Chandigarh

StateCommission

CC/89/2015

Surinder Kaur Boparai - Complainant(s)

Versus

M/s Parsvnath Developers Ltd. - Opp.Party(s)

PBS Goraya, Adv.

01 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	89 of 2015
Date of Institution	:	12.05.2015
Date of Decision	:	01.07.2015

 

1. Surinder Kaur Boparai, widow of Avtar Singh Boparai.
2. Raminder Singh Boparai son of Late Avtar Singh Boparai.
3. Neetu Boparai, daughter of Late Avtar Singh Boparai.

Legal heirs of Avtar Singh Boparai son of Karam Singh.

All resident of 2A Turner Road Langley Slough, Berks, Bershire, PIN-SL37AN, England, Local Address H.No.5785, Modern Housing Complex, Manimajra, Chandigarh.

……Complainants

V e r s u s

1. M/s Parsvnath Developers Limited,  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

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:                 JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

               

Argued by:        Sh. P.B.S. Goraya, Advocate for the     complainants.

                         Sh. Aftab Singh Khara, Advocate for Opposite Parties  No.1  and 2

                         Sh. Vishal Sodhi, Advocate for Opposite Party                                 No.3.

 

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that Opposite Parties No.1 and 2, had widely advertised their project, in the name and style of “Parsvnath Prideasia”,  Rajiv  Gandhi  Chandigarh Technology   Park, Chandigarh, envisaging the sale of residential flats, to be developed, and constructed by it, on the  land  of Opposite Party No.3.  Allured by such advertisements, Avtar Singh Boparai (now deceased), and complainants No.1 and 2, applied for the allotment of a residential unit, consisting of 2 bedrooms, D Category, measuring 1700 square feet super area. An amount of Rs.6,07,750/- as earnest money, being 5% of the total consideration of the said unit, was also paid by the applicants. The applicants opted for the construction linked plan. The total sale consideration of the said unit was to the tune of Rs.1,21,55,000/-. It was stated that Avtar Singh Boparai (now deceased), and complainants No.1 and 2 (hereinafter to be referred as the allottees), were allotted Flat No.202, Second Floor, Block No.D1, in Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh, vide allotment letter bearing No.PDL/CHB/08/D17 dated 19.05.2008 Annexure C-4. It was further stated that, thereafter, the allottees made payments, and, as such, by 03.07.2008, the total amount of Rs.31,38,750/-, was paid to the Opposite Parties, towards part price of the said unit.

