Chandigarh

StateCommission

MA/647/2023

JYOTI SOOD AND ANR - Complainant(s)

Versus

M/S PARSAVNATH DEVELOPERS LTD AND ORS - Opp.Party(s)

SATPAL DHAMIJA

20 Nov 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

M.A. No.	:	647 of 2023 in EA No.125 of 2020
Date of Institution	:	28.08.2023
Date of Decision	:	20.11.2023

 

 

 

 

1. Jyoti Sood @ Jyotish Lata Sood, wife of Sh. Prem Pal Sood, resident of House No.3101, Sector 32-D, Chandigarh.
2. Prem Pal Sood son of Sh. Pyare Lal Sood, resident of House No.3101, Sector 32-D, Chandigarh.

Both through their Special Power of Attorney Holder namely Sh. Satish Kumar Saini, son of Sh. Vidhya Parkash Saini, resident of House No.3101, Sectot 32-D, Chandigarh.

 

…..Non-applicants/decree holders

Versus

1. Parsvnath Developers Ltd., S.C.O NO. 1, First Floor, Sector - 26, Madhya Marg, Chandigarh, through its Managing Director.
2. Sanjeev Kumar Jain, CEO & Managing Director of Parsvnath Developers Limited, Corporate Office: Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi - 110 032 & Regional Office: Parsvnath Royale, Behind Society No. 105, Sector 20, Panchkula, 134 117, Haryana. Email: mail@parsvnath.com & secretarial@parsvnath.com
3. Pradeep Kumar Jain, Director of Parsvnath Developers Limited, Corporate Office: Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi - 110 032 & Regional Office: Parsvnath Royale, Behind Society No. 105, Sector 20, Panchkula, 134 117, Haryana. Email: mail@parsvnath.com & secretarial@parsvnath.com
4. Dr. Rajeev Jain, Director of Parsvnath Developers Limited, Corporate Office: Parsvnath Tower, Near Shahdara Metro Station, Shahdara, Delhi - 110 032 & Regional Office: Parsvnath Royale, Behind Society No. 105, Sector 20, Panchkula, 134 117, Haryana. Email: mail@parsvnath.com & secretarial@parsvnath.com

…..Applicants/JDs No.1 to 4

5. Chandigarh Housing Board, 8, Jan marg, Sector 9, Chandigarh, through its Chairman.

....Respondent no.5/JD No.5

BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER.

 

PRESENT:-

Sh. Neeraj Sobti, Advocate for the decree holders. Sh. Satpal Dhamija, Advocate for judgment debtors No.1 to 4. Sh. Vishal Sodhi, Advocate for judgment debtor No.5 alongwith Mrs. Indu Gupta, Sr. Assistant, Chandigarh Housing Board, Chandigarh.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

Questions for determination in this application:-

The following questions fell for determination before this Commission in this application:-

1. As to for what period, the developer/JDs No.1 to 4  and also Chandigarh Housing Board/JD No.5 are liable to make payment of compensation to the decree holders, as per clause 9 (c) of the agreement dated 04.12.2008, Annexure C-6 ?
2. As to from which date and what rate of interest, the developer/JDs No.1 to 4 are liable to pay on the amount of Rs.1,56,134/-?

2.           This is third round of litigation between the parties. The hapless complainants/home buyers have already lost more than 9 years in the legal battle but neither they are in possession of the unit in question nor the entire amount paid by them towards the said unit has been refunded to them.

