Chandigarh

DF-I

CC/350/2015

Mr. Jaspal Singh Chahal - Complainant(s)

Versus

M/S Parsvnath Developers Limited - Opp.Party(s)

P.B.S. Goraya

01 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

============

Consumer Complaint  No.	:	CC/350/2015
Date  of  Institution	:	03/06/2015
Date   of   Decision	:	01/07/2016

 

 

 

 

 

1.     Mr.Jaspal Singh Chahal son of Udam Singh.

 

2.     Mrs.Narinder Kaur Chahal wife of Mr.Jaspal Singh Chahal.

 

Both residing at 46 Rivermead, East Molesey Surrey (United Kindgdom) KT89AZ.

 

Both presently residing at  House No.70, Sector 28-A, Chandigarh.

 

….Complainants

Vs.

 

1.     M/s Parsvnath Developers Ltd., Project Parsvnath Royal, behind Society number 105/111, Sector 20, Panchkula, through its Chairman.

 

2.     Chairman and Managing Director, M/s Parsvnath Developers Limited, 6^th floor, Arunachal Building 19-Bara Khamba Road, New Delhi 110001.

 

3.     Chandigarh Housing Board, Plot No.8, Jan Marg, Sector 9, Chandigarh through its Secretary.

 

…… Opposite Parties 

 

BEFORE:   DR.MANJIT SINGH    PRESIDENT

SH.S.K. SARDANA    MEMBER

 

 

For Complainant	:	Sh.P.B.S. Goraya, Advocate.
For OP No.1&2	:	Sh. Aftab Singh Khara, Adv. Proxy for Sh. Ashwani Talwar, Adv.
For OP No.3	:	Sh. Vishal Sodhi, Adv.

 

 

PER S.K. SARDANA, MEMBER

 

 

 

                The facts, in brief, are that  complainants allured with the rosy picture presented by the OPs regarding their project applied for two bedroom Unit in their project paid an amount of Rs.6,07,750/- towards earnest money.  The total price of the unit was Rs.1,21,55,000/-. The complainant opted for construction link payment plan in which payment was to be made depending upon the progress of construction at the site.  The complainants were allotted Unit No.302 on 3^rd floor in block No. D vide allotment letter dated 3.6.2008.  The complainants paid regular installment whenever demanded and paid a total amount of Rs.31,38,750/-. Thereafter a flat buyer agreement was executed between the parties vide Annexure C-8. According to the said agreement the possession of the flat was to be delivered within 36 months of the signing of the Development Agreement dated 24.7.2008 between the developer and the Chandigarh Housing Board. It is alleged that to the utter surprise of the complainants when they visited the site there was no construction activity at all. The complainants raised the issue with the OPs but the just gave mere assurances to them. The complainants were shocked when they received a letter dated 6.2.2015  from Opposite Party No.3 i.e. the Chandigarh Hosing Board alongwith a cheque of Rs.9,41,625/- on account of 30% share of refund intimating the complainants regarding cancellation of the unit in question. Opposite Party No.3 also vide letter dated 4.3.2015 paid interest                       @ 9% p.a. on the 30^% share amount to the tune of Rs.4,48,397/-. Similarly Opposite Parties No.1&2 vide letter Annexure C-11 refunded Rs.21,97,125/- being 70% of its share without paying any interest and also intimated regarding cancellation of the unit. It has further been averred since the possession was not offered to the complainant within the stipulated period he is entitled for compensation @Rs.107.60 per sq. mtr (Rs.10 per Sq. ft.) of the super area of the unit per month. It is alleged that Opposite Party No.3 arbitrarily deducted 20% TDS which is liable to be refunded to the complainant. Alleging that the aforesaid acts amounted to deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has filed the instant Complaint.