2.       It was further stated that the Flat Buyer Agreement dated 04.06.2008, Annexure C-7, was executed amongst the allottees and the Opposite Parties, at Chandigarh. As per Clause 9(a) of the said Agreement (at page 41 of the file), 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.  It was further stated that the allottees visited the site, where the said units were to be constructed, and came to know   that   the Opposite Parties failed to construct the same (units).
3.       It was further stated that the allottees visited the Opposite Parties, a number of times, and requested them to refund the amount, paid by them, towards part price of the unit, in question, alongwith interest, as there was no progress of the project, and the same was delayed for unlimited period.
4.       It was further stated that it was found that the entire project of the Opposite Parties was nothing but a farce. It was further stated that, as such, the amount of Rs.9,41,625/- towards 30% of its share was refunded by Opposite Party No.3, vide cheque No.886328 dated 06.02.2015. It was further stated that Opposite Party No.3 also paid interest @9% P.A., on the amount of Rs.9,41,625/-, to the tune of Rs.4,51,242/- vide DD No.886888 dated 03.03.2015, for the period the same(Rs.9,41,625/-) was retained by it. It was further stated that, on the other hand, Opposite Parties No.1 and 2, also sent  cheque No.034054 dated 10.02.2015, in the sum of Rs.21,97,125/-, towards 70% of their share, in the name of Avtar Singh Boparai, Raminder Singh Boprari (complainant No.2) and Surinder Kaur Boparai (complainant No.1) but  since in the meanwhile Avtar Singh Boparai had expired, and his name was also mentioned on the cheque aforesaid, as such, the same was returned by the complainants, to them (Opposite Parties No.1 and 2) for deleting his name, yet, they did not issue the new cheque, and slept over the matter. It was further stated that, not only this, Opposite Party No.3 had illegally deducted 20% TDS, out of the amount paid by it. It was further stated that even compensation, as per the Flat Buyer Agreement dated 04.06.2008, Annexure C-7, was not paid by the Opposite Parties. On the other hand, the amount of Rs.21,97,125/-, had not been refunded to the complainants, by Opposite Parties No.1 and 2, by issuing a fresh cheque. It was further stated that, thereafter, the complainants made numerous visits to Opposite Parties No.1 and 2, for refund of the amount of Rs.21,97,125/-, alongwith interest,  but to no avail.
5.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming refund of the amount of Rs.21,97,125/-, alongwith interest @9% P.A.; 20% TDS amount illegally deducted by Opposite Party No.3; compensation/penalty @Rs.107.60 per square meter of the super area, as per Clause 9(c) of the Agreement; compensation to the tune of Rs.2 lacs, for deficiency in rendering service, or any other reliefs as deemed fit.
6.       Opposite Parties No.1 and 2, in their short written statement, pleaded that the complaint was barred by time. It was further pleaded that the consumer complaint was not maintainable, and only a suit for specific performance, in the Civil Court, for enforcement of the Agreement, could be instituted. It was stated that  the Hon’ble Supreme Court, vide its order dated 10.05.2013, passed in Special Leave Petition No.17133-134 of 2013, in the case titled as Parsvnath Developers Ltd. & another Vs. Harsohin Kaur & another stayed the operation of the judgment, in so far as the payment of compensation under Clause 9(c) of the Flat Buyers Agreement was concerned. It was further stated that even the instant complaint under the Act, was barred, on account of the reason that  remedy for the settlement of dispute, by way of arbitration, had  already been availed of, by the Opposite Parties. It was further stated that the award dated 09.01.2015 had already been made by the Arbitrator. It was admitted that the Flat Buyer Agreement dated 04.06.2008, Annexure C-7, was executed amongst Avtar Singh Boparai, complainant No.1 and 2, and the Opposite Parties. Allotment of the unit, in question, in favour of the allottees, in the said project was also admitted. The price of the flat, as stated in the complaint, was also admitted. It was also admitted that the allottees deposited a sum of Rs.31,38,750/-, towards part price of the unit, in question. It was further stated that, as per award dated 09.01.2015, made by the Arbitrator, Opposite Parties No.1 and 2, had sent cheque dated 10.02.2015 in the sum of Rs.21,97,125/- being 70% of their share of the principal amount, but the complainants returned the same, vide application dated 26.02.2015. It was denied that Opposite Parties No.1 and 2, were deficient, in rendering service, and indulged into unfair trade practice. The remaining averments, were denied, being wrong.    
