Parsvnath Developers Asked To Pay Penalty by NCDRC

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
FIRST APPEAL NO. 241 OF 2015
(Against the Order dated 25/02/2015 in Complaint No. 18/2013 of the State Commission Uttar
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. NALIN BHARGAVA & ANR.
S/O. SRI SANJAY BHARGAVA, R/O. A-2, GOEL
FLATS SAI DHAM, 121/1, FAIZABAD ROAD,
NEW HYDERABADLUCKNOW-226007
2. SANJAY BHARGAVA,
S/O. SRI JYOTI PRASAD BHARGAVA, R/O. A-2,
GOEL FLATS SAI DHAM, 121/1, FAIZABAD ROAD,
NEW HYDERABAD
LUCKNOW-226007
UTTAR PRADESH
...........Appellant(s)
Versus
1. PARSVNATH DEVELOPERS LTD. & ANR.
THROUGH ITS MANAGING DIRECTOR, REGD. &
CORPORATE OFFICE; PARSVNATH METRO
TOWER, NEAR SHAHDARA METRO STATION,
SHAHDARA
DELHI-110032
2. PARSVNATH DEVELOPERS LTD.,
THROUGH ITS MANAGING DIRECTOR,
PARSVNATH PLANET, PLOT NO. TC-8, TC-9,
VIBHUTI KHAND, GOMTINAGAR,
LUCKNOWUTTAR PRADESH
...........Respondent(s)
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. JASLEEN VISWANATHAN & ANR.
W/O. MR. VIVEK VISWANATHAN, R/O. A-303
PASHUPATI APARTMENTS, 1, RAJA RAM MOHAN
RAI,
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LUCKNOW,
2. DR. VIVEK VISWANATHAN,
S/O. DR. P.N. VISWANATHAN, R/O. A-303
PASHUPATI APARTMENTS, 1, RAJA RAM MOHAN
RAI,
LUCKNOW
Versus
THROUGH ITS CHAIRMAN, REGD. & CORPORATE
OFFICE AT: 6TH FLOOR, ARUNACHAL BUILDING,
19, BARAKHAMBA ROAD,
NEW DELHI2. PARSVNATH DEVELOPERS LTD.,
LUCKNOW
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. JANMEJAI MANI TIWARI
S/O. CHANDRA BHAL MANI TIWARI, R/O.
STATION ROAD, BHAGWATI GANJ,
DISTT. BALRAMPUR,
UTTAR PRADESH
Versus
CORPORATE OFFICE: PARSVNATH METRO
SHAHDARA,
DELHI-110032
LUCKNOW
UTTAR PRADESH
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Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. INDU SINGH
W/O. MR. RAM SINGH, THROUGH POWER OF
ATTORNEY HOLDER SH. DEEPAK BHALLA, R/O.
529 K/P-12/463, PANT NAGAR COLONY, KHURRAM
NAGAR,
LUCKNOW
UTTAR PRADESH
Versus
NEW DELHI
VIBHUTI KHAND, GOMTINAGAR, LUCKNOW
UTTAR PRADESH
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. POONAM SAGAR
W/O. MR. PAWAN SAGAR, THROUGH POWER OF
ATTORNEY HOLDER SH. DEEPAK BHALLA, R/O.
1/130, VIJAY KHAND, GOMTI NAGAR,
Versus
CORPORATE OFFICE; PARSVNATH METRO
SHAHDARA
DELHI-110032
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Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. PRIYANKA MITTAL & ANR.
W/O. SH. ASHISH MITTAL, R/O. 475, SECTOR-22,
INDIRA NAGAR,
LUCKNOW
UTTAR PRADESH
2. ASHISH MITTA
S/O. SH. B.D. MITTA, R/O. 475, SECTOR-22, INDIRA
NAGAR,
LUCKNOW
UTTAR PRADESH
Versus
NEW DELHI
LUCKNOW
UTTAR PRADESH
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. MOHD. ASLAM KHAN & ANR.
S/O. MOHD. RAFIQ KHAN, R/O. A-37, SANA VILLA,
KAMLA NEHRU NAGAR, KHURRAM NAGAR,
LUCKNOW
UTTAR PRADESH
2. ISHRAT KHAN
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W/O. MOHD. ASLAM KHAN, R/O. A-37, SANA
VILLA, KAMLA NEHRU NAGAR, KHURRAM,
NAGAR,
LUCKNOW
UTTAR PRADESH
Versus
NEW DELHI2. PARSVNATH DEVELOPERS LTD.,
LUCKNOW
UTTAR PRADESH
