cannot be said that the flat was booked for resale and for speculative purposes.
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With reference to the case of Pranab Basak v. Suhas Chatterjee, it was observed by the Hon’ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. Therefore, the plea raised by the counsel for the Ops that the flat was booked for speculative purposes cannot be agreed by the court. Further, no buyer’s agreement was executed by Ops despite provision under Section 6 of the PAPRA. As per Clause 12, the possession was to be delivered within a period of 30 months from the date of start of the construction. No specific date of start of the construction has been given but in case after receiving the booking amount on 6.12.2011, further payment of Rs. 6,71,000/- was taken on 15.12.2011. neither the possession was offered nor handed over nor the refund was given by the Ops then it will be a recurring cause of action, therefore, we do not agree with the plea raised by the counsel for the Ops that the complaint filed by the complainant is barred by limitation.
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It has been argued by the counsel for Op No. 3 that complicated questions of law and facts are involved in the matter, which cannot be redressed in summary procedure, therefore, the matter be referred to the Civil Court. However, the court found that, after going through the facts and findings of both the parties that there are not any complicated questions of law and facts involved, which cannot be adjudicated by this Commission and the matter needs to be referred to the Civil Court. In the judgment of Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi, it was held that ‘the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the ‘Consumer Fora’ after obtaining evidence and if need be after getting an expert opinion’. Further reference can be made to Shiv Kumar Agarwal v. Arun Tandon and another, it was decided by the Hon’ble National Commission complicated questions of fact and law will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled – Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. Therefore, we are of the opinion that this Commission is fully competent to decide this complaint and no cause of action is made out to refer the case to the Civil Court.
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The court was of the opinion that there is deficiency in services on the part of Ops and in case the construction is not completed within the agreed time then the complainant has a right to withdraw from the scheme and to seek the refund.
According to rule 17 of the PAPRA, the Ops are liable to pay interest @ 12% in case of refund. The court was of the opinion that this rate of interest is quite reasonable rate of interest. In number of similar complaints, it has also allowed the interest @ 12% p.a. i.e. Consumer Complaint Meenakshi Puri v. Country Colonizers Pvt. Ltd. & Ors., decided on 28.11.2017 and Lt. Gurnur Singh Mahiwal & Anr. Versus M/s Country Colonisers Pvt. Ltd. & Ors, decided on 4.1.2018.
The court concluded by directing the Ops to give effect to the prayers of the complainant mentioned in the complaint.
Also Read- File Your Complaint Online With Rera Punjab
This post is written by Gopika Thakur.
For case specific advice please contact Punjab State Consumer Disputes Redressal Commission Lawyer Advocates in Chandigarh Panchkula Mohali Kharar Zirakpur.
MORE ON 99888-17966.