 

Factual scenario:-

3.           Opposite Party No.1, had advertised its project, in the name and style of Prideasia", Rajiv Gandhi Chandigarh. Technology Park, Chandigarh, envisaging the sale of residential flats, to be developed, and constructed by them, on the land of Opposite Party No.2. Allured by such advertisements, the complainants, with an intention to have a residential unit, applied for the allotment of the same (residential unit), consisting of 4 bedrooms, B Category, measuring 3700 square feet super area, vide application form dated 18.09.2007. An amount of Rs.12,85,000/-, as earnest money, was also paid by the complainants, towards the said unit. The complainants opted for construction linked plan. Though the complainants had applied for the unit, in Category B, yet the Opposite Parties, unilaterally allotted, unit No. B15-PH4, in Category A, in Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh, vide allotment letter bearing No.PDL/CHB/07/B13. Later on, on the request of the complainants, they were allotted unit No.B21-PH-3, vide letter dated 05.12.2007. Thereafter, the complainants made payments, and, as such, by 22.12.2007, the total amount of Rs.70,28,750/-, was paid to the Opposite Parties, towards the price of the said unit. Flat Buyer Agreement dated 04.12.2008, Annexure C-6, was executed amongst the parties i.e. Parsvnath Developers as 1^st Party, Chandigarh Housing Board as 2^nd Party, complainants as 3^rd Party. As per Clause 9(a) of the said Agreement the construction of the residential units and other related infrastructure, was likely to be completed, within a period of 36 months, from 06.10.2006, the date of signing the Development Agreement i.e. on or before 05.10.2009, yet, they failed to even lay the foundation. It is coming out from condition nos.(c) to (h) of the agreement that over and above the promises made by the developers regarding timely delivery of possession of the unit in question, CHB has given following assurances as under:-

(c) WHEREAS the Chandigarh Housing Board has assured and represented to the Developer that:

1. The Chandigarh Administration has appointed CHB as 'Nodal Agency' vide Chandigarh Administration (Finance Department) Order No. Endst. No. 2689-UTFI (4) - 2005/8321 dated 01-12-2005 for execution of a residential, commercial and other related infrastructure facilities as an integrated project (hereinafter referred to as "the Project") on the Project Land with private sector participation.
2. The Chandigarh Housing Board is the lawful owner of the Project and it has the capacity and is capable of executing a full registrable transfer of the Project Land either on freehold or on lease ho basis.
4.  

(e) AND WHEREAS the Developer has planned to put up a residential group housing complex comprising of residential units on the freehold area of the Project Land (hereinafter referred to as the "Complex/Residential Complex") and named it as "Parsvnath Prideasia" and has already submitted building plans of the Complex to the competent authorities for approval.

(f) AND WHEREAS the land for the housing scheme has been provided by CHB and the Developer shall be solely responsible for quality parameters, timely delivery of Residential Units, and all claims/liabilities and compensation towards defects/delay. In case of any exceptional circumstances leading to non clearance of environmental issues, the Developer shall be liable to the prospective buyers for refund of amount collected along with interest (equivalent to SBI term deposit rate applicable on the date of such refund) for the period starting from the acceptance of such "booking amount" till the date when such refund is made

(g) AND WHEREAS the Developer shall be solely and exclusively liable to the residential unit owners for acts & omissions attributable to the developer and/ or his Contractor and/or his operator.

(h) AND WHEREAS the CHB and Developer are entitled to book the sale of the Residential Units to prospective buyers, to receive consideration amount in the Escrow Account pending obtention of such approvals as per the terms of the Development Agreement and to enter into this Agreement which is also to be signed by CHB in confirmation and in capacity as a co-seller alongwith the Developer.

 

4.           Finally, on 24.06.2014, the Opposite Parties intimated the complainants that the project, in question, in which they were allotted flat, could not be started, due to litigation. To the utter surprise of the complainants, a letter dated 07.07.2014, was received from Opposite Party No.2, alongwith demand draft/pay order no.788934 dated 07.07.2014, in the sum of Rs.21,08,625/-, on account of refund of his 30% share of the principal amount, deposited by them (complainants), and that too without any interest. However, the balance amount of Rs.49,20,125/-, had not been refunded to the complainants. Thereafter, the complainants, made numerous visits to Opposite Party No.1, for refund of the balance amount of Rs.49,20,125/-, alongwith interest, but to no avail. They also requested Opposite Party No.2 to pay interest, on the amount of Rs.21,08,625/-, but to no avail, which compelled them to file consumer complaint bearing no.82 of 2014 before this Commission.

