Punjab

StateCommission

FA/1118/2013

Indu Bala & Ors. - Complainant(s)

Versus

Parsvnath Castle & Ors. - Opp.Party(s)

Jagdish Manchanda & Sandeep Goyal

15 Sep 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

 (1)                       First Appeal No.1118 of 2013

 

                                                          Date of Institution: 15.10.2013  

                                                          Date of Decision:  15.09.2015

 

1.      Indu Bala wife of Mr. Vinod Bhushan Dahiya

 

2.      Mr. Vinod Bhushan Dahiya son of Sh. Ganpat Rai, both  residents of House No.769, Sector 29-A, Chandigarh

 

                                                                                  …..Appellants/Complainants

         

                                      Versus

 

1.      Parsvnath Castle, around village Dahrian, Tehsil Rajpura, District Patiala, Punjab through its General Manager.

 

2.      Parsvnath Developers Limited registered and corporate office  6th Floor, "Arunachal", 19, Barakhamba Road, New Delhi,     through Managing Director/Authorized Signatory.

 

                                                                                         ….Respondent/Opposite Parties

 

         

First Appeal against order dated 20.08.2013 passed by the District Consumer Disputes Redressal Forum, Patiala

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Harcharan Singh Guram, Member.     

Present:-

 

          For the appellants                 :  Sh.Vinod Bhushan, in person.

          For the respondents              :  None

 

                                                   AND

(2)               First Appeal No.1308 of 2013

 

 

                                                          Date of Institution: 28.11.2013  

                                                          Date of Decision:  15.09.2015

 

1.      Parsvnath Castle, around village Dahrian, Tehsil Rajpura,  District Patiala, Punjab through its General Manager.

 

2.      Parsvnath Developers Limited registered and corporate office, 6th floor, Arunachal 19, Barakhamba Road, New Delhi through                 Managing Director.

          Appellant nos. 1 and 2 through its authorized signatory Mr. Ajay Kashyap

                                                                                                                                                                                                                                                                              …..Appellants/Opposite Parties

         

                                      Versus

 

 

1.      Indu Bala w/o Sh. Vinod Bhushan Dahiya, r/o H.No.769, Sector 29-A, Chandigarh.

 

2.      Vinod Bhushan Dahiya son of Sh. Ganpat Rai, r/o H.No.769, Sector 29-A, Chandigarh.

                                                          …..Respondents /Complainants

 

 

         

First Appeals against order dated 20.08.2013 passed by the District Consumer Disputes Redressal Forum, Patiala

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Harcharan Singh Guram, Member.

         

Present:-

 

          For the appellants       :  None

          For the respondents    :  Sh.Vinod Bhushan Dahiya in person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

          By this common judgment, we intend to dispose of the above referred two First Appeals together, as they can be conveniently disposed of together, because they have arisen out of the same order dated 20.08.2013 of District Consumer Disputes Redressal Forum Patiala. First Appeal No.1118 of 2013 has been filed by the appellants (the complainants in the complaint) against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 20.08.2013 of District Consumer Forum Patiala. Second connected First Appeal No.1308 of 2013 has been preferred by appellants (the opposite parties in the complaint) against respondents of this appeal (the complainants in the complaint), challenging the order dated 20.08.2013 of District Forum Patiala, accepting the complaint of the complainant by directing OPs to make the payment of compensation to the complainant w.e.f. 07.04.2011 @ 53.80 per sq. meter or @ 5/- per sq. ft of the super built up area of the flat per month with interest @ 12% per annum till the final payment and they shall further go on making the payment of the same till the delivery of the possession of the flat after every month or for the sake of the convenience of the parties after every quarter with interest, as noticed above, besides Rs.4000/- assessed as cost of litigation.  The order in this case shall be pronounced in First Main Appeal No.1118 of 2013.

