PER SH.RAJINDER SINGH GILL, PRESIDING MEMBER

                Amit Chopra – Complainant, has instituted the instant complaint under section 12 of the Consumer Protection Act, 1986, inter alia, alleging that he applied for residential flat, by depositing a sum of Rs.2,64,550/- along with the application form on 17.12.2007. He was allotted residential flat No. 304 on 3^rd floor, Block No.E-4 in the project of OP No.1 & 2 i.e. Parsvnath Prideasia at Rajiv Gandhi Chandigarh Technology Park, Chandigarh. Thereafter, various amounts were deposited by the Complainant, as per details given in para no.3 of the Complainant. In this manner, an amount of Rs.14,22,750/- was deposited by the Complainant. According to the complainant, 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 alleged that OPs No.1 & 2 failed to make any development at the site. So dissatisfied with the act & conduct of OPs,  the complainant sought cancellation of allotment and refund of the amount of Rs.14,22,750/-, along with upto date interest. Despite his repeated requests, the amount in question has not been refunded by OPs, which amounts to deficiency in service and unfair trade practice.

2]             On the other hand, the case of OPs No.1 & 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. A 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 dated 09.06.2006. The case of the OPs No.1 & 2 is that soon after taking possession of the land measuring 123.79 acres, they  started erection of fencing around the said land. However, the Government of Haryana claimed ownership over a portion of the said land. OPs was thus stopped from carrying out its activities. Despite the fact that OPs 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 and the State of Haryana; the matter regarding the ownership of the land allotted to OPs still remains unsettled.  In these circumstances according to OPs, 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 12 months. The said period of 36 months, according to answering OPs, 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, according to OPs, the delay in construction of the flats and delivery of the possession is not because of the fault of OPs. In these circumstances, pleading no deficiency in service or unfair trade practice on their part, OPs prayed for the dismissal of the complaint.

3]             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.

4]             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.

5]             Admittedly a tripartite Flat Buyer Agreement which is duly signed by the buyer (complainant), Parsvnath Developers Limited (Developer) and the Chandigarh Housing Board (hereinafter referred as CHB). The complainant had deposited the required amounts with the OPs for the purchase of their respective flats, the possession thereof was to be handed over after its completion within 36 months from the date of signing of the Development Agreement but according to complainant, no steps whatsoever were taken for the completion of the flats by OP-1 and OP-2 and the amount has also not been refunded to him, despite expiry of  the period of 36 months and no possession of the flat was handed over to him.  In support of his contentions the complainant has placed on record the copy of the statement of residential apartment allotted alongwith receipts Annexure C-3 (colly) to prove that he paid a sum of Rs.14,22,750/- to the OPs in their joint account towards the part payment of the flat in question. Annexure now marked C-2 is the copy of the allotment letter dated 1/3.01.2008, wherein in has been intimated by the OPs regarding allotment of residential flat no. 304 on 3rd floor, Block No. E-4.  Annexure C-4 is the copy of flat buyer agreement. Annexure C-5 dated 4.12.2009, Annexure C-6 dated 15.01.2010  and Annexure C-7 dated 18.02.2010 are the copies of the letters written by the complainant to the OPs regarding refund of his money as there was no progress on the site of the flat, as was agreed as per agreement, whereupon in response to these letters a reply Annexure C-8  from the OP-1/OP-2 regarding cancellation of the plot was sent to the complainant.  Annexure C-9 was again written to the complainant in response to Annexure C-8 that he never asked for cancellation of the said flat rather to the contrary they have failed to construct the flat in question.  Thereafter a legal notice Annexure C-10 was sent to the OPs by the complainant on 22.02.2010.  

6]             On the other hand, learned counsel for OP-1 and 2 submitted that the possession of the project land delivered to them was not free from encumbrances, so it was not possible to raise construction thereon, whereas OP-3 contended that they are not liable for making any compensation of any kind, if any, payable to the complainants as per stipulation incorporated in clause-9(c) of the Flat Buyer Agreement. In support of their contentions OP-1 and 2 has placed on record Annexure–Z, the copy of the resolution passed by the Board of Directors of the company on 30.07.2009 and Annexure R1/1 which is the copy of the Development Agreement which took place between OP-1/OP-2 and OP-3.

