Post covers PARADIGM BUSINESS VENTURES Consumer Complaint Of project Hermitage park possession delayed.
SUNNY DHURIA V. M.S PARADIGM BUSINESS VENTURES
This is a suit filed before the State Consumer Disputes Redressal Commission, Punjab, Chandigarh where the complainant filed a complaint against the respondents under Section 17 of the Consumer Protection Act, 1986, seeking compensation.
COMPLAINANT:
Sunny Dhuria
RESPONDENTS:
M/s Paradigm Business Ventures- partners Vijay Kumar Jindal and D.R. Singla
M/s Paradigm Business Ventures – Manager Operation / authorized representative
State Bank of India
CORUM:
Mr. Rajinder Kumar Goyal, Presiding member
Ms. Kiran Sibal, Member
FACTS:
The opposite party floated a housing project called the Hermitage park at Zirakpur, district Mohali, which was promoted by Paradigm Ventures and claimed to provide world class facilities in flats such as earthquake resistance RCC structure, apart from good flooring etc. The complainant being allured by the advertisement issued by the opposite parties applied for the allotment of a 3 BHK flat with the opposite parties, which was allotted in the month of January 2017. The complainant already paid an amount of Rs.44,95,489/- on different dates to the opposite parties against the total cost of Rs.51,07,700/- but later on the complainant sort bigger flat of 4 BHK instead of 3 BHK and made request to the opposite parties to swap the flat from 3 BHK to 4 BHK as he is ready to pay the excess differential amount. The opposite parties agreed and adjusted the amount already paid. Thereafter, the complainant entered into a separate Flat Buyers Agreement with the opposite parties.
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The complainant deposited a sum of Rs.1,00,000/- on 12.01.2017 and thereafter Rs.3,95,000/- on 20.03.2017 with the opposite parties. Thereafter, an allotment letter was issued to the complainant on 22.03.2017 wherein he was allotted a Flat No.402, 4th floor, in Tower T-05 in the Hermitage Park Housing Project at Zirakpur. As per the terms and conditions of the Flat Buyers Agreement, opposite parties were to deliver the possession of the flat complete in all respects after obtaining Completion/ Occupation Certificate by September, 2019. Since the complainant has already raised the home loan of Rs.45,00,000/- from the opposite party No.4, the opposite parties have given permission to mortgage the said flat in the favour of opposite party No.4- Bank vide mortgage letter dated 23.12.2017. Out of the sanctioned home loan of Rs.45,00,000/- , a sum of Rs.40,00,489/- was disbursed by the opposite party No.4 to the opposite parties No.1 to 3 against the receipt dated 13.04.2017. The total consideration for the 4 BHK flat was Rs.62,32,700/-.
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As per the Construction Linked Plan, the complainant paid the amount as and when demanded and never refused to pay any amount. After payment of Rs.44,95,489/- no demand was ever raised by the opposite parties and stopped the construction in between without any reason and justification. On enquiry, it was informed by the opposite parties that they have not received the requisite permissions from the competent authority to complete the construction of the flat allotted to the complainant. As per clause 7.1 of the terms and conditions of the agreement entered between the parties on 13.11.2017, the opposite parties were required to handover the possession of the flat by 30.09.2019 but neither the construction was complete as per the specifications nor delivered the possession of the flat to the complainant. The complainant on visit to the site on 25.05.2020 found that Tower No.5, in which the allotted flat is there is incomplete. Also, the opposite parties have not obtained the Completion/ Occupation Certificate by the competent authorities with regard to the tower in question. The opposite parties have violated the terms and conditions of Punjab Apartments and Property Regulations Act, 1995 (PAPRA). This act and conduct of the opposite parties amounts to deficiency in service an unfair trade practice on their part.
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ARGUMENTS BY THE COUNSEL FOR THE COMPLAINANT:
The counsel argued that the flat, in question, was purchased by the complainant for his personal use and necessity after raising the home loan from opposite party No.4. The opposite parties failed to deliver the possession of the flat as per the terms and conditions of the Buyers Agreement, even after the complainant had already made 72% of the total sale consideration. The opposite parties were required to deliver the possession of the flat, as per Clause 7 of the Flat Buyers Agreement, after obtaining the Completion/ Occupation certificate from the competent authorities by September, 2019. The evidence of photographs show that the flat was not in habitable conditions. As per the plan chosen by the complainant, whenever the demand was raised by the opposite parties, the amount was duly paid. The complainant was also paying the interest on the loan amount. the opposite parties have not even completed the construction of the flat in question, allotted to the complainant, which was to be delivered by the September 2019. The Certificate produced by the opposite parties is a Partial Completion Certificate as well as the NOCs are related to Tower No.1 to 3, whereas the complainant has been allotted the flat in Tower-5.
