^{Argued by:      Sh. HPS Kochhar, Adv. for complainants.}

Sh.Kuldip 4 to 7

Sh. Vineet Sehgal, Adv. for OP-2.

OP-3 ex-parte.

PER ^{SHRI JAGROOP SINGH MAHAL, PRESIDENT}

                  ^{Succinctly, the complainants applied and booked a flat in “Golf View Towers” Group Housing Site No.9, Sector 91, SAS Nagar, Mohali, to be constructed and developed by the firm of OPs 1 to 3 and paid a sum of Rs.75,000/- vide cheque dated 1.2.2007 as booking amount. The OPs issued letter  dated 2.2.2007 acknowledging the cheque, provisionally allotted a flat, gave the price of the apartment as Rs.33 lacs and also the payment schedule. Cash discount was Rs.2 lacs if the lump sum was made. The complainants took loan and made the payment of Rs.31 lacs in lump sum to OPs 1 to 3 and on 24.2.2007 an agreement to sell was entered into between the complainants and OPs 1 to 3 as per which the total cost of the flat, after the cash discount of Rs.2 lacs, was Rs.31 lacs and OPs 1 to 3 were to complete the construction of the apartments by December, 2008, but till the 1st week of August the OPs did not even start the construction of project.  However, the complainants received letters dated 25.8.2008 and 15.9.2008 from some Hill View Promoters demanding a sum of Rs.3.75 lacs more due to escalation of prices, though there was no agreement of the complainants with them.  As the OPs 1 to 3 delayed the project without any rhyme or reason, the complainants served a legal notice dated 27.9.2008 to compensate them for the delay and other costs, but to no avail.  Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.}

2.                   ^{OP-2 filed her short reply by way of affidavit stating that she came to know about certain illegal and unilateral acts committed by the 2nd partner i.e. Mrs. Apjeet Kaur in connivance with her husband Sh. SPS Chhina in the project in which the complainants had booked their residential apartment and she brought the same to the knowledge of the HDFC Bank who was the financier but no action was taken by them. Further she decided to dissolve the partnership concern and in this regard Memorandum of Understanding was drafted and signed by both the partners and in furtherance of dissolution of partnership firm an Admission-cum-Retirement Deed was executed as per clause 1 of which the outgoing/retiring partner would not be responsible for any liability incurred or to be incurred by remaining partners of the partnership firm.  Pleading that since she ceased to be a partner since 28.12.2007 and the present complaint was instituted in 2008, therefore, she cannot be made liable, prayer for dismissal of the complaint qua her has been made.}

3.                   ^{OPs 4 to 7 filed their separate written statement and pleaded that OP-4 purchased the project from OP-1 with the intention to complete the same at the earliest.  It has been stated that the OP-4 was bound by the terms and conditions of the agreement entered between OP-1 and the complainants.  It has been stated that the escalated price sought was on very lesser side and the same was as per the assessment done by HDFC Ltd.  Legal notice dated 16.9.2008 of the complainants was replied vide letter dated 2.11.2008.  It has been pleaded that since the purchase of the project the work is in full swing and the delay was because of withdrawal of change of land use permission by Govt. of Punjab which was reported in the newspapers and further the NOCs issued to the colonizers were cancelled by the Punjab Pollution Control Board on the direction of the Hon’ble Punjab and Haryana High Court. Relying upon clauses 5, 6, 10, 13 & 14 of the agreement and pleading that neither there has been any deficiency in service nor any unfair trade practice on their part, prayer for dismissal of the complaint has been made.}

4.                   ^{Learned counsel for the OP-1 gave statement dated 8.4.2009 adopting the reply & evidence filed by OPs 4 to 7.}

5.                   ^{OP-3 was duly served but none appeared on her behalf, hence she was proceeded against exparte.}

6.                   ^{Parties led evidence in support of their contentions.}

7.                   ^{We have heard the learned counsel for the contesting parties and have also perused the record.} 

