Per Justice Sham Sunder , President This order shall dispose of the aforesaid three appeals, arising out of the order dated 4.4.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint in the following terms and directed the OPs to; (i)Refund the amount of Rs.14,47,955/- to the complainants along with interest at the current maximum SBI term deposit rate from the respective dates till actual payment. (ii)Pay Rs.50,000/- to the complainants as compensation for causing mental agony and harassment (iii)Pay Rs.7,000/- to the complainants as costs of litigation. It was also directed that the order be complied with by the OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which the OPs shall be liable to pay Rs.14,97,955/- i.e. [Rs.14,47,955 + Rs.50,000] alongwith interest @18% per annum. The above said interest shall be payable on Rs.14,47,955/- from the date of respective deposits whereas the above said interest shall be payable on the amount of compensation of Rs.50,000/- from the date of filing the complaint i.e.7.7.2010 till actual payment. In addition to this, OPs were also liable to pay Rs.7,000/- as costs of litigation. 2. The facts, in brief, are that Sh. Jaswant Singh Sanghera and his wife Smt. Amarjit Kaur applied for a residential flat in the project of OP Nos.1 & 2 i.e. ‘Parsvnath Prideasia’ at Rajiv Gandhi Chandigarh Technology Park, Chandigarh, by depositing a sum of Rs.6,07,750/- alongwith the application form on 1.10.2008. They were allotted two bedroom Dwelling Unit No.D3-304, 3rd floor in the project of OP No.1&2 vide allotment letter dated 27.10.2008/17.11.2008 (Annexure C-3). The balance amount was to be paid as per construction linked payment plan. The complainants further paid a sum of Rs.4,10,750/- on 6.10.2008, Rs.7,000/- on 8.12.2008, Rs.1,90,000/- on 8.12.2008 and Rs.2,32,455/- on 13.1.2009. In this manner, the complainants deposited a sum of Rs.14,47,955/-, in all. The said payment was duly acknowledged vide receipts Annexures C-4 to C-7, by the OPs. A flat buyer agreement dated 21.1.2009 was executed amongst the complainants and the OPs. Earlier thereto, a development agreement dated 6.10.2006 was executed between the OPs. According to the aforesaid agreements, the construction of the residential units, in the project, was to be completed within a period of 36 months from 6.10.2006, the date when the development agreement was executed. It was stated that OP Nos.1 & 2 failed to make any development at the site. When the complainants found that no progress had been made with regard to construction of the residential units at the site, they asked for the refund of amount of Rs.14,47,955/- alongwith interest etc.. The OPs, however, failed to refund the amount. It was further stated that the acts of the OPs amounted to deficiency, in service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by them. 3. OP Nos.1 & 2, in their written reply, admitted the factual matrix of the case. It was stated 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, for which purpose land measuring approximately 123.79 acres with private sector participation, was earmarked. Bids/proposals from private parties for this activity were invited. OP Nos.1&2 submitted its proposal with the Chandigarh Administration, which was accepted, vide its letter of acceptance dated 09.06.2006. It was further stated that soon after taking possession of the land measuring 123.79 acres, they started fencing the same. However, the Government of Haryana, claimed ownership over a portion of the said land. The OPs were, thus, stopped from carrying out their activities. The matter was taken up by the OPs with the Chandigarh Administration a number of times and a number of meetings were also held between the OPs and the State of Haryana. However, the matter with regard to the ownership of a portion of the land, the possession whereof was handed over to the OPs remained unsettled. It was further stated that on 12.4.2007, the Chandigarh Housing Board informed OP NO.1 in writing that the dispute had been resolved with the Haryana Government and handed over a revised demarcation plan of the land to it. The Chandigarh Housing Board, however, refused to deliver physical possession of the revised/changed area. The alternative and revised demarcated land offered to OP Nos.1&2, by the Chandigarh Housing Board included land belonging to the Forest Department, on which there existed more than 200 full grown trees, and restrictions were imposed by the Forest Department with regard to the felling of the same. It was further stated that since possession of the entire unencumbered land required for the development of the project had not been handed over to OP NOs.1 & 2, the construction activity could not be started and, as such, delay in the completion of the residential units , as also delivery of possession thereof to the complainants resulted. It was further stated that the dispute between OP Nos.1 & 2 and the Chandigarh Housing Board with regard to the project itself had already been referred to the arbitration and, as such, the District Forum had no jurisdiction to entertain the complaint and decide the same. It was further stated that the refund of amount could be made to the complainants, only after deduction of 5% of the basic price, as per clause 5(a) of the agreement dated 21.1.2009. It was further stated that a period of 36 months, for completion of the residential units, was to commence, from the date of delivery of possession of the entire land by the Chandigarh Housing Board to OP NOs.1&2 as per the development agreement, and not from the date of execution of the same. It was denied that the OP Nos. 1 & 2 were deficient, in rendering service and also indulged into unfair trade practice. 