7.       Opposite Party No.3, in its written version, pleaded that the complaint was barred by time. It was admitted that the unit, in question, was allotted in favour of the allottees in Parsvnath Prideasia, vide the allotment letter aforesaid. It was also admitted that the Flat Buyer Agreement dated 04.06.2008, Annexure C-7, was executed, amongst  Avtar Singh Boparai (now deceased) complainants No.1 and 2 and the Opposite Parties.  It was also admitted that the allottees   deposited Rs.31,38,750/-, as per the  payment plan. It was stated that, as per Clause 9(e) of the Flat Buyer Agreement dated 04.06.2008, Annexure C-7,  Opposite Party No.3,  Chandigarh Housing Board, was to only provide the land for the project and the Developers (Opposite Parties No.1 and 2) were to undertake the development of the said project, and, as such they (Developers), were solely responsible for all quality parameters, timely delivery of residential units, all claims/liabilities and compensation towards defects/ delay etc. It was further stated that since as admitted by the complainants, in their complaint, Opposite Party No.3, had already refunded the amount of Rs.9,41,625/- being 30% of its share of the principal amount, vide DD No.886328 dated 06.02.2015, as also interest @9% P.A., to the tune of Rs.4,51,242/- vide DD No.886888 dated 03.03.2015, from the respective date(s) of deposits till the date of refund, neither it was liable to pay any further interest thereon, nor compensation, for mental agony and physical harassment. It was further stated that neither there was any deficiency, in rendering service, nor indulgence into unfair trade practice, on the part of Opposite Party No.3. A prayer was made for the dismissal of complaint qua Opposite Party No.3.      
8.       The complainants, in support of their case, led evidence, by way of joint affidavit alongwith which, a number of documents were attached. 
9.       Opposite Parties No.1 and 2, filed the short affidavit of Mr. R.C. Gupta, their General Manager (CRM), by way of evidence, alongwith which, a number of documents were attached.
10.       Opposite Party No.3, in support of its case, filed the affidavit of Mr.Ashok Jasrotia, its Chief Account Officer, by way of evidence.
11.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.         
12.       The first question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not. It may be stated here, that, no doubt, the Flat Buyer Agreement, in respect of the said unit, was executed between the allottees and the Opposite Parties, on 04.06.2008, yet, neither the physical possession thereof, by the promised date i.e. 06.10.2009, was delivered to the allottees, as per the terms and conditions of the Agreement, referred to above, nor the entire amount deposited by them, was refunded to them alongwith interest nor compensation was paid by Opposite Parties No.1 and 2, before filing the complaint. There was, thus, a continuing cause of action, in favour of the complainants, to file the complaint.  In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement, made in the advertisements of the petitioner, knowing fully well that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon'ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint is not at all barred by time. The submission of the Counsel for Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected
13.  
14. s rejected.stated here, that teh       The next question, that falls for consideration, is, as to whether,  the  instant complaint under the Act,  was barred, on account of the reason, that the  remedy for settlement of dispute, by way of arbitration, has  already been availed of, by the Opposite Parties, in accordance with Clause 18 of the Escrow Agreement dated 01.06.2007 executed between them. It may be stated here, that the same does not merit acceptance. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere fact that  the remedy of arbitration, which was provided, Clause 18 of the Escrow Agreement dated 01.06.2007, has already been availed of by the Opposite Parties, that  would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). In this view of the matter, the submission of the Counsel for the Opposite Parties, being devoid of merit, must fail, and  the same stands rejected.