 

Fate of consumer complaint:-

5.           Consumer complaint bearing no.82 of 2014, was allowed vide order dated 12.09.2014 in the following manner:-

“……25. For the reasons, recorded above, the complaint is  partly  accepted  with costs of Rs.5000/-, in the following terms:-

1. Opposite Party No.1, is directed to refund the amount of Rs.49,20,125/-, (rupees forty nine lacs, twenty thousand, one hundred and twenty five only), to the complainants, as explained above, alongwith interest at the SBI Term Deposit rate,   from the  respective dates of deposits, till realization,   as per Clause  9(d) of the  the Flat Buyer Agreement dated 04.12.2008, Annexure C-6.
2. Opposite Party No.2, is directed to pay interest to the complainants, at the SBI Term Deposit rate, on the amount of   Rs.21,08,625/-, from the respective dates of deposits, till 07.07.2014 (the date when the said amount was refunded to the complainants), as per   Clause 9(d) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6.
3. Opposite Party No.1, shall also be liable to pay compensation @ Rs.107.60 per sq. mtr (Rs.10/- per sq.ft) of the super area of the unit, per month, from 05.10.2009,  the last date of completion of the project, till actual payment to the complainants is made, as provided by Clause 9 (c) of the Flat Buyer Agreement dated 04.12.2008, Annexure C-6, and indicated hereinbefore.
4. The aforesaid directions, shall be complied with, by the Opposite Parties,  within a period of 30 days, from the date of  receipt of  a certified copy of this  order, failing which they shall be liable  to pay penal interest @ 12% p.a., from the date of default,  on the aforesaid payable amounts, besides payment of costs of Rs.5,000/-…..”

Impugned order challenged by the Developer/Parsvnath/JD No.1 before the Hon’ble National Commission by filing first appeal no.1170 of 2014:

6.           The order dated 12.09.2014 was challenged by the judgment debtors by way of filing first appeal no.1170 of 2014 before the Hon’ble National Commission. It is significant to mention here that some similar matters had been pending adjudication before the Hon’ble Supreme Court in bunch of Special Leave Petition (C) No.17133-17134/2013 preferred by the Developer against the order dated 5.3.2013, passed by the Hon’ble National Commission in Revision Petition No.396/2011 and connected Revision Petitions, wherein, order dated 21.04.2015 was passed by the Hon’ble Supreme Court dismissing the said SLPs. Relevant part of the said order is reproduced hereunder:-

“……These special leave petitions and civil appeals are directed against the judgment(s) and order(s), passed by the National Consumer Disputes Redressal Commission, Delhi (for short, “the Commission”), in Appeal No.269 of 2012, dated 05.03.2013, and in the Review Petition No.62 of 2015, dated 08.04.2013, along with other connected matters.

By the impugned judgment(s) and order(s) the Commission had sustained the orders passed by the State Consumer Disputes Redressal Commission, whereby the Developer and Chandigarh Housing Board, jointly and severally, have been directed to refund the amount deposited by the buyer along with interest as per Tripartite Agreement (for short, “the Agreement”) between the parties, dated 25.08.2008.

At the time of the hearing of the special leave petitions and civil appeals, Shri Rakesh Dwivedi, learned senior counsel would fairly submit that the issue that requires to be considered by this Court at this stage, pertains to Clause 9(c) of the Agreement between the parties. According to the learned senior counsel, the Developer-petitioner need not have to pay the compensation for non-delivery of the flats to the buyers after the expiry of Thirty Six months/extended period as provided under Clause 9(a) of the Agreement. The learned senior counsel would further submit that, at best, the respondent(s) would be entitled only for refund of the amounts deposited by them with interest, as envisaged in Clause 9(d) of the Agreement.

We have carefully perused Clauses 9(c) and 9(d) of the Agreement between the parties. In our view, Clause 9(d) pertains to refund with interest if, for any reason, the Developer is not in a position to offer the flat to the buyers after the expiry of Thirty Six months/extended period. A reading of Clause 9(c) would show that the said clause also envisages a payment of compensation to the buyer at a particular rate. This clause would be applicable against the developers only if they are not in a position to offer flat to the buyer after the expiry of Thirty Six Months/extended period as stipulated under Clause 9(a) of the Agreement.