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. DR. SUNIL KUMAR SINGH & ANR.
S/O. DR. LALLEN APARTMENTS, TG HOSTEL,
K.GM.C., KHADARA,
LUCKNOW
UTTAR PRADESH
2. MRS. DR. RICHA SINGH,
W/O. DR. SUNIL KUMAR SINGH, R/O. 703,
TEACHERS APARTMENTS, TG HOSTEL, K.G.M.C.,
KHADARA,
LUCKNOW, UTTAR PRADESH
Versus
NEW DELHI
PARSAVNATH PLANET, PLOT NO. TC-8, TC-9,
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LUCKNOW
UTTAR PRADESH
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. NEERA MITTAL & ANR.
W/O. SH. S.K. MITTAL, R/O. FLAT NO. 603,
MENARA TOWER, OMAXE HEIGHT, VIBHUTI
KHAND GOMTI NAGAR,
2. MR. ANKIT MITTAL
S/O. MR. S.K. MITTAL, R/O. NO. 603 MENARA
TOWER, OMAXE HEIGHT, VIBHUTI KHAND
GOMTI NAGAR,
LUCKNOW
UTTAR PRADESH
Versus
NEW DELHI
LUCKNOW
UTTAR PRADESH
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. DEEPAK BHALLA
S/O. LATE SH. S.K. BHALLA, R/O. BHALLA
MANSION, MAQBARA ROAD, HAZRATGANJ,
LUCKNOW,
UTTAR PRADESH
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Versus
THROUGH ITS CHAIRMAN , REGD. & CORPORATE
NEW DELHI-110001
VIBHUTI KHAND, GOMTI NAGAR,
LUCKNOW...........Respondent(s)
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. SYED GUFRAN ALI ALVI & ANR.
S/O. SYED RIAZ ALI ALVI, R/O. 529-GA/264,
KAMLA NEHRU NAGAR, OFF. RING
ROAD,KHURRAM NAGAR,
LUCKNOW-226007
UTTAR PRADESH
2. SMT. SUBBOHI ALVI
W/O. SYED GUFRAN ALI ALVI, R/O. 529-GA/264,
KAMLA NEHRU NAGAR, OFF. RING ROAD,
KHURRAM NAGAR,
LUCKNOW-226007
UTTAR PRADESH
Versus
THROUGH ITS MANAGING DIRECTOR, REGD.
OFFICE : PARSVNATH METRO TOWER, NEAR
SHAHDARA METRO STATION, SHAHDARA,
DELHI-110032
2. PARSVNATH DEVELOPERS LTD., PARSVNATH
PLANET, PLOT NO. TC-8, TC-9,
THROUGH ITS MANAGING DIRECTOR, VIBHUTI
KHAND, GOMTINAGAR,
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Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. UPPASANA MALIK
D/O. SH. C.K. MALIK, R/O. B-47, NIRALA NAGAR,
LUCKNOW
UTTAR PRADESH
Versus
NEW DELHI-110001
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. UMESH CHANDRA DIXIT & ANR.
S/O. LATE MOOL CHANDRA SIXIT, PRESENTLY
R/O. AT C/O. MR. G.C. GUPTA, 67, M.I.G. AWAS
VIKAS COLONY,
GONDA (UP)
2. SAURABH DIXIT
S/O. SHRI UMESH CHANDRA DIXIT, R/O. C/O MR.
G.C. GUPTA, 67, M.I.G. AWAS VIKAS COLONY,
GONDA, UTTAR PRADESH
Versus
THROUGH ITS CHAIRMAN, REGD & CORPORATE
NEW DELHI
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VIBHUTI KHAND, GOMTI NAGAR,
LUCKNOW
Pradesh)
WITH
IA/2314/2015,IA/2315/2015
1. PRAVIN KUMAR GOEL & ANR.
S/O. OM PRAKASH GOEL, RESIDENT OF TYPE
V-A/15, SGPGI CAMPUS, RAE BAREILY ROAD,
LUCKNOW-226014
2. NALINI GOEL
W/O. PRAVIN KUMAR GOEL, RESIDENT OF TYPE
V-A/15, SGPGI CAMPUS, RAE BAREILY ROAD,
LUCKNOW-226014
Versus
THROGH ITS CHAIRMAN, REGISTERED AND
CORPORATE OFFICE SITUATED AT 6TH FLOOOR,
ARUNACHAL BUILDING, 19 BARAKHAMBA
ROAD,
NEW DELHI-110001
2. PARSVNATH DEVELOPERS LIMITED
(PARSVNATH PLANET)
THROUGH ITS MANAGING DIRECTOR, SITUATED
AT: PLOT NO. TC-8, TC-9, VIBHUTI KHAND,
GOMTI NAGAR,
LUCKNOW-226010
BEFORE:
HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant :
For the Appellants : Shri M.L. Lahoty, Advocate with