7]             There is no dispute with regard to the payment of Rs.14,22,750/- by the complainant to the OPs for the said flat. It has also not been disputed that the OPs were liable to complete the construction of the flat within 36 months as per the  agreement between the parties. We have gone through the records very carefully and find that the terms and conditions of the Development Agreement Annexure R1/1 dated 6.10.2006  and Flat Buyer Agreement Annexure C-4, it clearly shows that both OP-1/OP-2 and OP-3 have admitted that at the spot the project in terms of the Scheme and the Agreement could not take off inspite of the expiry of 36 months as was agreed between the parties. 

8]             It is pertinent to mention that as per clause-2(d) of Annexure C-4 all the payments towards the consideration amount including basic price and other charges payable in terms of Scheme of Allotment and the said agreement was to be paid by Account Payee Cheque/bank drafts in the name of Parsvnath Developers Limited-CHB A/c No.30184417088 payable at Chandigarh, which clearly means that both OPs are jointly holding the account in which the amount of complainant is lying.

9]             The OPs have relied upon clause 5(a) of the tripartite agreement which 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.”

                   Perusal of the above clause clearly indicates that in case of any breach of condition or terms of the Agreement by the buyer, the allotment was liable to be cancelled and in that eventuality 5% of the basic price was be forfeited and the balance, if any, was refundable with interest as laid down in clause 5(a) of the aforesaid tripartite Agreement. In our view clause 5(a) of the Flat Buyers Agreement relied upon by OPs is not applicable in the present set of circumstances because in the present case, the complainant has not made any breach of the terms and conditions of the agreement. There is no default in payment of any installment. Rather the complainant has paid a sum of Rs.14,22,750/- before time. So, Clause 5(a) of the Flat Buyers Agreement is not applicable to the facts and circumstances of the present case.  Otherwise also, it has no where been alleged by the OPs that there was any breach of any condition of the Agreement committed by the complainant regarding payment towards of the said flat whereas on the other hand the OPs are proved to have not acted as per the terms and conditions required under the Agreement which was duly signed by the parties.  Moreover, if there was any dispute between OPs regarding delivery of the possession of Project Land or raising of construction thereon for that complainant cannot be allowed to suffer and at the same time OPs also cannot be allowed to take benefit of their own wrongs. Admittedly the complainant has not been given possession of the flat in question within the prescribed period agreed between the parties nor any steps have been taken by the OPs to refund the amount to the complainant, which surely amounts to deficiency in service and unfair trade practice. 

10]            As per Clause-9(d) of the Flat Buyer Agreement Annexure C-4, it was agreed upon between both the parties that if the developer is unable to deliver the unit to the buyer, the Developer and CHB shall be liable to refund the buyer the amount received from them with interest. The said clause is reproduced as under:-

 “Clause 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, the OPs have failed to deliver the possession within the period prescribed in the Flat Buyers Agreement due to some dispute over a portion of land. So both M/s Parsvnath Developers Ltd.(OP-1/OP-2) and Chandigarh Housing Board (OP-3) were liable to refund the amount to the complainant with interest at the current SBI term deposit rate as per the agreement but they did not which amounts to deficiency in service and unfair trade practice. The complainant cannot be forced to wait for indefinite period for the possession of the flat, therefore, he is entitled for the refund of Rs.14,22,750/- alongwith  interest at the current SBI term deposit rate from the date of its deposit. The OPs are also liable to compensate the complainant for causing him mental and physical harassment.

11]            In view of the above discussion, we are of the considered opinion that the present complaint must succeed and the same is accordingly allowed.  The OPs are therefore jointly and severally directed to refund to the complainant Rs.14,22,750/- alongwith  current SBI term deposit interest rate from the date of its deposit to them  alongwith Rs.50,000/- as compensation for causing him mental agony and harassment.  The OPs shall also pay Rs.5,000/- to the complainant as costs of litigation. The order shall be complied with by the OPs jointly and severally within 30 days from the date of receipt of copy of this order failing which the OPs would  be liable to pay the same along with penal  interest @ 18% p.a. till the order is fully complied with.

                    Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.