Therefore, in view of the above, we are of the considered opinion that the Commission has not committed any mistake.

Further, it would be pertinent to note that the Commission has observed that its order would be subject to the pending arbitration proceedings between the Developers and the Chandigarh Housing Board.

In this context, Shri Rakesh Dwivedi, learned senior counsel would state that in view of the award passed by the Arbitrator the period that is stipulated in the Agreement has been extended from 06.10.2006 to 05.02.2008. We are not inclined to enter into this controversy. If, for any reason, the respondent(s)/buyer(s) file any execution petition for execution of the judgment(s) and order(s) passed by the Commission, the Developer is at liberty to take such objections based on award passed by the Arbitrator. If such objections are raised, it is for the executing Court to consider the same and pass appropriate orders in accordance with law.

In view of the above observations, these special leave petitions and civil appeals are disposed of.

Ordered accordingly….”

The Developer/Parsvnath/JD No.1 withdrew the first appeal no.1170 of 2014:

7.           That thereafter during pendency of first appeal no.1170 of 2014 before the Hon’ble National Commission, learned counsel for the Appellant/Developer while placing reliance on order dated 21.4.2015, passed by the Hon’ble Supreme Court in Special Leave Petition (C) No.17133-17134/2013, stated that he did not wish to pursue the said appeal and the same may be disposed of in terms of the said decision of the Hon’ble Supreme Court. Resultantly, first appeal no.1170 of 2014 was dismissed by the Hon’ble National Commission, vide order dated 08.05.2015, as not pressed by the Parsvnath Developers Limited. Relevant part of the order dated 08.05.2015 is reproduced hereunder:-

“……Learned counsel appearing for the Appellant/Developer has placed before us a copy of the order, dated 21.4.2015, passed by the Hon’ble Supreme Court dismissing a bunch of Special Leave Petition (C) No.17133-17134/2013 preferred by the Developer against the order, dated 5.3.2013, passed by this Commission in Revision Petition No.396/2011 and connected Revision Petitions.

In view of the said order, learned counsel submits that the Appellant/Developer would not like to pursue these Appeals and the same may be disposed of in terms of the said decision of the Hon’ble Supreme Court.  Learned counsel, however, prays for clarification on certain findings of the Learned Arbitrator in the award made in Arbitration proceedings between the Chandigarh Housing Board and the Appellant.  We are of the view that having regard to the nature of the controversy subject matter of these Appeals, it would not be proper for this Commission to make any observation on the applicability of the said award, particularly in light of the view already expressed by the Hon’ble Supreme Court in the said order on this aspect of the matter.

Accordingly, as prayed, the Appeals are dismissed as not pressed.

We direct that the balance amount due to be paid by the Appellant to the Complainants under Clause 9(c) of the Flat Buyers’ Agreement shall be made within 6 weeks from the date of receipt of a copy of this order.

We clarify that if any other amount(s), as awarded by the State Commission, still remains to be paid by the Appellant to the Complainants, subject to reconciliation of the accounts between the parties, the same shall also be paid within the same period.

However, the statutory amount deposited by the Appellant in each of the Appeals shall stand transferred to the Consumer Welfare Fund.……”

Execution application filed by the complainants before this Commission:-

8.           Thereafter, the decree holders filed execution application bearing no.53 of 2015 before this Commission on 22.07.2015. However, in this execution application bearing no.53 of 2015, Parsvnath Developers Limited  took objections by filing reply and  took almost similar and new objections. The said execution application was allowed by this Commission vide order dated 14.10.2015  by observing in para no.18 and 19 as under:-

“……18.   Under the circumstances, this Execution Application is allowed. Judgment Debtor No.1 is directed to make payment of penalty amount in terms of Clause 9(c) of the Flat Buyer Agreement dated 04.12.2008, within a period of 5 weeks. The office shall prepare a calculation sheet within one week from today, towards amount due upto the date of passing of this order. The calculation sheet will be supplied to Sh.Aftab Singh Khara, Counsel  for Judgment Debtor No.1 and, thereafter, within one month, the due amount be paid to the Decree Holders/complainants, failing which, the amount will entail an interest @15% p.a. to be compounded quarterly till the time payment is made.

