DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 222 of 2010 Date of Inst: 15.04.2010 Date of Decision:15.10.2010 1. Chetan Mittal son of Shri Rajinder Kumar Mittal r/o House No.235, Sector 21-A, Chandigarh. 2. Monica Mittal son of Shri Chetan Mittal r/o House No.235, Sector 21-A, Chandigarh. ---Complainants V E R S U S 1] M/s Parsvanath Developers Limited, Regd. & Corporate Office, 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi through its Managing Director. 2] The Manager, Parsvanath Developers Limited, SCO-I, Ist Floor, Madhya Marg, Sector 26, Chandigarh. 3] Chandigarh Housing Board, Sector 9, Chandigarh through its Chairman. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.Vishal Garg, Adv. Proxy for Sh.Arun K.Kundal, Advocate for complainant Sh.Ashwani Talwar, Adv. for OPs No.1 and 2. Sh.K.K.Gupta, Advocate for OP-3 --- PER LAKSHMAN SHARMA, PRESIDENT By this order, we are disposing of the following three consumer complaints including the present one as common questions of law and fact are involved in both these cases:- Sr No | C.C. No. | Name of complainants | Name of OPs. | 1. | 222/2010 | Chetan Mittal & another | Parasvnath Developers Ltd. and Others | 2. | 223/2010 | Mukesh Mittal & another | -do- | 3. | 224/2010 | Daljit Singh Brar & anr. | -do- |
2. For the purpose of disposal of these complaints, the facts are gathered from C.C.No.222/2010-Chetan Mittal & Another Versus Parasvnath Developers Ltd. and Others. 3. Sh.Chetan Mittal and Smt.Monica Mittal have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying for the following reliefs:- i) To refund a sum of Rs.5,29,100/- along with interest @ 24% from the date of its receipt till realization. ii) Pay a sum of Rs.5 lacs as compensation for mental agony and harassment. iii) Pay a sum of Rs.5 lacs for depriving the complainants of the use and enjoyment of their money. iv) Pay a sum of Rs.25,000/- as costs of litigation. 4. In brief, the admitted facts of the case are as under:- The complainants applied for residential flat measuring 740 sq. ft. by depositing Rs.2,64,550/- vide cheque No.201623 dated 25.12.2007 along with the application form on 29.12.2007. Similarly, the complainants deposited another sum of Rs.2,64,550/- vide cheque No.201632 dated 29.01.2008 for a sum of Rs.2,64,550/-. The total basic price of the flat in question was Rs.52,91 lacs. The complainants were allotted Flat No.302, 3rd Floor, Block No.E-4 in the project of OP No.1 & 2 i.e. Parsvnath Prideasia at Rajiv Gandhi Chandigarh Technology Park, Chandigarh. The balance amount was to be paid as per construction linked payment plan. The remaining payment was to be made by the complainants to OPs 1 and 2 as per the construction linked plan. The complainants deposited in all a sum of Rs.5,29,100/- with the OPs vide receipts (Annexure C-2 and C-3). As per the agreement dated 06.10.2006 executed between OPs No.1 & 3, the construction of the flats was to be completed by OPs No.1 & 2 within 36 months from 6.10.2006. It has been pleaded that OPs No.1 & 2 failed to make any development at the site. So dissatisfied with the act & conduct of OPs, the complainant requested for refund of the deposited amount of Rs.5,29,100/- along with interest. Despite repeated requests of the complainants, the aforesaid amount has not been refunded by OPs. Ultimately, the complainants served a legal notice dated 22.02.2010 (Annexure C-5) but to no avail. According to the complainants, non-refund of Rs.5,29,100/- along with interest @ 24% p.a. amounts to deficiency in service and unfair trade practice. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. In the other complaints also, the facts are similar except that the number of the flats allotted is different and the dates of deposit are also different. 5. On the other hand, the case of OPs No.1 and 2 is that the Chandigarh Administration was desirous of developing residential, commercial and other related infrastructure facilities as an integrated project at Rajiv Gandhi Chandigarh Technological Park in Chandigarh. Land measuring approximately 123.79 acres with private sector participation was earmarked for this purpose. It invited bids/proposals from private parties for this activity. OP-1 had submitted its proposal with the Chandigarh Administration which was accepted vide their letter of acceptance (No.HB/EE-II/2006/2437) dated 09.06.2006. Thereafter an agreement was signed between OP-1 and OP-2 which is known as the “Developers Agreement”. The relevant terms and conditions of the said agreement are as under:- “2.2.1 The "Development Period" shall be a total period of 36 Months (including 24 Months of construction period) starting from the Agreement Date. The Development Period includes (a) the period of 12 Months starting from Agreement Date within which the developer shall obtain all requisite Approvals including environmental clearance/s for the Project and (b) construction period of 24 Months starting from the said 12 Months period set out at (a) above within which the Project are to be completed by the Developer. 