2.      The complainant Indu Bala and others have filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the agreement was entered into between the parties for purchase of a built up residential flat bearing no.T2-203 on second floor in tower no.T2 with approximate area of 1050 sq.ft of super built up area in the complex named "Parsvnath Castle" Tehsil Rajpura District Patiala by depositing cheque bearing no.137370 dated 24.06.2007 drawn on United Bank of India Branch New Delhi of Rs.25,000/- and another cheque bearing no.618545 dated 24.06.2007 drawn on HDFC Bank Branch New Delhi of Rs.25,000/- as 4% of the total value of the flat as booking amount. As per scheme, the complainant had to pay 4% at the time of booking and 6% within 30 days at the time of booking, 10% within 60 days, 10% on start of ground floor roof slab, 10% on start of first floor roof slab, 10% on start of 2nd floor roof slab, 10% on the start of 3rd floor roof slab, 10% on start of top floor roof slab, 10% on start of internal plaster, 10% on start of flooring, 5% on start of external plaster and lastly 5% at the time of offer of possession. Payment Plan B was scheduled accordingly between the parties. The net rate was negotiated with the complainant @ Rs.1165.73 per sq. feet. The complainant further issued cheque bearing no.090646 dated 14.07.2007 drawn on State Bank of Patiala Branch Gurgaon of Rs.36,201/- and another cheque bearing no.618547 dated 16.07.2007 drawn on HDFC Bank Branch Gurgaon of Rs.36,201/- to OPs as 6% of total value, as per payment plan. The complainant also issued cheque bearing no.329045 dated 08.10.2007 drawn on Bank of Punjab Ltd., Branch Gurgaon of Rs.86,201/- and another cheque bearing no.112384 dated 09.10.2007 drawn on Union Bank of India Branch Gurgaon of Rs.86,201/- as 10% of total costs of the flat, as per payment plan. Buyer's agreement dated 17.10.2007 was duly executed between the parties on 17.10.2007. The complainant further issued a cheque no.007248 dated 23.08.2008 of Rs.29,808/-, cheque no.007249 dated 23.08.2008 of Rs.22,402/- drawn on State Bank of Patiala Branch Gurgaon, pay order no.183399 dated 23.08.2008 of Rs.1,00,000/- drawn on Union Bank of India branch Gurgaon, cheque no.743555 dated 15.01.2009 of Rs.1,22,402/- and a cheque no.558987 dated 13.12.2010 of Rs.1,25,554/- and another cheque no.558988 dated 17.01.2011 of Rs.1,25,554/-. Previously, complainant no.2 and One Ishwar Singh were the allottees of the flat in dispute, but after that, Mr. Ishwar Singh transferred his rights in favour of the complainant therein, vide endorsement certificate issued by the OPs. As per clause 10(c) of the buyer's agreement, in case of delay in construction of the flat beyond the period, the developer would pay compensation to the buyer @ Rs.53.80 per sq. meter or @ 5/- per sq. feet of the super area of the flat per month for the period of delay. The possession of the said plot was purposed to be delivered by the developers to purchasers/complainants by 17.10.2010, but despite receipts of payment, the OPs delayed the delivery of the possession to complainants. Possession has not been delivered to the complainant for the last five years by the OPs. The complainants have, thus, filed the complaint against OPs, directing them to refund the amount of Rs.8,20,524/- deposited by the complainant to OPs along with interest @ 24% per annum, besides compensation of Rs.5,00,000/- for mental harassment, Rs.1 lac as costs of litigation and Rs.30,000/- for future litigation.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was pleaded by the OPs that Mr. Ishwar Singh and Mr. Vinod Bhushan Dahiya booked the residential unit no.T2-203 in Tower T2 on 2nd floor in the Project namely "Parsvnath Castle" by paying an amount of Rs.50,000/-  along with application form dated 24.06.2007. Above Ishwar Singh, Mr. Vinod Bhushan Dahiya entered into Flat Buyers Agreement with the OPs. Ishwar Singh and Mr. Vinod Bhushan Dahiya and complainant no.1 entered into an agreement of sale of flat dated 23.08.2008 and affidavit-cum-undertaking was also duly executed by the complainant no.1. The Flat Buyer's Agreement was endorsed by the OPs on 26.08.2008. The various terms and conditions of the Flat Buyer's Agreement were duly read over and understood by both the parties. It was admitted by the OPs that complainants have paid an amount of Rs.8,20,523.70 P to OPs being 60% of the basic costs of the flat. The OPs informed the complainants about the progress of the construction work at the site and rescheduling activities regarding progress of the construction work. It was further alleged therein that complainants have no cause of action to file the complaint. It was further pleaded by the OPs that complex question of facts and laws are involved in this case, which cannot be adjudicated in summary proceedings by the Consumer Fora.  It was further pleaded that Flat Buyers Agreement imposed rights and liabilities on both the complainants. OPs pleaded the terms and condition, as set out in the Flat Buyers Agreement, as mentioned in clause 10(a) and clause 10(c). It was further pleaded that time was not essence of the contract between the parties. It was further pleaded that the global recession affected the market considerably in the year 2009 and it even extended to the subsequent years. The non-completion of the project was beyond the control of the OPs and these facts were well in the knowledge of the complainants. The OPs further pleaded that they have not denied this fact that complainants have not applied with the terms and conditions of the buyer's agreement. It was further pleaded that construction of the flat was commenced in March 2008 and after receipt of necessary sanctions and approvals and as per the Flat Buyers Agreement, the project was to be completed by March 2011, to be extended by another six months, as provided under the Flat Buyers Agreement i.e. until September 2011. The OPs further pleaded that there is no question for refund of the deposited amount under Clause 8(b) to the complainants in this case. Refund of the deposited amount applies only when cancellation of booking has been made, subject to terms and conditions, as contained in the cancellation clause 5 of the application form, as well as, clause 5(a) of the Flat Buyers Agreement.  OPs controverted the other averments of the complainant and, thus, prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavit of Vinod Bhushan complainant Ex.C-A, affidavit of Indu Bala another complainant is Ex.C-B along with copies of the documents Ex.C-1 to Ex.C-19. As against it, OPs tendered in evidence affidavit of Ajay Kashyap General Manager (commercial) with Parsvnath Developers Limited /OPs along with copies of the documents Ex.OP-1 to Ex.OP-6. On conclusion of evidence and arguments, the District Forum Patiala, accepted the complaint of the complainant by directing the OPs to make the payment of compensation to the complainant w.e.f. 07.04.2011 @ Rs.53.80 per sq. meter or @ Rs.5/- per sq. ft of the super built up area of the flat per month with interest @ 12% per annum till the final payment and further directed that they should go on making the payment of the same till the delivery of the possession of the flat after every month or for the sake of the convenience of the parties after every quarter with interest as noticed above, besides Rs.4000/- as cost of the litigation.  Dissatisfied with the order of District Forum Patiala dated 20.08.2013, two separate appeals have been preferred against the same. The complainants filed First Appeal No.1118 of 2013 and OPs filed second First Appeal No.1308 of 2013.