except in FA/317/2015 Shri Paban K. Sharma, Advocate.
For the Appellants in : Ms. Ruchira Goel, Advocate.
FA/317/2015
For the Respondent :
For the Respondents : Shri Rahul Malhotra, Advocate with

Ms. Minakshi Jyoti, Advocate.
Dated : 20 Jan 2016

ORDER
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PRONOUNCED ON 20 th January , 2016
ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
These appeals arise out of single order of State Commission, hence, decided by common
order.
These appeals have been filed appellant against order dated 25.2.2015 in Complainant Nos.
18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen
Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr; 58 of 2011- Janmejai Mani Tiwari
Vs. Parsvnath Developers Ltd. & Anr; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. &
Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka
Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr.
Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath
Developers Ltd. & Anr; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr;
74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr. ; 87 of 2010- Syed Gufran Ali
Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath
Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers
Ltd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr ; by
which complaints were partly allowed.
Brief facts of the cases are that opposite parties/respondents are engaged in the activity of
housing construction and accordingly they have launched a project named as Parsvnath Planet
situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made
attractive to the vendees, in order to procure/collect money from the needy persons demonstrating
themselves to be excellence in the field of construction activity as compared to other builders and
assured the buyers/complainants that it has been duly approved by the Lucknow Development
Authority and necessary permission has also been obtained from them. The emphasis was made
by the opposite parties that the possession of the Unit shall be given within a scheduled period of
36+6=42 months stipulated in agreements executed in between the parties for the project launched
in the year 2006. The complainants/appellants attracted by the promise and assurance of the
opposite parties, somehow managed and arranged the money from their personal sources as well
as on loan at attractive rate of interest and the hard earned money was paid by them to the
opposite parties in a hope that the possession of the units shall be provided to them in the year
2009 and they can leave peacefully in their own houses, since the complainants are living in
rented houses. The complainants visited the construction site of the opposite parties after
depositing the entire amount, where it was revealed that the construction activities were on halt
and the persons available on the site told the complainants that the apartments are likely to be
completed till 2015. Even the partial construction done by the opposite parties was defective and
did not match the specifications provided in the agreement. The complainants were shocked on
hearing it and observing the site. The complainants immediately contacted the Area Manager,
who told the complainants that there is some delay in the construction of the apartment and the
apartments shall be ready till June, 2010. The complainants have to repay the amount taken on
loan alongwith interest without getting the possession of the allotted units causing irreparable loss
and injury to them. The complainants have come to know that the opposite parties have invested
the funds earmarked for this project into their other projects in other city due to which they have
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not been able to complete the project in time. Besides this, it has also come to the light that
although the opposite parties had collected huge funds from the buyers but in spite of that the
opposite parties have miserably failed to pay the dues of Lucknow Development Authority which
forced the Lucknow Development Authority to issue coercive measures against the opposite
parties for the recovery of their dues. Alleging deficiency on the part of opposite
parties/respondents, complainants filed separate complaints before State Commission.
Opposite parties resisted complaints and submitted that the complainants for the purchase of
flats in question have entered into the Flat Buyer Agreement with the opposite parties after going
through its various terms and conditions which were understood and agreed upon and thereafter
signed by both parties and thus a binding contract was entered into between the parties. Clause
10(a) of the said agreement stipulates that Construction of the flat is likely to be completed
within a period of 36 months from the date of commencement of construction of the particular
block in which the flat is located, on receipt of sanction of building plan/revised building plans
and approvals of all concerned authorities, as may be required for commencing and carrying
construction subject to force majeure, restraints or restrictions etc. and circumstances beyond the
control of the developer and subject to timely payment by the buyers in the scheme. Since on
account of global economic meltdown and severe global recession, there is some delay in
completing the project due to circumstances beyond control of the developer which not only
affected the opposite parties, but in particular affecting the real estate sector all over, therefore, in