2.2.2 Provided further that in the event of any delay attributable to the CHB in handing over possession of the CHB's Asset to the Developer, the said period of 36 Months shall commence from the date the CHB's Asset are actually handed over to the Developer. For the avoidance of doubts, the Developer shall be obliged to procure from CHB a letter recording the date on which such hand over of assets would have been, effectuated by CHB, which date shall be the "start" date for calculation of the said period) of 36 Months." The case of the OPs No.1 and 2 is that soon after taking possession of the land measuring 123.79 acres, OP-1 started erection of fencing around the said land. However, the Government of Haryana claimed ownership over a portion of the said land. OPs No.1 and 2 were thus stopped from carrying out its activities. Despite the fact that OPs No.1 and 2 had taken up the matter with Chandigarh Administration a number of times and a number of meetings were held between OPs No.1 and 2, OP No.3 and the State of Haryana; the matter regarding the ownership of the land allotted to OPs No.1 and 2 still remains unsettled. In these circumstances, according to OPs No.1 and 2, the construction work could obviously not be started, and the possession of the flat could not be delivered to the complainant within the stipulated period of 36 months. The said period of 36 months, according to OPs No.1 and 2, shall commence from the date of delivery of the possession of the total land to it by OP-3 as per agreement clause 2.2.2. In these circumstances, the delay in construction of the flats and delivery of the possession is not because of the fault of OPs No.1 and 2. It has further been pleaded that the complainants requested for refund of the amount which is not permitted as per the agreement (Annexure R-3). According to OPs No.1 and 2, the complainants can apply for cancellation of the allotment in terms of Clause 5(a) of the agreement and they are ready to refund the amount after deducting 5% of the basic price of the flat i.e. Rs.52.91 lacs as per the clause 5(a) of the Flat Buyers Agreement. In these circumstances, according to OPs No.1 and 2, there is no deficiency in service or unfair trade practice on its part and the complaint qua it deserves dismissal. 6. In the reply filed by OP No.3-C.H.B., it has been pleaded that Flat Buyer Agreement was signed between all the three parties i.e. complainant, CHB and Developer. As per clause 9(a) of the said agreement, OPs No.1 & 2 were required to complete the construction within 36 months of the signing of the agreement and under clause 9(e) of the said agreement, it is the Developer who was responsible for non-completion of the construction within the stipulated period. According to OP-3, as per Clause 5(a) of the Flat Buyer Agreement, in the event of the allottee’s seeking the refund of the deposited amount, the same was to be refunded to the allottee after deducting 5% of the basic price of the flat from the deposited amount. In these circumstances, according to OP-3, there is no deficiency in service on its part and the complaint deserves to be dismissed. 7. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc and the written arguments filed by the parties. 8. Admittedly, the complainant deposited a sum of Rs.5,29,100/- with OPs No.1 and 2 towards the partial cost of the said flat and this fact has also been admitted by the OPs No.1 & 2 in their written statement. It is also admitted case of the parties that the OPs have failed to construct the flats so far. It has also been admitted that no amount was refunded to the complainants despite issuance of the legal notice. 9. In the present case, the only question which needs determination is that whether OPs are liable to refund the total deposited amount to the complainants without making deduction @ 5% of the basic price as per clause 5(a) of the Flat Buyer Agreement or not. 10. It has been argued by the learned counsel for the complainant that the complainants are entitled to the deposited amount as OPs have failed to construct the flat so far. Admittedly, the complainants had deposited a total sum of Rs.5,29,100/- with OPs but the construction has not commenced so far. So the complainants requested for refund of the total amount as they could not wait for an unlimited period for delivery of possession of the flat. On the other hand, it has been pleaded by the OPs No.1 and 2 that they are liable to refund the deposited amounts to the complainants after deduction @ 5% of the basic price as per clause 5(a) of the Flat Buyer Agreement. 11. Clause 5 (a) of the Flat Buyers Agreement reads as under:- “5(a) Timely payment of the installments/amounts due shall be of the essence of this agreement. If payment is not made within the period stipulated and/or the Buyer commits breach of any of the terms and conditions of this agreement, then this agreement shall be liable to be cancelled. In the eventuality or cancellation, earnest money being 5% of the basic price would be forfeited and the balance, if any, would be refundable without interest. However, the sellers may allow the revival of the allotment of the unit (subject to its availability) in the name of the buyer on payment of revival charges amounting to 10% of earnest money.” 