ATUL KAILA Vs. PARSVNATH DEVELOPERS LTD

JUDGEMENT

(1.) The present Consumer Complaint has been filed under Sec. 21 of the Consumer Protection Act, 1986 (for short "the Act") by Atul Kaila and her wife Bharti Kaila (hereinafter referred to as the Complainants) against Opposite Party, M/s. Parsvnath Developers Limited (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest and costs as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of "Parsvnath Privilege" located at Plot No. 11, Sec. Pi, Greater Noida, Uttar Pradesh.

(2.) It has been averred in the Complaint that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of 'Parsvnath Privilege' located at Plot No. 11, Sector Pi (Chorosia Estate), Greater Noida, UP.The Complainants booked a residential flat in the said Project in the year 2008.Flat No. T14-303, Tower No. 14 admeasuring 1855 sq. ft. was allotted to them at a basic sale price of 61,21,500/-.Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 27/3/2008.As per Clause 10(a) of the Agreement, the construction of the said flat was to be completed within 36 months from the date of commencement of construction of a particular block in which flat is located. The Complainants had opted Special Construction Link Payment Plan for making payments towards the Flat.Mr. Rohit Kaila, brother of the Complainant, had also booked a Flat in the same Project and had deposited 6,12,000/- with the Developer.But seeing no progress at the site, he cancelled his booking and had transferred the his deposited amount of 6,12,000/- in the cost of the Complainants' Flat. The Complainant had changed payment plan from Special Construction Link Plan to Down-payment Plan and had deposited 51,60,663.86ps. on different dates as per demand of the Opposite Party Developer.Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period.It is averred by the Complainant that the construction at the site remained at a standstill till the date of filing of the Complaint even after almost 7 years from the date of booking of the Flat.The Project is still incomplete and the Developer has even not received the Occupancy Certificate.The Complainants have repeatedly enquired from the Developer regarding the status of their Flat vide emails dtd. 14/1/2013, 15/2/2013 and 15/7/2013 but the Opposite Party Developer did not give any satisfactory reply and kept on delaying the matter on one pretext or the other. It was further averred in the Complaint that they have lost faith on the Opposite Party Developer and are no longer interested in having possession of the Flat.It was also averred in the Complaint that they have suffered loss of opportunity as the prices of the Flats have increased many times since the year 2008 and the Developer is indulged in unfair trade practice by offering merely 5/- per sq. ft. per month as penalty for delay in handing over possession to the Complainant while they are charging 24% interest for delayed payments from the Complainants.Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants have filed the present Consumer Complaint with the following prayer:

(3.) Mr. Anshu Mahajan, learned Counsel appearing on behalf of the Complainant submitted that the the terms of the Agreement are one-sided wherein as per Clause 10(c) of the Agreement in case of delay in construction of the Flat beyond the period as stipulated as per clause 10(a) the Developer/OP is liable to pay 5/- per sq. ft. of the super built up area of the flat per month for the period of delay in offering of possession, which is very meager and contrary to Clause 15 (a) according to which in case of delay payment, the Buyer is liable to pay interest @24% p.a.It was also submitted that the Opposite Party Developer had utilized the Complainant's money in other Projects and also transferred the funds of the present Project to other Projects.The Project is still incomplete and the Developer has even not received the Occupancy Certificate.They have no trust in the Opposite Party Developer and is no longer interested in having possession of the Flat and prayed that the Complaint be allowed in terms of the Prayer Clause of the Complaint.