4. OP NO.3, Chandigarh Housing Board, in its written reply, besides admitting the factual matrix of the case, stated that flat buyer agreement annexure C-8 was executed amongst the parties. It was further stated that according to clause 9(a) of the said agreement, OP Nos.1 & 2 were required to complete the construction within 36 months of the signing of the agreement. It was further stated that it was the developer who was responsible for non-completion of the construction within the stipulated period and it had no concern with the same. It was further stated that in the event of seeking the refund by the buyer, the amount deposited by him could only be refunded to him, after deduction of 5% of the basic price, as per clause 5(a) of the flat buyer agreement. It was further stated that there was no deficiency, in service, on the part of OP No.3,in rendering service, nor it indulged into unfair trade practice. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties , and, on going through the evidence and record of the case, the District Forum, passed the order, in the manner, referred to, in the opening para of the instant order. 7. Feeling aggrieved, Appeal No.108 of 2011 by Sh.Jaswant Singh Sanghera & another, appellants/complainants claiming a sum of Rs.2,10,000/-, the amount spent by them, on their travel to India from U.K, where they were residing, and enhancement of costs of litigation from Rs.7000/- to 15,000/-, Appeal No.114 of 2011 by Chandigarh Housing Board, appellant/OP, for exonerating it of its liability to pay any amount and for setting aside the impugned order, and Appeal No.129 of 2011 by M/s Parsvnath Developers Ltd & another, appellants/OPs, for setting aside the impugned order being illegal, were filed. 8. We have heard the Counsel for the parties, and have gone through the record of the case, carefully. 9. The Counsel for the appellants/complainants, in Appeal case No.108 of 2011 submitted that, though, the complainants claimed a sum of Rs.2,10,000/- the expenses incurred by them on their visits to India as they are non-resident Indians and costs of litigation to the tune of Rs.15,000/-, yet, the District Forum fell into a grave error in not considering their prayer and not granting them the reliefs aforesaid. 10. The Counsel for the Chandigarh Housing Board, appellant/OP, in Appeal Case NO.114/2011, submitted that, it was the responsibility of the developer to construct the flats and deliver possession thereof within 36 months from 6.10.2006, the date when the development agreement between the OPs, was executed. He further submitted that, as per clause 9( c)of the flat buyer agreement, on account of non-delivery of possession within the prescribed time, compensation indicated therein, could only be awarded against the developer, but the District Forum was wrong, in holding the Chandigarh Housing Board, jointly and severally liable to pay the compensation of Rs.50,000/-. It was further submitted that the compensation of Rs.50,000/- for alleged mental agony and harassment was wrongly awarded by the District Forum. It was further submitted that the appeal be accepted and the order of the District Forum be set aside. 11. The Counsel for the Parsvnath Developers Ltd. and another, appellants/OPs in Appeal No.129/2011 submitted that, till date the Chandigarh Housing Board had not handed over the possession of the entire unencumbered land, required for the project in question. He further submitted that it was, under these circumstances, that the construction of the project could not be undertaken and the possession could not be delivered, as it was an integrated project. He further submitted that the appellants have not abandoned the project. He further submitted that the complainants were only entitled to the refund of amount, after deduction of 5% of the basic price, in view of the provisions of clause 5(a) of the flat buyer agreement. He further submitted that the interest was awarded by the District Forum, at a higher rate. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 12. The first 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 complainants applied for the allotment of a flat. They were allotted a flat. They deposited Rs.14,47,955/- through various instalments, towards the price of flat, which was allotted to them, as admitted by the OPs. Clause 9(a) of the flat buyer agreement annexure C8, dated 21.1.2009, 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 restraints, 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.” 13. The plain reading of Clause 9(a) of the flat buyer agreement, extracted above, clearly goes to reveal, that the construction of the residential units, was to be completed, within a period of thirty six months of the signing of the development agreement dated 06.10.2006 annexure R2. The time could be extended, in terms of the development agreement dated 6.10.2006, subject to force majeure, and the circumstances beyond the control of the developer. OP Nos.1 & 2 admitted, in their written reply that, in the first instance, the possession of entire project land was handed over to them by OP No.3, and when the fencing was being done, the Haryana Govt. raised dispute with regard to the ownership of a portion of the land. It is further the case of OP Nos. 1 & 2, that when that dispute was resolved, and in lieu of the disputed portion of the land, possession of some other land was given to them, the same was discovered to be that of the Forest Department. Even if, it is assumed for the sake of arguments, that the ownership of a small portion of the land was disputed, that did not mean that the construction of the residential units, could not be undertaken, on the remaining land, which constituted the major portion of the project land, and with regard whereto, there was no dispute, whatsoever. Therefore, it was not, on account of the circumstances, beyond the control of the developer, that delay was caused, in the construction of residential units . The developer also