19.    In Execution No.74 to 77 of 2015, there is an additional dispute as to whether interest @9% p.a. or 12% p.a. is to be paid by the Judgment Debtors. This dispute is pending adjudication before the Hon’ble National Commission, when that matter is decided, the liberty shall remain with the applicant to file a fresh application to claim difference in the rate of interest, if that decision went against the Judgment Debtors.….”

Second round of litigation (order dated 14.10.2015 challenged by the Developer/Parsvnath/JD No.1 before the Hon’ble National Commission:-

9.           Now coming to the second round of litigation. The above said order dated 14.10.2015 passed by this Commission in execution application no.53 of 2015 was challenged before the Hon’ble National Commission  in appeal execution No.15 of 2015 (Annexure E-3), which was dismissed vide order dated 05.02.2020.

 

Order dated 05.02.2020 challenged by the Developer/Parsvnath/JD No.1 before the Hon’ble Supreme Court:-

10.           The order dated 05.02.2020 passed by the Hon’ble National Commission in Appeal Execution No.15 of 2015 was challenged by the developer and builder vide SLP No.6383-85 and 6381-82 of 2021 respectively. The Hon’ble Supreme Court partly allowed the said SLP vide order dated 13.04.2023 while observing in para nos.9 and 10 as under:-

“………9. Accordingly, in view of the above and for the reasons stated above, the appeals preferred by the Developer – Parsvnath Developers Limited are hereby partly allowed. The impugned common judgment and order dated 05.02.2020 passed by the National Commission in Appeal Execution No. 4/2016 and other connected Appeal Executions is hereby modified to the extent holding the appellant – developer liable to pay compensation to the respective allottees/buyers/original complainants to the extent of 70% and the liability to pay balance 30% of the compensation in terms of clause 9(c) of the Flat Buyer Agreement would be upon Chandigarh Housing Board.

10.     In view of the above order passed in the appeals preferred by the Developer, no further orders are required to be passed in both the appeals preferred by the Chandigarh Housing Board, i.e., Civil Appeal Nos. 6382/2021 & 6381/2021 except ordering disposal of the said appeals. Ordered accordingly.……”

11.           Thus, the Hon’ble Supreme Court has observed that the developer/Parsvnath is liable to pay compensation to the respective allottees/buyers/original complainants to the extent of 70% and the liability to pay balance 30% of the compensation in terms of clause 9(c) of the Flat Buyer Agreement would be upon Chandigarh Housing Board/JD No.5. It is pertinent to mention here that Review Petition bearing no.1079-1082 of 2023 titled as Chandigarh Housing Board Vs. Parsvnath Developers Limited and another,  was also filed by the Chandigarh Housing Board/JD No.5 before the Hon’ble Supreme Court which was dismissed vide order dated 16.08.2023.
12.           In the application no.474 of 2023, the execution application no.125 of 2020 was restored to its original number, vide order dated 03.08.2023. Thereafter,  this miscellaneous application bearing no.647 of 2023 was taken up by this Commission.
13.           Chandigarh Housing Board/JD No.5 also moved application bearing no.768 of 2023 in miscellaneous application bearing no.3647 of 2023 in EA No.125 of 2020.