14.       The next question, that arises for consideration, is, as to within which period, the construction of the residential units, was likely to be completed.  There is, no dispute, about the factum that the applicants aforesaid applied for the allotment of a flat, and   they   were   allotted the same, in the manner explained above.   They deposited the amount of Rs.31,38,750/-, towards part price of the flat, according to the payment plan, as admitted by the Opposite Parties.  Clause 9(a) of the  Flat Buyer Agreement dated 04.06.2008, Annexure C-7,  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.”

15.       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. No document was produced by Opposite Parties No.1 and 2, that any restriction was imposed by any Court or Authority, upon them, or the project, in question, as a result whereof, they could not raise construction of the residential units, in time.  Opposite Parties No.1 and 2, fleeced the allottees of their huge amount, by making misleading statement that the construction of residential units, will be completed within 36 months from 06.10.2006. Even, long after the expiry of the stipulated period, not even a brick was laid, at the site, what to speak of raising construction. Opposite Parties No.1 and 2, thus, indulged into unfair trade practice. It is, therefore, held that construction of   the residential units was to be completed within 36 months from 06.10.2006 i.e. by 06.10.2009.  
16.       The next question, that arises for consideration, is, as to whether, the complainants are entitled to the refund of amount, with interest 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.” 

17.       The allottees deposited the amount towards part payment of the price of   flat, in the hope of getting   its possession, within a period of 36 months from 06.10.2006, but they found that there was no development, at the site, and  even  a single brick, had not  been laid, at the spot, what to speak of construction of flats, and delivery of possession thereof, to the buyers.   In these circumstances, they could not wait for an indefinite period and the only option left with them, in such circumstances, was to ask for the refund of amount. Complainants No.1 and 2 approached the Opposite Parties, and requested for refund of the deposited amount.  The plain reading of Clause 9(d) extracted above, reveals that if the Developer for, whatever the reasons may be, fails to deliver the   possession of residential unit to the buyers, the Developer and the Chandigarh Housing Board, shall be liable to refund the amounts, received from the buyers, with interest, at the SBI Term Deposit Rate, as applicable, on the date of refund.   Opposite Parties No. 1&2 were, thus, deficient, in rendering service, by neither delivering possession of the flat, within the stipulated time, nor refunding the amount immediately, after the stipulated date, with interest, as provided under Clause 9(d) of the Agreement, referred to above.  
18.       Since Opposite Party No.3 has already refunded the amount of Rs.9,41,625/- being 30% of its share of the principal amount, vide demand draft No.886328 dated 06.02.2015, as also paid an amount of Rs.4,51,242/-, being interest @9% P.A., vide demand draft No.886888 dated 03.03.2015, from the respective date(s) of deposits till the date of refund, it is not liable to pay any further amount. At the same time, the cheque dated 10.02.2015, in the sum of Rs.21,97,125/- being 70% of their share of the principal amount, sent to the complainants, vide letter dated 14.02.2015, by Opposite Parties No.1 and 2, was returned, vide letter dated 26.02.2015, on account of the reason that one of the bearers thereof (Avtar Singh Boparai), had already expired. Alongwith the said letter, the complainants had also sent the requisite documents, for issuance of a fresh cheque, in their favour, yet, despite receiving the same, Opposite Parties No.1 and 2, did not take any action and slept over the matter. Till date, the amount of Rs.21,97,125/-  alongwith interest, has not been paid by Opposite Parties No.1 and 2, to the complainants, by issuing a fresh cheque, in their name. Thus, in our considered opinion, Opposite Parties No.1 and 2, are held liable to refund the amount of Rs.21,97,125/- to the complainants, with   interest at the SBI term deposit rate, as per Clause 9(d) of the Agreement, referred to above. By not refunding the amount aforesaid with interest, by issuing a fresh cheque, in the name of the complainants, after receiving the letter dated 26.02.2015, alongwith requisite documents, Opposite Parties No.1 and 2 were deficient, in rendering service.
19.       The next 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 04.06.2008, Annexure C-7,  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. ”

20.       Possession of the flat was not offered, to the buyers, within a period of 36 months from 06.10.2006. As stated above, even till date, not even a single brick, has been laid, at the spot.  In these circumstances, as per Clause 9 (c) of the aforesaid Agreement, the complainants became entitled to compensation @107.60 per sq.mtr (Rs.10/- per sq.ft.) of the super area of the unit, per month only from Opposite Parties No.1&2 w.e.f. 6.10.2009. 
21. 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.
22.       No other point, was urged, by the Counsel for the parties.
23.       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 refund Rs.21,97,125/-  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 Flat Buyer Agreement dated 04.06.2008, Annexure C-7,  

 

1. 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 06.10.2009,  the last date of completion of the project, onwards to the complainants, as provided by Clause 9 (c) of the Flat Buyer Agreement dated 04.06.2008, Annexure C-7,  and indicated hereinbefore

 

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

 

1. 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.

 

1. The aforesaid directions, shall be complied with, by the Opposite Parties,   within a period of 3 months, 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.5000/-.

       

24.       Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion

Pronounced.

July 1, 2015                                                   

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 [DEV RAJ]

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

MEMBER

Rg.