view of these circumstances and as per the said agreement wherein it is provided that for
circumstances beyond control of the developer no claim/ damages shall lie against the developer,
as agreed to abide by the parties to the agreement, the said reliefs are not worth allowed to the
complainants. The construction completion period is to be reckoned from the sanctions by
authorities concerned for commencement of construction of project. Vide clause 10 (c ) of the
said agreement, which stipulates that in case of delay beyond the period as stipulated subject to
force majeure and other circumstances as aforesaid under sub clause (a) of clause 10, the
developer has assured to compensate for delay as per said clause which will be settled at the time
of possession. The opposite parties have already intimated their allottees that it is not in the
interest of either of the parties that project is delayed and all efforts for the completion of the
project is being made and interest of parties is to remain protected in terms of the flat buyer
agreement for the period of delay, if any, in completion of the project. In these circumstances,
there is no cause of action accrued for filing of the alleged complaint cases, as interest of the
parties is already protected by virtue of the flat buyer agreement as aforesaid. Thus, relief sought
for inter-alia of direction for delivery of physical possession of finished flats is premature,
particularly since complainants admittedly have been informed about the efforts being made by
developer to complete the project. It was, further, pleaded that the complainants are defaulters
and the interest is still due and payable by the complainants as per their respective accounts. Until
such payments are made in totality, including but not limited to payments with regard to
maintenance, registration fees etc., the possession of the said flat cannot be handed over to the
complainants. Further, there has been no agreement or understanding towards payment of 24%
interest by the opposite parties to the complainants and even otherwise the same does not arise.
As per Clause 10 (c ) of the Flat Buyer Agreement entered into by both parties, in case of delay by
the opposite parties, the liability of the opposite parties is limited to Rs. 5/- per square feet, per
month after 42 months elapsed. The complainants were required to pay instalments in accordance
with the terms and conditions of the Flat Buyer Agreement, in order to avoid penal interest and
cancellation of allotment. The complainants never paid their instalments in time. The opposite
parties never informed the complainants that the apartments were likely to be completed by 2015
as alleged in the complaints. The opposite parties have not caused the complainants any mental
agony and stress by its attitude as alleged. It was denied that the opposite parties failed to abode
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by their promise of providing possession of the flat by January, 2009, as no such promise was
given by the opposite parties. The opposite parties have never refused to hand over the physical
possession of the respective flats to the complainants as and when the same is ready. It is
submitted that the opposite parties have already applied to the authorities for completion/
occupancy certificate with respect to Towers bearing Nos. 1,2,8,9 and 10 in the month of
December, 2012. Denying deficiency on their part, prayed for dismissal of complaints. Learned
State Commission after hearing both the parties allowed complaints and directed opposite parties
to hand over the possession of flats to complainants in the year 2015. Opposite parties were
further directed to issue statement of accounts to each complainant on their demand and to pay 9%
p.a. interest on amount received in excess as per clause 10 . Complainant Nalin Bhargava in
complaint No. 18 of 2013 and Ravindra Kumar Singh in complaint No. 32 of 2012 were further
allowed to get difference of amount of rent to the tune of Rs. 14,000/- p.m. paid by them and the
amount credited by opposite parties as per clause 10 (c). Aggrieved by aforesaid order,
complainants filed separate appeals.
Heard Learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for appellants submitted that Learned State Commission committed error
in not allowing interest @ 24% p.a. after 36 months of the agreement and committed error in
allowing payment as per clause 10 (c ) of the agreement and further committed error in not
allowing compensation, hence, appeals be allowed and impugned order be modified. Learned
Counsel for appellant in FA No. 317 of 2015, further, submitted that Learned State Commission
committed error in not granting penalty on increased area. On the other hand, Learned Counsel
for respondents submitted that order passed by Learned State Commission is in accordance with
law, hence, appeals be dismissed.
Perusal of impugned order reveals that Learned State Commission refused to grant interest
and allowed penalty as per clause 10 (c ) of the agreement.
The core question to be decided is whether complainants are entitled to interest or penalty amount
beyond the terms and conditions of agreement.
Learned Counsel for appellants submitted that when there are unfair and unreasonable terms &
conditions in the agreement and parties are not equal in bargaining power, Courts will strike down
unfair and unreasonable contract. He placed reliance on the judgment of Honble Apex Court in