 

Observations/final findings of this Commission:-

14.           First coming to the question as to for what period, the developer/JDs No.1 to 4 and also  Chandigarh Housing Board/JD No.5 are liable to make payment of compensation as per Clause 9(c) of the agreement dated 04.12.2008 to the decree holders, it may be stated here that though while placing reliance on  order dated 09.01.2015, the counsel for the developer/JDs No.1 to 4  has vehemently contended that since the Arbitrator vide its award on the said date (09.01.2015) has held that the development period of thirty six months is to be reckoned from 05.02.2008 and not from 06.10.2006, as such, the amount calculated by the decree holder should have been from 05.02.2011 (three years from 05.02.2008). Similar plea has been taken by the Chandigarh Housing Board/JD No.5 in its miscellaneous application bearing no.768 of 2023. We have considered this contention but are of the considered view that it does not merit acceptance for the reasons recorded hereinafter.
15.           As stated above, vide order dated 21.04.2015, the Hon’ble Supreme Court in bunch of Special Leave Petition (C) No.17133-17134/2013 gave liberty to the developer/JDs No.1 to 4   to take objections qua extension of date of development agreement from 06.10.2006 to 05.02.2008, in case decree holders/complainants file execution application before the executing court/ Commission so that executing court/Commission can consider and pass appropriate orders in accordance with law. Relevant para no.7 of the said order is reproduced hereunder:-

“……7. In this context, Shri Rakesh Dwivedi, learned senior counsel would state that in view of the award passed by the Arbitrator the period that is stipulated in the Agreement has been extended from 06.10.2006 to 05.02.2008. We are not inclined to enter into this controversy. If, for any reason, the respondent(s)/buyer(s) file any execution petition for execution of the judgment(s) and order(s) passed by the Commission, the Developer is at liberty to take such objections based on award passed by the Arbitrator. If such objections are raised, it is for the executing Court to consider the same and pass appropriate orders in accordance with law.

8. In view of the above observations, these special leave petitions and civil appeals are disposed of.

Ordered accordingly….

16.           Resultantly, the developer/JDs No.1 to 4  took objections qua extension of date of development agreement from 06.10.2006 to 05.02.2008 in the execution application no.53 of 2015 filed by the decree holders before this Commission, which was negated by this Commission vide order dated 14.10.2015. Relevant part of the said order is reproduced hereunder:-

“………12. By noting that objection, it was specifically held that “For a dispute between the Developer and the CHB, Complainants cannot be deprived of their legitimate dues which have become payable in terms of clause 9(c) of the tripartite agreement. The Developer and the CHB cannot be allowed to have the benefit of their own/mutual wrongs. The dispute arising between the Developer and the CHB already stands referred to the Sole Arbitrator.” It was further said that in terms of clause 9(c) of the Flat Buyer Agreement, the developer is liable to pay compensation @Rs.107.60 per Sq. Mt. (Rs.10 per sq. ft.) of the super area of the unit per month, in case possession of the built up area was not offered to the buyer within the stipulated time. By making reference to the aforesaid clause 9(c), it was said that let the compensation be paid by the developer. However, it was said that the order passed would be subject to final outcome of arbitration proceedings.

The above order gives a clear indication that the buyers should not suffer, if any, benefit is given to the developer in the arbitration award, it can get its due realized, as per law.

In those cases, matter went to the Hon’ble Supreme Court, when disposing of SLP Nos.17133-17134/2013, on 21.04.2015. The Hon’ble Supreme Court upheld order passed by this Commission and the Hon’ble National Commission. In paragraph No.4 of the judgment, it was specifically stated that Clause 9(c) of the Flat Buyer Agreement is applicable against the developer only. However, at the end, may be by noting an argument raised by the developer that arbitration award has been passed on 09.01.2015, it was said by the Hon’ble Supreme Court that as and when execution is filed by a consumer, the developer be at liberty to take any objection in terms of award passed by the Arbitrator.

The above finding would not mean that the buyer(s) can be put to a loss. In terms of order passed, as referred to above, buyers are entitled to get compensation in terms of Clause 9(c) of the Buyer Agreement. If any  benefit has been given to the Judgment Debtor No.1 in arbitration award passed, it can recover the same from  Judgment Debtor No.2, as per law.