5.      We have heard appellants in person, whereas none has appeared on behalf of respondents in First Appeal No.1118 of 2013 and we have also heard respondents in person, whereas none has appeared on behalf of appellants in First Appeal No.1308 of 2013.

We have carefully considered the pleadings of the parties on record. The evidence adduced on record by the parties has also been examined by us. The affidavit of Vinod Bhushan Dahiya complainant is Ex.C-A on the record. This affidavit is verbatim reproduction of the version of the complaint on oath by this deponent. Similarly, affidavit of Indu Bala another complainant is Ex.C-B on the record, which is reiteration of the version of the complaint on oath by this deponent. Ex.C-1 to Ex.C-7 pertain to receipts of payments deposited by the complainant with OPs. The OPs have also admitted this fact in their written reply before District Forum that they have received the amount of Rs. 8,20,524/- from the complainants. We need not refer to the receipts again because this fact is not disputed by the OPs in this case. Ex.C-8 is Flat Buyers Agreement dated 17.10.2007. The parties are strictly governed by the terms and conditions, set out in this buyer's agreement Ex.C-8 on the record. Vide, endorsement Ex.C-16, the complainants have been endorsed to be the purchaser by the OPs of this flat. As against it, OPs relied upon the affidavit of Ajay Kashyap General Manager (commercial) with Parsvnath Developers Limited /OPs Ex.OP-A. He stated in this affidavit that the contents of the written reply be taken as evidence on oath. Ex.OP-1 is resolution passed by Ops authorizing Ajay Kashyap to defend this case.  Ex.OP-2 is agreement to sell between Ishwar Singh and Smt. Indu Bala, vide which Indu Bala stood transposed, as complainant in this case. Ex.OP-3 is affidavit of Indu Bala. Ex.OP-4 is regarding change of right to purchase flat no.T2-203. Ex.OP-5 is Flat Buyer Agreement on the record on the side of OPs. Ex.OP-6 is statement of account.

6.      From careful appraisal of above-refereed evidence on the record and hearing the respective submissions of counsel for the parties, we are of this view that the payment of amount of Rs. 8,20,524/- has been made by the complainants to OPs for purchase of the flat and it is is not a disputed fact. We are to adjudicate the case on the basis of the terms and conditions of the buyer agreement, vide which the parties are governed in this case. The relevant clauses 10(a) and 10(c) thereof reproduced as under :-

          10(a) Construction of the flat is likely to be completed within a           period of thirty six (36) months, extendable by six (06) months      from the date of commence of construction on receipt of     sanction of building plans/revised building plans and approvals of all concerned authorities including the Fire Service     Department, Civil Aviation Department, Traffic Department,       Pollution Control Department, as may be required for         commencing and carrying on construction. The construction   period shall be subject to force majeure, restraints or        restrictions from any courts/authorities, non-availability of      building materials, disputes with contractors/work force etc and      circumstances beyond the control of the Developer and subject         to timely payments by the flat buyers. No claim by way of           damages/compensation shall lie against the developer in case        of delay in handling over possession on account of any of such      reasons and the period of construction shall be deemed to be       correspondingly extended. The date of submitting application           to the concerned authorities for issue of completion/part           completion/occupancy/part occupancy certificate of the           tower/complex shall be treated as the date of completion of the    flat for the purpose of this clause/agreement.

