MRS. NEENA SANDHU, MEMBER

1.       This is an appeal filed by the OPs/appellants against the order, dated 9.11.2009 passed by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 1036 of 2009 vide which, it allowed the complaint and directed the OPs to pay interest @ 12 % p.a. on the amount of Rs.21,51,750/- w.e.f. 16.1.2009, till the last day of the month, in which the possession was delivered to the complainant. The OPs were also directed to pay Rs.10,000/- as litigation costs. The Ops were further directed to pay the monthly compensation by the 7^th of each following month, failing which interest @ 12% p.a. till the date of payment, shall be paid to the complainant. The Ops were further directed that if the possession was not delivered within six months from today, the Ops would refund the entire amount of Rs.21,51,750/- to the complainant, if he so desires.

2.       Briefly stated, the facts of the case, are that the complainant applied for allotment of flat with the OP Company in his name and in the name of his wife jointly. It was stated that the OPs sent the confirmation letter dated 1.3.2006 to the complainant confirming. The allotment of Flat No.189, 1^st Floor in Silver City Themes, Derabassi to him. Thereafter, an agreement dated 20.2.2006 was executed between the parties through Mr.Rajesh Basin, Marketing Manager of Ops company. As per Clause 3 of the agreement, the payment was to be made in five installments. It was further stated that at the time of booking, 10% of the total cost of the apartment was also to be paid towards earnest money. The installments were duly paid by the complainant regularly, in time, to the Ops, and they were to deliver the possession of the flat on 31.7.2007, which was also the final date of payment of last installment i.e. 5% of the total amount. It was further stated that the complainant also visited the office of the Ops to deposit the last installment, as per terms of agreement but the Ops arbitrarily refused to accept the same, on the pretext, that the flat, had, not yet been completely constructed. The complainant paid the installments amounting to Rs.21,51,750/- which came to be 95% of the total price but the OPs failed to raise any construction. It was further stated that the above said act of the OPs, amounted to deficiency, in service, and they also indulged into unfair trade practice. Hence, the complaint was filed.

3.       Reply was filed by the OPs, wherein, they admitted the receipt of Rs.21,51,750/- from the complainant. It was stated that the total cost of the flat was Rs.22,65,000/-. It was also admitted that the construction was stopped and delayed due to the reasons, beyond the control of the OPs under force majeure circumstances, as some Public Interest Litigation titled as Dharam Chand & Another Vs. State of Punjab and others bearing CWP No.18632 of 2005 was filed in the Hon’ble Punjab and Haryana High Court, in which the Hon’ble Court vide its order dated 30.1.2007 stayed the notification dated 17.1.2006 of Punjab Pollution Control Board, which stay was finally vacated vide order dated 1.5.2008. It was further stated that the complainant himself did not deposit the installments, in time and on his request, no penal interest on delayed payment was imposed. It was denied that the complainant allegedly visited the office of the Ops to deposit the last installment. It was further stated that the complainant was informed of each and every development of the project, regarding the stoppage of construction, start thereof etc. It was also denied that the Ops adopted an unfair trade practice and induced the complainant to invest huge amount in their project, allegedly without obtaining NOC from the Punjab Pollution Control Board.  All other allegations, levelled by the complainant, in the complaint, were denied being wrong.

4.       The parties led evidence, in support of their case.

5.       The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the judgment.  

6.          Aggrieved by the order passed by the learned District Forum, the OPs/appellants filed the instant appeal. 

7.       We have heard Sh.Surinder Gera, Law Officer on behalf of appellants/OPs, Sh.Amit Rajan, Advocate for respondent/complainant and, gone through the written arguments, evidence and record of the case, carefully.

8.            Sh.Surinder Gera, Law Officer on behalf of OPs/appellants has submitted that definitely, there was delay in completing the project but it was not due to the fault of the OPs, but due to circumstances, beyond their control as there was stay from the Hon’ble Punjab and Haryana High Court in CWP No.18632 of 2005 titled as Dharam Chand & Others Vs. State of Punjab. He further submitted that, therefore, the OPs were unable to raise any construction. In support of his contentions, regarding the force Majeure clause, the Law Officer placed reliance on Southern Gas Ltd. Vs. Visveshwaraya Iron and Steel Limited, 1999(1) RCR (Civil) Page 444. It was further submitted that it was the complainant, who never adhered to the terms of the agreement and did not make the payment in time. It was further submitted that now the construction on the site, was in full swing and the OPs will hand over the possession of the flats within a short span of time. It was further submitted that the buyers have already agreed to take possession of their respective flats by the end of June, 2011. It was further submitted that some of the cases have already been amicably settled, between the parties, and, in this regard, the OPs placed on record a copy of the order dated 20.8.2010 passed by the Punjab State Commission, in which it was held that “the respondents shall deliver the constructed flats as per the original agreement to the complainant on or before 30.6.2011 and in case the respondents failed to do so, the respondents shall refund the entire money alongwith interest @ 18% p.a. from the date of deposits till the date of payment on or before 15.7.2011.” It was submitted that this Commission has no territorial jurisdiction to adjudicate upon the matter as the property is situated in Derabassi (Punjab), hence, the Punjab State Commission has the territorial jurisdiction to adjudicate this matter.  It was further submitted that the present complaint was not maintainable because there is an arbitration clause in the agreement and, therefore, the matter should have been referred to the arbitrator. In support of this submission, the OPs placed reliance on the judgment passed by the Hon’ble Supreme Court in titled as Markfed Vanaspati & Allied Industries Vs. Union of India, 2007(4) RCR (Civil) 358. It was further submitted that the learned District Forum declined the request of the OPs, to cross-examine the Local Commissioner. It was further submitted that the interest awarded by the learned District Forum @12% p.a. was on the higher side. It was further submitted that it was wrongly awarded from 16.1.2009. It was further submitted that there was no deficiency in service or negligence on the part of OPs and the delay occurred on account of the aforesaid circumstances. 

9.       The learned counsel for the respondent/complainant, contended that the order passed by the learned District Forum is just, fair and proper. It was further submitted that, as per agreement, the complainant had paid a total sum of amount of Rs.21,51,750/- (i.e. 95% of the total amount of Rs.22,65,000/-) and he had to pay only 5% of the total amount of the cost of the flat, at the time of taking possession of the said flat, but the OPs failed to give possession, even till today. Hence, there was a deficiency, in service, on the part of OPs and they also indulged into unfair trade practice. 

10.     From the facts and circumstances of the case, we have come to the conclusion that definitely there was a deficiency, in service, on the part of OPs, because they failed to give possession of the flat to the complainant, within the stipulated time, as agreed upon. There is, no doubt, that there was a stay from the Hon’ble Punjab and Haryana High Court in CWP No. 18632 of 2005 for the period from 30.1.2007 to 1.5.2008. Due to this reason, the OPs could not raise construction on the site. If we exclude this period, from the proposed date of delivery of possession i.e. 31.7.2007, even then, the OPs were required to give possession of the said flat to the complainant either by the end of 2008 or by the beginning of 2009, but the OPs failed to give possession of the flat even till today, whereas as per the agreement, the complainant had performed his part of the contract by depositing 95% of the total amount and rest 5% of the total amount, was to be paid by the complainant, at the time of taking the possession of the said flat. Thus, the complainant is entitled to interest on account of delay, in not handing over the possession in time and the order passed by the learned District Forum is just, fair and proper and no interference is called for.

11.     In view of the above discussion, we dismiss the appeal filed by the appellants/OPs and uphold the order passed by the learned District Forum.

12.          Copies of this order be sent to the parties, free of charge. 

Pronounced.                                                                        

26^th April, 2011