(1986) 3 SCC 156- Central Inland Water Transport Corpn. Vs. Brojo Nath Ganguly; in which it
was observed that courts will not enforce and will strike due unfair and unreasonable clauses in
the contract entered into between the parties who are not in equal bargaining power. In para 89 of
the judgment, an example was given that such condition will apply to situation in which the
weaker party is in a position to obtain goods or services or means of livelihood only upon the
terms imposed by the stronger party or go without them. This judgment is not applicable to the
facts and circumstances of these cases because in the cases in hand, it cannot be inferred that
opposite party was in a dominating position or stronger party and without agreeing to the terms &
conditions of the opposite party, complainants would not get flats. Opposite party is not the only
builder and there are many many builders to provide flats to the buyers. Admittedly,
complainants have signed agreement with their open eyes and never raised any objection for
deleting or modifying terms & conditions of the agreement and have not pleaded that
duress/coercion or undue influence was exercised by opposite party on complainants for
executing agreements. Learned Counsel for respondent has placed reliance on judgment of
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Honble Delhi High Court decided on 7 th February, 1994 in M/s. Unikol Bottlers Ltd. Vs. M/s.
Dhillon Kool Drinks ; in which it was held that agreement to be valid should be the result of fee
consent and unequal bargaining power is really concerned with the question of free will. It was
further observed that other circumstances to be seen are whether complainant protest before or
soon after the agreement or took steps to avoid the contract or complainant had any alternative
course of action or remedy? In the case in hand, there is nothing on record to suggest that
agreements were not executed by complainants with free will and in such circumstances, it cannot
be held that opposite party was stronger or in bargaining capacity to compel complainants to
enter into purchase agreements.
Learned Counsel for appellant submitted that as respondent was in bargaining position, terms &
conditions of agreement to sale be held to be unreasonable and inappropriate. In support of this
contention, he has placed reliance on judgment of Honble Apex Court in (1996) 4 SCC 704Bharathi Knitting Co. Vs. DHL Worldwide Express Courier, Division of AirFreight Ltd.; but
perusal of aforesaid judgment reveals that this judgment does not help to the appellant, rather
helps to respondent because it was held in the aforesaid case that when there is specific terms in
the contract, the parties are bound by the terms in the contract and order of this Commission
dismissing appeal of complainant was upheld. Learned Counsel for respondent also placed
reliance on judgment of Honble Apex Court in Civil Appeal No. 4492- LIC of India & Anr. Vs.
Smt. S. Sindhu; in which it was held that courts and tribunals cannot rewrite contract and direct
payment contrary to the terms & conditions of the contract. In the light of aforesaid judgment, it
becomes clear that parties are bound by the terms & conditions of the contract and this
Commission cannot rewrite contract and direct payment contrary to the terms of the contract.
Learned Counsel for appellant also placed reliance on judgment of Honble Apex Court in (2004)
5 SCC 65- Ghaziabad Development Authority Vs. Balbir Singh ; which has also been considered
by Learned State Commission but it does not help to the appellant because in aforesaid case, it
was observed that whenever possession is being directed to be delivered, the compensation for
harassment will necessarily have to be less because in a way that party is being compensated by
increase in the value of property he is getting. In (2009) CPJ 56 (SC)- HUDA Vs. Raje RamI; it
was observed that where possession is given at old rate, party has got benefit of escalation in price
of land, interest should not be awarded on amount paid by allottees due to delay in allotment. In
such circumstances, appellants are not entitled to get interest on deposited amount as prayed due
to delay in delivery of possession contrary to terms & conditions of agreement. He also placed
reliance on judgment of this Commission in Consumer Case No. 293 of 2014- Sunil Joshan Vs.
M/s. Parsvnath Developers Ltd.; First Appeal No. 61 of 20150 Unitech Ltd. & Ors. Vs. Syed
Hussain Tahir Kazmi & Anr.; Consumer Case No. 144 of 2011- Subhash Chander Mahajan &
Anr. Vs. Parsvnath Developers Ltd. and Consumer Case No. 347 of 2014- Swarn Talwar & 2
Ors. Vs. Unitech Ltd.; in which interest@ 18% p.a. was allowed on deposited amount till refund.
These cases are not applicable to the cases in hand because in those cases, complainant prayed for
refund of amount and while allowing refund, interest @ 18% was allowed whereas in the cases in
hand, complainants are claiming possession of allotted flat and State Commission has directed
opposite party to hand over possession. In such circumstances, in the light of aforesaid judgment
of Apex Court, complainants are not entitled to get interest as prayed on the deposited amount
from the date of deposit till handing over possession.
Learned Counsel for appellant also placed reliance on judgment of this Commission in Complaint
No. 427 of 2014- Satish Kumar Pandey Vs. M/s. Unitech Ltd. ; and Complaint No. CC/277/2013Suman Nandi & Anr. Vs. M/s. Unitech Limited & Anr .; in which while directing opposite party