2.      Notice of the complaint was sent to Opposite  Parties, seeking their version of the case
3.      The Opposite Parties No.1 & 2 in their joint reply while admitting the basic facts of the case stated that they had already refunded 70% principal amount of their share along with interest. It has been pleaded that in view of order dated 5.3.2013 passed by the National Commission in such likes cases, Arbitration award dated 9.1.2015 and subsequent order dated 21.4.2015 of the Hon’ble Supreme Court, the Developers and the Chandigarh housing board are liable to pay compensation to the allottee in the ratio of 70:30%. Further amount of compensation under clause 9(c) of the Flat Buyer Agreement is to be calculated from expiry of 36 months from 5.2.2008 i.e. from 4.2.2011 till the date of refund of principal amount. It is further pleaded that out of the total amount the answering Opposite Parties are liable to pay 70% of the total amount of compensation payable. All other allegations have been denied being wrong.
4.      Opposite Party No.3 in its reply has stated that it had already refunded the 30% of its share with interest to the complainant.  It has been pleaded that as per Development Agreement dated 6.10.2006 and the Flat Buyer Agreement in case any delay is caused either directly or indirectly in completing the project or constructing the flats or handing over the possession of the flats to its buyer, then only Opposite Party No.1&2 developer would solely be liable to pay all damages and compensation and answering Opposite Party is not responsible for any delay or default in the same.  Further as per 9(c) the said agreement in case possession of built up flat is not offered to any of its buyer within a period of 36 months or extended period as stipulated in clause (b) then flat buyer shall be entitled to receive compensation from the Opposite Party No.1&2 developer @107.60 per sq. mtr (Rs.10/ Sq. ft) and not from the answering Opposite Party.  The  answering Opposite Party handed over the possession of the project land to OPs No.1&2 on 6.10.2016 but they failed to develop the entire project land and committed various defaults and breaches of the terms of the agreement for which

 

5.     Parties led evidence in support of their contentions.

 

6.     We have heard the learned counsel for the parties and perused the record carefully.

 

7.     The first question, that arises for consideration, is, as to whether, the complainants are entitled to compensation, for not handing over possession to them, as per the terms and conditions of the Flat Buyer Agreement dated 02.07.2008, Annex.C-8, referred to above, and for deficiency in service and indulgence into unfair trade practice, as also causing physical harassment and mental agony, by the Opposite Parties to them (complainants) or not?  Clause 9 (c) of the Agreement, referred to above, at page 41 of the file, which is relevant for answering the question, reads as under :

 

“9(c) In case of possession of the built up area is not offered to the Buyer within a period of 36 months or extended period as stipulated in sub-clause (a) above the Buyer shall be entitled to receive from Developer compensation @ Rs.107.60 per sq.mtr (Rs.10/- per sq.ft) of the super area of the unit per month and to no other compensation of any kind. In case the Buyer fails to clear his account and take possession of the unit within 30 days of offer, the Buyer shall be liable to pay to the Developer holding charges @ 107.60 per sq.mtr. (Rs.10/- per sq.ft) of the super area of the unit per month in addition to the liability to pay interest to the sellers and other consequences of default in payment.”

 

 

8.      The second question that arises for consideration is as to whether the complainants are entitled to the payment of interest on the refunded amount or not? Clause 9(d) of the Flat Buyer Agreement, which is relevant, to answer this question, reads as under:-

“9(d) If as a result of any rules or directions of the Government or if any competent authority delays, withholds, denies the grant of necessary approvals for the Project, or if due to any force majeure conditions, the Developer is unable to deliver the unit to the Buyer, the Developer and CHB shall be liable to refund to the Buyer the amounts received from the Buyer with interest at the SBI Term Deposit Rate as applicable on the date of refund.” 

 

 

9.     The third question that arises for consideration is as to from which date the compensation is payable.  There is, no dispute, about the factum that the applicants aforesaid applied for the allotment of a flat, and they were allotted the same. Clause 9(a) of the  Flat Buyer Agreement dated 02.07.2008, Annexure C-8,  referred to above, which is relevant, for answering the question, posed, at the outset of this paragraph, reads as under:-

“Construction of the residential units is likely to be completed within a period of thirty six (36) months of the signing of the Development Agreement i.e. 06.10.2006 between the Developer and CHB and/ or as may be extended in terms of the Development Agreement shall be subject to force majeure and circumstances beyond the control of the Developer, and any restrains, restrictions from any Courts/ authorities.  The delay in grant of environmental clearances beyond 12 months of the signing of the Development Agreement shall not be counted towards the said period of 36 months.”