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ARGUMENTS BY THE COUNSEL FOR THE RESPONDENTS:
The counsel for opposite parties No.1 to 3 argued that the complaint file by the complainant was pre-mature as according to Clause 33 of the agreement to sell, the Commission has no jurisdiction to entertain and try the complaint as only the adjudicating officer of the RERA is empowered to hear and resolve the dispute.
They also said that the consumer is an investor and not a consumer as the complainant opted to choose the construction property plan and not the ready to move in house, even though he was in a dire need of a residential home for personal use. They also claimed that the complainant had presented false and frivolous facts. The opposite parties are developing the flat as per the approved layout plan. The tower in which the flat is satiated will be completed very soon. The opposite parties have not violated any provisions of the PAPRA and have acquired the required permission from the concerned authorities. The opposite parties have not indulged in any kind of unfair trade practices and not cheated anybody.
According to the arguments filed by opposite no.4, it contented that the dispute is between the complainant and the opposite parties no.1 to 3 and they have been unnecessarily been pleaded as a party in the case. The loan was availed to the complainant by opposite party no.4 and an outstanding amount in the loan is Rs.45,87,568 as on 16.09.2020. They also contended that the complainant should be entitled to refund of the amount, the same may be first appropriated towards the loan account to the complainant.
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JUDGEMENT:
Regarding the first objection raised by the opposite parties no. 1 to 3 about the complainant is a consumer or an investor, it was observed that there was no evidence given from the side of the opposite parties to prove that the complainant is indulging in sale/ purchase of property or for getting better returns. Simple assertions by the opposite parties are not sufficient to prove this fact. In the case of M/s Ireo Fiveriver Pvt. Ltd. V. Surinder Kumar Singhla & Others, the Hon’ble National Commission held that as the complainants are consumer as the appellant had failed to show any cogent evidence, which may indicate that the respondents/ complainants or any of them have been indulging in sale purchase of the properties or that the complainant or any of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the present case, opposite parties no. 1 to 3 failed to prove any evidence that the complainant indulged in sale/ purchase of properties or for earning profits. The said objection is rejected and the complainant is held to be a consumer.
Regarding the second contention of the opposite parties no. 1 to 3, it is relevant to mention that as per Section 3, provision of the C.P. Act are in addition to and not in derogation of the provisions of any other law for the time being in force. There is no inconsistency between the provisions of the two central acts. The introduction of RERA, did not oust the jurisdiction of the C.P. Act. It has been laid down by the Supreme Court through various judgements that the Commission is competent to entertain and decide the present complaint and the provisions of the RERA do not bar the jurisdiction of the Consumer Fora. The said contention was dismissed.
Clause 7.1 of the agreement states that the promoter agrees and understands the timely delivery of possession of the apartment is the essence of the agreement. The promoter, based on the approved plans and specifications, assured to hand over possession of the apartment on September 2019 unless there is a delay or failure due to ward, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project and in such conditions, the allottee agrees and confirms that the allotment shall stand terminated and the Promoter shall refund to the allotee the entire amount received by the Promoter from the allotment within 90 days from the date of termination of the allotment.
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As the payment was linked to the Construction plan, the opposite parties were required to send the demand notice as per the construction stages. However, no such evidence has been produced by the opposite parties. The opposite parties failed to present any document in rebuttal to their averments to show that the project is complete and is ready for possession or the construction of the project is in full swing. Mere assertion without producing any documents in their evidence clearly indicates that the opposite parties have nothing to prove this fact. They have also failed to provide convincing reasons for non-development of the project and non-delivery of possession of the flat nor proved any evidence on record which can be inferred that any Force majure circumstances prevented them from completing the project within the stipulated time. Due to the non-delivery of the possession of the flat, the compliant has suffered mental agony, harassment and financial loss. This act and conduct of the opposite parties amount to deficiency in services and unfair trade practices.
The opposite parties have also violated the terms and conditions of the PAPRA as they have failed to handover the possession to the complainant within the stipulated time.
Regarding opposite party no.4, the complaint has not sort any relief against opposite party no.4. The opposite party had provided the loan facility to the complainant only to purchase the residential house. The complaint filed against opposite party no.4 deserves to be dismissed.
The Commission in the favour of the complainant and asked the opposite parties no. 1 to 3 to refund the money with an interest as well as paying the outstanding amount to opposite party no.4 towards the loan advanced by the complainant and returning the remaining amount to the complainant. They shall also pay an extra amount as compensation for the mental agony and harassment caused to the complainant as well as the litigation expenses.
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