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to deliver possession, interest @ 12% p.a. was allowed after 36 months of the agreement
alongwith penalty provided in the agreement. With respect, I do not agree with the aforesaid
judgments in the light of judgments referred above, I am of the view that parties are bound by
terms & conditions of the agreement and complainants are not entitled to receive any interest on
the deposited amount after due date for delivery of possession.
Learned Counsel for appellants submitted that as complainants have been deprived of
possession for a long period beyond agreed period, it amounts to restrictive trade practice under
Section 2 (nnn) of Consumer Protection Act and complainants are entitled to get compensation.
Section 2 (nnn) runs as under: restrictive trade practice means a trade practice which tends to bring about
manipulation of price or its conditions of delivery or to affect flow of supplies in the market
relating to goods or services in such a manner as to impose on the consumers unjustified costs or
restrictions and shall includea. Delay beyond the period agreed to by a trader in supply of such goods or in providing the
services which has led or is likely to lead to rise in the price;
b. Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the
case may be, services as condition precedent to buying, hiring or availing of other goods or
services;
Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which
leads to rise in the price of goods meaning thereby, more price is charged from complainant, it
amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed
delivery of possession is not charging higher rate than the agreed rate for delivery of possession of
flat, so, it does not fall within the purview of restrictive trade practice under Section 2(nnn) of
Consumer Protection Act.
Admittedly, agreements were executed in 2006 and as per agreements, possession of flats
was to be delivered within 42 months, meaning thereby, possession was to be given in the year
2009-2010 and possession has not been handed over so far though year 2016 has started. No
doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per
clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid
clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a
limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid
clause for a period of one year beyond 42 months and after that, complainants are certainly
entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants
by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring
164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause
10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying
funds more than Rs. 30.00 lakhs. As complainants have bene deprived to shift to their flats for a
long period which would not only have given them satisfaction of living in their own house but
also have raised their social status and opposite party has enjoyed funds of complainants for a
long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants
who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have
applied for flats above 175 sq. after 54 months of execution of agreement till delivery of
possession. Complainants- Nalin Bhargava in Complaint No. 18 of 2013 and complainants
Ravindra Singh in Complaint No. 32 of 2012 , are entitled to get only difference of amount from
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the amount already awarded by State Commission which has not been challenged by opposite
party.
Perusal of record reveals that in Complaint No. 987 of 2011, Pravin Kumar Goel Vs.
Parsvnath Developers , flat area of complainant has been increased and additional Rs. 7,99,997/has been demanded by opposite party from complainant but Learned State Commission has not
allowed penalty as per clause 10 (c ) for the increased area and complainants are entitled to get
penalty as per aforesaid clause on the increased area also.
Consequently, appeals filed by appellants are partly allowed and order dated 25.2.2015
passed by Learned State Commission in the aforesaid complaints is modified and opposite party is
directed to pay @ Rs. 15,000/- p.m. and Rs. 20,000/- to the allottees of flats upto 175 sq. mt. and
above 175 sq mtr respectively from beginning of 55 th month from the date of execution of flat
buyer agreement till delivery of possession of flat to the complainants and complainants in
Complaint No. 18 of 2013 and Complainant No. 32 of 2012 are entitled to receive only difference
of amount as stated above and opposite party is directed to pay penalty to complainant in
Complaint No. 97 of 2011 on the increased area as per clause 10 (c ) of the agreement.
Parties to bear their costs.
-sd/For the Appellants in :
Ms. Ruchira Goel, Advocate.
FA/317/2015
For the Appellants in :
Ms. Ruchira Goel, Advocate.
FA/317/2015
......................J
K.S. CHAUDHARI
PRESIDING MEMBER
-15-

Parsvnath Developers Asked To Pay Penalty by NCDRC

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Parsvnath Developers Asked To Pay Penalty by NCDRC

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For the Appellants : Shri M.L. Lahoty, Advocate with

For the Respondent :

For the Respondents : Shri Rahul Malhotra, Advocate with

Dated : 20 Jan 2016

-sd/For the Appellants in :

Ms. Ruchira Goel, Advocate.

Ms. Ruchira Goel, Advocate.

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