could not take shelter of force majeure clause. No document was produced by OP Nos.1 & 2, that any restriction was imposed by any Court or Authority upon them, as a result whereof, they could not raise construction of residential units, in time. Even, it was not proved that there was delay, in the grant of environmental clearance. OP Nos.1 & 2, without first confirming the clear title of the land, over which the project was to be developed, started booking the flats and allotting the same to the prospective buyers, by fleecing them of huge amounts and making misleading statement that the construction of residential units will be completed within 36 months w.e.f. 6.10.2006. Even long after the expiry of the stipulated period, not even a brick was laid, at the site, what to speak of raising construction. OP Nos.1 & 2, thus, indulged into unfair trade practice. It is, therefore, held that the construction of the residential units was to be completed within 36 months from 6.10.2006 i.e. by 5.10.2009. 14. The next question, that arises for consideration, is, as to whether the complainants were entitled to the refund of amount deposited by them with interest or not ? Clause 9(d) of the flat buyer agreement annexure C8, 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.” 15. The complainants deposited instalments, in time, with the hope of getting possession of the flat allotted to them, within a period of 36 months from 10.6.2006, but they found that even by the year 2010, not even a single brick had been laid, at the spot, what to speak of construction of flats, and delivery of possession thereof to the buyers. In these circumstances, the complainants could not wait for an indefinite period. The only option with the complainants, in such circumstances, was to ask for the refund of the amount. They, thus, issued a notice for the refund of amount with interest, but the OPs failed to do so. The plain reading of Clause 9(d) extracted above, reveals that if the developer, for whatever the reasons may be, fails to deliver the residential unit to the buyer, the developer and the Chandigarh Housing Board, shall be liable to refund the amounts, received from the buyer, with interest, at the SBI Term Deposit Rate, as applicable, on the date of refund. The OPs were, thus, deficient, in rendering service by neither delivering the possession of the flat, within the stipulated time, nor refunding the amount with interest as provided under Clause 9(d) of the agreement, referred to above. The complainants were, thus, entitled to the refund of the amount of Rs.14,47,955/- with interest at the SBI term deposit rate, as per Clause 9(d) of the Agreement, referred to above, from the date of deposit till realization. The District Forum was right, in holding so. 16. Coming to the submission of the Counsel for OP Nos.1 & 2, that since there was breach of Clause 5(a) of the flat buyer agreement, by the complainants, they were entitled to the refund of the amount deposited by them, only after deduction of 5% of the basic price of the flat, it may be stated here, that such an argument advanced by the Counsel for OP Nos.1 & 2, is misconceived. Clause 5(a) of the aforesaid agreement C8 , reads as under ; “5(a)Timely payment of the instalments/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 of 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.” 17. The plain reading of Clause 5(a) extracted above, clearly goes to show that admittedly the payment of instalments/amounts due, shall be the essence of the agreement, and if the payment was not made, within the stipulated period, or the buyer committed breach of any of the terms and conditions of the agreement, the agreement shall be liable to be cancelled and the amount would be refunded, after deduction of 5% of the basic price. The question arises, as to whether, there was default, in making the payment of instalments, or violation of any other term and condition of the agreement aforesaid, on the part of the complainants, or not ? It was proved, as also admitted by the OPs, that the payment of instalments was made by the complainants, as and when, the same fell due. There was no delay, in making payment of instalments, towards the price of the flat, on the part of the complainants. Since, after the payment of the aforesaid amount, and expiry of the period of 36 months, from 6.10.2006, not even a single brick, had been laid, the complainants were left with no alternative than to ask for the refund of the amount. There was also no breach of any other term and condition of the agreement, referred to above, on the part of the complainants. As such, the provisions of Clause 5(a), extracted above, relating to the deduction of 5% amount of the basic price, could not be invoked. The complainants were, thus, entitled to the refund of the entire amount, deposited by them, with interest. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, are affirmed. The submission of the Counsel for the Parsvnath Developers & another appellants, in this regard, being without merit, must fail, and the same stands rejected. 