It is stated that as per arbitration award, the date of handing over of possession of land for development to Judgment Debtor No.1 has been shifted from 06.10.2006 to 05.02.2008. It is argued that in view of above, let penalty for the said period (between 06.10.2006 to 05.02.2008) be paid by Judgment Debtor No.2.

We are not convinced with the argument raised. The matter has already become final in terms of order passed by the Hon’ble National Commission on 08.05.2015 in the case of Avtar Singh Hundal(supra), if any, benefit has accrued in favour of the Judgment Debtor No.1, it may claim it in terms of arbitration award from Judgment Debtor No.2, as per law, in some other legal proceedings.

Under the circumstances, this Execution Application is allowed. Judgment Debtor No.1 is directed to make payment of penalty amount in terms of Clause 9(c) of the Flat Buyer Agreement dated 04.12.2008, within a period of 5 weeks. The office shall prepare a calculation sheet within one week from today, towards amount due upto the date of passing of this order. The calculation sheet will be supplied to Sh.Aftab Singh Khara, Counsel  for Judgment Debtor No.1 and, thereafter, within one month, the due amount be paid to the Decree Holders/complainants, failing which, the amount will entail an interest @15% p.a. to be compounded quarterly till the time payment is made.…..”

17.           Feeling aggrieved against the order dated 14.10.2015, the developer/JDs No.1 to 4  filed Appeal Execution No.15 of 2015 before the Hon’ble National Commission which was dismissed by it vide order dated 05.02.2020. Relevant part of the order dated 05.02.2020 is reproduced hereunder:-

“…For the reasonsstated hereinabove,I find no merit in the appeals filed by the Developer, which are accordingly dismissed with no order as to costs……”

 

18.           Still feeling aggrieved of the order dated 05.02.2020 passed in AE No.15 of 2015 (Annexure E-3), the developer/JDs No.1 to 4  filed SLP No.6383-85 and 6381-82 of 2021 before the Hon’ble Supreme Court- titled as Parsvnath Developers Pvt. Ltd. Versus Gagandeep Brar and another which was partly allowed vide order dated 13.04.2023. Relevant part of the said order dated 13.04.2023 is reproduced hereunder:-

“……8. In view of the above, the impugned orders passed by the National Commission and that of the State Commission are required to be modified to the extent holding the appellant – developer liable to pay compensation under clause 9(c) of the Flat Buyer Agreement to the extent of 70% and 30% liability would be upon the Chandigarh Housing Board. The present appeals preferred by the appellant – developer are to be allowed to the aforesaid extent and the appeals preferred by the CHB are required to be disposed of in terms of the above.

Accordingly, in view of the above and for the reasons stated above, the appeals preferred by the Developer – Parsvnath Developers Limited are hereby partly allowed. The impugned common judgment and order dated 05.02.2020 passed by the National Commission in Appeal Execution No. 4/2016 and other connected Appeal Executions is hereby modified to the extent holding the appellant – developer liable to pay compensation to the respective allottees/buyers/original complainants to the extent of 70% and the liability to pay balance 30% of the compensation in terms of clause 9(c) of the Flat Buyer Agreement would be upon Chandigarh Housing Board.

In view of the above order passed in the appeals preferred by the Developer, no further orders are required to be passed in both the appeals preferred by the Chandigarh Housing Board, i.e., Civil Appeal Nos. 6382/2021 & 6381/2021 except ordering disposal of the said appeals. Ordered accordingly…”.