 

10.      The plain reading of Clause 9(a) of the Flat Buyer Agreement,  extracted above, clearly goes to reveal that construction of the residential units, was to be completed, within a period of thirty six  months of  signing the Development Agreement dated 06.10.2006. The time could be extended, in terms of the Development Agreement, dated 06.10.2006, subject to force majeure, and the circumstances beyond the control of the Developer. The Opposite Parties No.1 & 2 have produced a copy of SLP No.17133-17134/2013 and other connected matters and urged that the arbitration proceedings initiated to resolve the inter-se dispute between the Opposite Parties and the Chandigarh Housing Board was decided by Award dated 09.01.2015 by Hon'ble Mr. Justice R.V. Raveendran (Retd.) of the Hon'ble Supreme Court, the Sole Arbitrator. The operative part of the said Award reads as under: -  

37. Similarly the term regarding delivery of the project land by Respondent to Claimant for development (vide Article 2.1, 2.2, 2.4 and 2.8) is also a fundamental term of the DA necessary for achieving the essential purpose of the contract. It is not subject to or conditional upon the performance of any reciprocal promise by the Claimant. Therefore changing the project land (by deleting some portion and adding some portion) by changing its boundary line and shape, after delivery of possession of the project land, amounts to making a unilateral change in regard to a fundamental terms of the DA. When the change made in the project land is agreed to by the Claimant, any delay in delivery of the altered project land results in a corresponding change in the commencement of the development period. As a result, the Development period had to be reckoned from 05.02.2008, the date of actual delivery of the altered project land. The Respondent’s refusal to agree and confirm that the development period of 36 months should be reckoned from 05.02.2008 instead of 06.10.2006 and requiring performance by insisting completion of development within 36 months from the agreement date would amount to a fundamental breach of the contract by the Respondent.  

The claimant and Opposite Party are directed to bear the liability towards residential unit buyer, for refund of advances (payment of sale price or part thereof), interest and compensation as awarded by any consumer forum or any court, in the ratio of 70:30 respectively. For this purpose, the parties may take note of the payments, if any, already made by them, and pay the balance so that the ratio of liability is maintained at 70:30.”

 

11.     On perusal of the aforesaid orders we find that stipulated date in the Agreement stand extended from 06.10.2006 to 05.02.2008. Hence, the Opposite Parties were required to deliver the possession to the Complainants by 05.02.2011 (after 36 months from 05.02.2008). Hence, we are of the view that the compensation was payable with effect from 05.02.2011, till the date of actual refund of the deposited amount. 

 

12.     However, as far as the deduction of TDS from the amount paid, by Opposite Party No.3 is concerned, it may be stated here, that the complainants are free to claim refund of the same from the Income Tax Department, if admissible under law, while filing their return, after submitting the TDS Certificate, in that regard. The TDS Certificate if already not supplied by Opposite Party No.3, it shall supply the same to the complainants, in due course. The PAN No., if already not supplied by the complainants, the same shall be supplied by them to Opposite Party No.3. Thus, Opposite Party No.3 is only liable to that extent.

 

13.     For the reasons, recorded above, the complaint is  partly  accepted  with costs in the following manner:-

1)   Opposite Parties No.1&2 are jointly and severally directed to pay to the complainants interest at the SBI Term Deposit rate, from the  respective dates of deposits, till date of refund of deposited money as per Clause  9(d) of the Flat Buyer Agreement dated 02.07.2008, Annexure C-8.

2)   Opposite Parties No.1&2 are jointly and severally directed to pay compensation @ Rs.107.60 per sq. mtr (Rs.10/- per sq. ft) of the super area of the unit, per month, from 05.02.2011 onwards to the complainants, as provided by Clause 9 (c) of the Flat Buyer Agreement dated 02.07.2008, Annexure C-8 and indicated hereinbefore.

3)   Opposite Parties No.1&2 are jointly and severally directed to pay cost of litigation to the tune of Rs.5000/- to the complainants.

4)   Opposite Party No.3 shall issue TDS Certificate to the complainants, if already not issued, on supply of copy of  the PAN Card by them(complainants), if already not supplied, to enable them(complainants) to seek refund from the Income Tax Department, if permissible, under law.

10.      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 Opposite Parties No.1&2 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/-.

 

11.      The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

01st July, 2016

                              

Sd/-

 (DR. MANJIT SINGH)

PRESIDENT

 

Sd/-

(S.K. SARDANA)

MEMBER

“Dutt”