          10(c) In case of delay in construction of the flat beyond the     period as stipulated subject to force majeure and other        circumstances, as aforesaid under sub clause (a) above, the     developer shall pay to the buyer compensation @ Rs.53.80    per sq. meter or @ Rs.5/- per sq. feet of the super area of the    flat per month for the period of delay. Likewise, if the buyer          fails to settle the final account, execute sale deed and take    possession of the flat within 30 days of the final call notice by          the developer, the buyer shall be liable to pay the developer          charges @ Rs.53.80 per sq. meter or @ Rs.5/- per sq. feet of      the super area of the flat per month on expiry of 30 days     notice.

It is, thus, evident from perusal of the relevant clauses of the buyer's agreement clause 10(a) and clause 10(b) (supra), that the construction was to be completed by OPs within a period of 36 months, extendable by six months from the date of commencement of construction on receipt of sanction of building plans/revised building plans. The construction period shall be subject to force majeure, restraints or restrictions from any court or authorities, non-availability of building materials, disputes with contractors. Clause 10(c) further lays down that in case OPs failed to complete construction of the plot and to deliver the possession beyond the period, as stipulated under clause 10(a), the developer shall pay to the buyer compensation @ Rs.53.80 per sq. meter or @ Rs.5/- per sq. feet of the super area of the flat per month for the period of delay. 7.          Now, we have to adjudicate this point whether there is any delay on the part of Ops in completing the construction in this case or not? Flat Buyers Agreement was executed on 17.10.2007 between the parties. Subsequently, Indu Bala was transposed in place of Ishwar Singh, as purchaser on the array of complaint, vide endorsement made on application Ex.OP-4, moved by said Ishwar Singh and Vinod Bhushan Dahiya. There is no dispute about this fact between the parties. Clause (a) of the buyers agreement Ex.C-8 dated 17.10.2007 provided period of 36 months for completion of the plot, which was further extendable by six months. Even if, it is taken that it is liable to be extended for further period of six months, even then, construction has to be assumed to have been started from the date of buyer's agreement i.e. 17.10.2007. Period of 36 months, as per clause (a) of buyer's agreement expired on 17.10.2010. Period of six months has is extendable and, thus, maximum limit of raising complete construction by the OPs, as per buyer's agreement is up to 07.04.2011 at the most. The OPs are bound to deliver the possession of the flat to complainant after 07.04.2011 without an further explanation thereto. The complainant eventually filed complaint before District Forum on 05.04.2013 for non-delivery of the possession of the flat by the OPs. As per clause (c) of buyer's agreement, the Ops are bound to pay the compensation to complainant @ Rs.53.80 per sq. meter or @ Rs.5/- per sq. feet. We cannot sustain the contention of complainant for refund of money deposited by them, when relationship between the parties is strictly governed by the terms and conditions of the buyers agreement  and clause 10(c) specifically governs this relationship between the parties and, as such District Forum has rightly granted the relief to the complainants by directing the OPs to pay compensation from  07.04.2011 @ Rs.53.80 per sq. meter or @ Rs.5/- per sq. feet of the super built up area of the flat per month along with interest @ 12% per annum till final delivery of possession of the flat. The direction of District Forum is strictly within the parameters of buyers agreement between the parties in this case. Consequently, the order of the District Forum is, thus, found legally sustainable and is  affirmed in this appeal.

8.      As a result of our above discussion, we find no merit in any of the appeals or the submissions raised by counsel for the parties in the above appeals, by upholding the order of District Forum Patiala dated 20.08.2013. We dismiss First Appeal no.1118 of 2013 filed by Indu Bala and others/appellants. Similarly, connected First Appeal No.1308 of 2013 filed by its appellants is also ordered to be dismissed without any order as to costs.

9.      In First Appeal No.1308 of 2013, the appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and another sum of Rs.55,000/- was deposited, vide receipt dated 12.06.2014. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the complainants by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.

10.    Arguments in these appeals were heard on 07.09.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeals could not be decided within the statutory period due to heavy pendency of court cases.

12.    Copy of this order be placed in FA No.1308 of 2013.

 

                                                                     (J. S. KLAR)

                                                     PRESIDING JUDICIAL MEMBER

 

 

                                               

                                                      (HARCHARAN SINGH GURAM)                                                                     MEMBER

September 15,  2015.                                                                  

(ravi)