12. To our mind, clause 5(a) of the Flat Buyers Agreement relied upon by OPs No.1 and 2 is not applicable in the present set of circumstances. As per this clause, timely payment is the essence of the agreement and if the payment is not made within the period stipulated and buyer commits breach of any of the terms and conditions of this agreement, the developer has a right to cancel the allotment and in that eventuality the developer has the right to forfeit 5% of the basic price. 13. In the present case, the complainants have not made any breach of the terms and conditions of the agreement. There is no default in payment of any installment. So, Clause 5(a) of the Flat Buyers Agreement is not applicable to the facts and circumstances of the present case. Therefore, OPs have no right to deduct 5% of the basic price in the present set of circumstances. Even the allotment has not been cancelled for any alleged breach of contract from the side of the complainants. In these circumstances, OPs are not liable to deduct 5% of the basic price as per clause 5(a) of the Flat Buyer Agreement. 14. To our mind, in the circumstances of the case in hand, the refund should have been made as per clause 9(d) of the Flat Buyers Agreement which 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.” In the present case, OPs have failed to deliver the possession within the period prescribed in the Flat Buyers Agreement due to some dispute of ownership over a portion of land. So both M/s Parasvnath Developers Ltd. and Chandigarh Housing Board are liable to refund the amount to the complainants with interest at the current SBI term deposit rate as per the agreement. Failure on the part of OPs to refund the deposited amount along with interest amounts to deficiency in service. 15. Faced with this situation, it was argued by the learned counsel for the OPs that as the project has still not been abandoned, so, the developer has not become unable to deliver the unit to the buyer. Therefore, clause 9(d) is not applicable in the present case. To our mind, the argument advanced by the learned counsel for the OPs has no force. As per the flat buyer agreement, the OPs were required to deliver the possession within 36 months from 06.10.2006. Admittedly, the OPs have failed to do so . The complainants cannot be forced to wait for an indefinite period of time for the possession of the flat. So even if the project is still continuing, the failure to deliver the possession within reasonable time amounts to inability in delivery of possession. 16. It was further argued by the learned counsel for the complainants that, in case, the project is revived and construction is started at the site then the complainants should have right for a flat on payment of the required amount as per the terms and conditions of the agreement executed between the complainants and OPs. This argument of the learned counsel for the complainants has no force as the complainants have withdrawn the amount deposited by them and therefore, they have no right of any flat in the project in the eventuality of the construction of the flats again. 17. Thus, the complainants are entitled for the refund of the entire amount of Rs.5,29,100/-. They are also entitled to receive interest at the current maximum SBI term deposit rate on the total paid up amount i.e. Rs.5,29,100/- from the dates of respective deposits till the date of its realization. In addition to this, the complainants are also entitled to a compensation of Rs.50,000/- for mental agony and harassment besides Rs.5000/- as costs of litigation. 18. In view of the above findings, all the three complaints are allowed. The OPs are directed to pay the following amounts to the respective complainants in each case (in all the three connected complaints) as under:- i) Refund the entire amount of Rs.5,29,100/- to the respective complainants. ii) Pay interest on the total amount paid to OPs by the respective complainants from the respective dates of deposits till dates of its return at the current maximum SBI term deposit rate prevalent on the date of refund. iii) Pay Rs.50,000/- to the respective complainants as compensation for causing mental agony and harassment. iv) Pay Rs.5,000/- to the respective complainants as costs of litigation. 19. This order be complied with by OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.5,79,100/- to the respective complainants in each case along with interest on the total amount paid by them from the respective dates of deposits till its realization along with interest @ 18% p.a. besides Rs.5000/- as costs of litigation. 20. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 15.10.2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT cm sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