18. The next question, that arises for consideration, is, as to whether, the complainants are entitled to the expenses of Rs.2,10,000/- claimed to be incurred by them on their visits to India from UK and enhancement of litigation costs. It may be stated here that the complaint was instituted by the complainants through their Counsel on 7.7.2010. The perusal of the order sheets (zimni orders) does not reveal that on any date of hearing either both of them or one of them was present, in the District Forum. C9 is a photocopy of the passport of Jaswant Singh Sanghera, one of the complainants. A photocopy of the document at page 52 of the District Forum file bears the rubber stamps of immigration authorities, in photo-impression, but some of them are not clearly legible. These do not indicate that from 7.7.2010 onwards both the complainants or any of them came to India. Jaswant Singh Sanghera, one of the complainants did not give the details of his visits to India from time to time. Thus, it could not be said that the complainants incurred Rs.2,10,000/- on their visit to India during the period the complaint remained pending in the District Forum. The Counsel of the complainants could take care of the litigation, on their behalf. It is settled principle of law that the Consumer Foras are required to grant compensation, which is commensurate with the facts and circumstances of the case. The compensation on account of alleged financial loss, mental agony and harassment, should neither be unreasonable, nor unfair. The Consumer Foras are not required to enrich the consumers at the cost of service providers. Taking into consideration all the facts and circumstances of the case, in our considered opinion, the District Forum was right, in coming to the conclusion that if a compensation of Rs.50,000/-, was granted, it would meet the ends of justice. The complainants, therefore, were rightly held not entitled to a sum of Rs.2,10,000/-, claimed by them on account of the alleged expenditure, incurred by them, on their visits, to India from UK. The submission of Counsel for appellants/complainants in this regard, being devoid of merit is rejected. 19. In the relief sought by the appellants/complainants in Appeal No.108 of 2011, they did not claim compensation, in terms of clause 9(c) of the flat buyer agreement dated 21.1.2009 and not asked for enhancement of the compensation already granted. In the complaint, the complainants claimed compensation in the sum of Rs.50,000/- only and the same was granted to them. Since in the appeal, relief has not been claimed by them for enhancement of compensation, or for grant of the same in pursuance of clause 9( c) of the flat buyer agreement, this Commission cannot grant the same to them. 20. Coming to the costs, it may be stated here, that, no doubt, the complainants/appellants claimed costs of Rs.15,000/-, but it was the discretion of the District Forum, after taking into consideration the various factors as to how much cost was to be awarded to the complainants (now appellants). In our considered opinion, the discretion exercised by the District Forum, in awarding costs, to the tune of Rs.7000/-, can be said to be fair and reasonable. No ground for enhancement of costs of litigation is made out. The submission of the Counsel for the appellants, in this regard, being devoid of merit is rejected. 21. The District Forum, fell into an error in holding that the Chandigarh Housing Board, was jointly and severally liable with the developer to pay the compensation awarded. According to clause 9(c ) of the agreement annexure C8, it was only the developer, which was liable to pay the compensation and not the Chandigarh Housing Board. To this extent, the order of the District Forum requires modification. 22. The District Forum granted interest @ 18% p.a., in the event of non-compliance of the order within 45 days. It may be stated here, that the interest @ 18% awarded, on account of non-compliance of its order within 45 days, is also on the higher side. In our opinion, the interest @ 12% p.a., on account of non-compliance of the order, could be said to be just, reasonable and fair. The order of the District Forum, in this regard, also requires modification. 23. Although, the dispute interse the OPs i.e. Parsvnath Developers Ltd. and the Chandigarh Housing Board, as per clause 18 of the Escrow Agreement dated 1.06.2007, executed amongst them, and the State Bank of India has already been referred to the Arbitrators, yet the jurisdiction of the Consumer Fora was not barred. With a view to resolve the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection Act,1986 is 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.” 24. 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 other remedy of resorting to the arbitration proceedings, as per agreement annexure R3, has been availed of by the OPs, that would not oust the jurisdiction of the Consumer Fora, in view of Section 3 of the Act. Similar principle of law was laid down in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi (2003)2 SCC412 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2006)3 SCC721. The submission of the Counsel for the appellants, in appeal NO.430 of 2010, being devoid of merit is rejected. 25. For the reasons, recorded above, Appeal No.114 of 2011 Chandigarh Housing Board Vs Jaswant Singh Sanghera & Ors and Appeal No.129 of 2011 titled as Parsvnath Developers Ltd. & another Vs Jaswant Singh Sanghera & Ors. , are partly accepted, with the following modifications; (i)that only the Parsvnath Developers Ltd. shall be liable to pay compensation of Rs.50,000/- awarded by the District Forum, for harassment and mental agony, caused to the complainants, and the Chandigarh Housing Board shall not be liable to pay the same. (ii) that the direction of the District Forum regarding the grant of penal interest @ 18% p.a. on non-compliance of the order within 45 days, is modified, and instead the OPs, are ordered to pay penal interest @ 12% p.a. on the payable amounts, on account of non-compliance of the order, within the period stipulated by the District Forum. (iii) the remaining reliefs, granted by the District Forum, shall remain unaltered. 26. Appeal No.108 of 2011 titled as Jaswant Singh Sanghera & another Vs Parsvnath & Others, being devoid of merit, is dismissed. 27. The parties in all the appeals, are left to bear their own costs. 28. Complete certified copy of this order, shall be placed in appeal file Nos.114 of 2011 and 129 of 2011. 29. Certified Copies of this order be sent to the parties, free of charge. 30. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