19.           Thus, from bare perusal of order dated 13.04.2023, it is clearly coming out that the orders passed by the National Commission and this Commission were modified only to the extent of liability of developer/JDs No.1 to 4  i.e. developer was made liable to pay compensation to the respective allottees/buyers/original complainants to the extent of 70% and the liability to pay balance 30% of the compensation in terms of clause 9(c) of the Flat Buyer Agreement was put on the Chandigarh Housing Board. It is significant to mention here that there is nothing in the order dated 13.04.2023 which says that objection qua extension of date of development agreement from 06.10.2006 to 05.02.2008 which was negated by  this Commission in the execution application no.53 of 2015 vide order dated 14.10.2015 and upheld by the Hon’ble National Commission vide order dated 05.02.2020 passed in Appeal Execution No.15 of 2015; has been modified by the Hon’ble Supreme Court  in its order dated 13.04.2023, meaning thereby that the order dated 14.10.2015  to the extent that the period of three years for possession has been to be taken from the date of development agreement i.e. 06.10.2006 has attained finality. Under these circumstances, it is held that the developer/JDs No.1 to 4 and also Chandigarh Housing Board/JD No.5  are liable to make payment of compensation as per Clause 9© of the agreement dated 04.12.2008 to the decree holders starting from 05.10.2009 and not from 05.02.2011. In these circumstances, the respondents/ complainants are held entitled to compensation starting from 05.10.2009 and not from 05.02.2011.
20.           Now coming to the next question, as to from which date and what rate of interest, the developer/JDs No.1 to 4 are liable to pay on the remaining due amount including Rs.1,56,134/-? It may be stated here though it has also been vehemently contended by the developer/JDs No.1 to 4  that because the Hon’ble  National Commission vide order dated 08.05.2015 passed in first appeal no.1170 of 2014  had awarded 6 weeks time to make the payment, which expired on 22.06.2015 only as such they are liable to make payment of interest only for that duration only, yet, on the other hand, it is also an admitted fact that the developer/JDs No.1 to 4   have failed to make payment of the entire decreetal amount within the said period of 6 weeks. The developer/JDs No.1 to 4  have failed to place on record any order of any appellate court, granting extension period of making the entire decreetal payment, meaning thereby that the order dated 12.09.2014 passed by this Commission has attained finality, with some modification in the pattern of payment, in the manner stated above, especially, when first appeal no.1170 of 2014 stood dismissed by the Hon’ble National Commission, vide order dated 08.05.2015, as not pressed by the developer/JDs No.1 to 4. Even otherwise, perusal of contents of the order dated 08.05.2015 also reveal that the  developer/JDs No.1 to 4 had been directed to make the payment of any other amount(s), as awarded by this Commission, within the said period of 6 weeks, which admittedly has not been paid by them even till date. Relevant part of the said order is reproduced hereunder:-

“……We direct that the balance amount due to be paid by the Appellant to the Complainants under Clause 9(c) of the Flat Buyers’ Agreement shall be made within 6 weeks from the date of receipt of a copy of this order.

We clarify that if any other amount(s), as awarded by the State Commission, still remains to be paid by the Appellant to the Complainants, subject to reconciliation of the accounts between the parties, the same shall also be paid within the same period……..”

 

Under these circumstances, contention raised by counsel for the developer/JDs No.1 to 4in this regard also stands rejected.

 

Fate of miscellaneous application no.647 of 2023 filed by developer/JDs No.1 to 4 in EA No.125 of 2020:-   

21.           Resultantly, this application stands dismissed with cost of Rs.5000/- to be paid by the developer/JDs No.1 to 4 to the decree holders in equal shares by way of demand draft or direct transfer in their account on or before the next date of hearing in the main execution application.  At the same time, the developer/JDs No.1 to 4  are directed to make the remaining entire amount  of compensation alongwith interest to the respondents/decree holders forthwith.

 

Fate of miscellaneous application bearing no.768 of 2023 filed by Chandigarh Housing Board/JD No.5 in M.A. No.647 of 2023:

22.           Consequently, this application also stands dismissed with cost of Rs.5000/- to be paid by the Chandigarh Housing Board/JD No.5 to the decree holders in equal shares by way of demand draft or direct transfer in their account on or before the next date of hearing in the main execution application.  At the same time, the Chandigarh Housing Board/JD No.5  is also directed to make the remaining entire amount  of compensation alongwith interest to the respondents/decree holders forthwith.
23.           With these directions, both these his applications stand disposed off.
24.           Now to come up in the main execution application bearing no.125 of 2020 on 19.12.2023.
25.           Certified Copies of this order be sent to the parties, free of charge, forthwith.

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

 

Rg.