8.                   ^{Annexure C-4 is the agreement to sell vide which the flat was to be allotted to the complainant on payment of Rs.31 lac.  Annexure C-1 and C-3 are the booking receipt and Loan Tripartite Agreement showing that the entire payment of Rs.31 lac has been made by the complainant by 24.2.2007. Clause 13 of the agreement (C-4) shows that the construction of apartments was to be completed by December 2008.  It is, however, admitted that no construction has been started at the spot.  The OPs rather played a trick by allegedly transferring the project in favour of OP-4 which has OPs 5 & 6 as its partners.  OP-4 thereafter wrote a letter Annexure C-5 to the complainant alleging that there had been increase in cost of construction by Rs.3.75 lacs and, therefore, he should pay Rs.2.75 lac more.  When the amount was not paid another letter (Annexure C-6) was issued again asking for a sum of Rs.2.75 lac and overdue amount.  The complainant was informed through Annexure C-6 that the escalated cost has already been paid by 26 members.  The learned counsel referred to Annexure C-6 in which it was mentioned that if payment was not received within 30 days, they would deduct 10% of the amount already paid and shall refund the balance amount.  It is argued that it is an unfair trade practice adopted by the OPs for which they would be liable to pay compensation.} 

9.                   ^{It is argued by the OP-2 that she was earlier a partner in OP-1 alongwith OP-3 but when OP-3 Apjeet Kaur started committing fraud, she opted out of the company regarding which a retirement deed was drawn and new partner Surinder Pal Singh Chhina was introduced.  The complainant was not a party to this document. When the payment of Rs.31 lacs was made, OP-2 was a partner in the firm (OP-1).  The unilateral withdrawal or retirement of OP-2 from the firm would not absolve her of her liability to pay the amount or to bear the consequences unless the complainant agreed to the same, which he did not.  The retirement deed does not, therefore, absolve OP-2 of her liability.}

10.                 ^{OP-4 which is comprised of OPs 5 & 6 has taken over the project and have undertaken to deliver possession of the premises by 24.02.2010.  This agreement is in continuation of the previous agreement (Annexure C-4).  All the six OPs would be, therefore, liable to perform their part of the service in connection with the construction of the flats, payment of compensation and delivery of possession.}

11.                 ^{The learned Counsel for the OP has referred to Clause 14 of the Agreement (Annexure C-4) vide which the OPs undertook to deliver possession of the Apartment to the Purchaser within 3 years from the date of execution of the agreement, failing which to pay Rs.20,000/- per month for the period for which the delivery of possession is delayed. This Agreement (Annexure C-4) was executed on 24.2.2007, which means that the possession would be delivered to the Complainant by 24.2.2010, failing which the OPs would pay to the Complainant Rs.20,000/- per month, in view of Clause 14 of the Agreement.}

12.                 ^{The OPs No. 4 to 7 in preliminary objection no.1 of their reply have stated that in view of Clause 5 of the Agreement, the Complainant is at liberty to get the refund of the money deposited by him, along with interest @9% per annum within 90 days from the receipt of the intimation to them. Even at the stage of arguments, this offer was given to the Complainant, but he declined the same, alleging that now cost of construction has increased and they would not be able to get this house for the amount which would be refunded to them. This argument appears to be fallacious. When the OPs informed the Complainant that there is escalation in the cost of construction by Rs.3.75 lacs, the Complainants opposed the same. Even as per the Complainants, this Apartment should be available for Rs.31.00 lacs. Moreover, in addition to Rs.31.00 lacs the Complainants are to get interest thereon at the rate of 9% per annum, which would compensate them for any escalation in price, if any. The denial of the Complainants is, therefore, based on greed. However, even now, the Complainants would be free to make use of Clause 5 of the Agreement.}     

13.                 ^{In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is according allowed and the following directions are passed against the OPs :-}

a)         ^{The OPs are directed to complete the construction and deliver possession of the allotted flat to the complainant preferably by 24.02.2010;}

b)         ^{The OPs are directed not to demand the amount of Rs.3.75 lacs or any other amount as increase in the construction cost of the flat;}

c)         ^{The complainant would not be forced to sign any fresh supplementary agreement for the increase in the cost of the flat;}

d)         ^{If the possession of the flat is not delivered to the complainant by 24.02.2010, the OPs shall pay Rs.20,000/- per month with effect from 1.3.2010 till the last day of the month in which the possession is actually delivered, as demanded by the Complainants vide Para 16(c) of the Complainant;}

e)         ^{The OPs shall pay Rs.5,000/- as costs of litigation, which shall be paid within one month from the date of receipt of copy of the order failing which the OPs would be liable to pay the same alongwith penal interest @ 12% per annum w.e.f. the date of filing of the complaint i.e. 11.11.2008 till payment is actually made to the complainant.}

                   Certified copies of this order be sent to the parties free of charge.  The file be consigned.