Chandigarh

StateCommission

CC/38/2015

Saudamini Arora - Complainant(s)

Versus

Parsvnath Developers Limited - Opp.Party(s)

Manoj Lakhotia, Adv.

01 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	38 of 2015
Date of Institution	:	04.03.2015
Date of Decision	:	01.05.2015

 

1. Saudamini Arora wife of Vivek Arora, resident of House No.163, Sector 15, Panchkula.
2. Vivek Arora, son of Darshan Lal Arora, resident of House No.163, Sector 15, Panchkula.

……Complainants

V e r s u s

1. Parsvnath Developers Limited, through its Director, Rajiv Gandhi Chandigarh Technology Park (I.T. Park), U.T. Chandigarh.
2. The Director, Parsvnath Developers Limited,  Registered and Corporate Office, 6^th Floor, Arunachal Building 19, Barakhamba Road, New Delhi.
3. The Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector-9, Chandigarh.

              .... 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.Manoj Lakhotia, Advocate for the           complainants.

                 Sh.Aftab Singh, Advocate for Opposite Parties No.1 and 2, alongwith Sh. Yudhvir Arora, their Senior Manager (Commercial)

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

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            The facts, in brief, are that  the complainants applied for the allotment of a residential unit, in the project of Opposite Parties No.1 and 2, known as “Parsvnath Prideasia”,  Rajiv Gandhi  Chandigarh Technology   Park, Chandigarh, to be developed, and constructed by them, on the land of  Opposite Party No.3, vide application No.C8380. Alongwith the application form, an amount of Rs.5,90,000/- as earnest money, vide cheque No.174215 dated 20.09.2007, in respect of the said unit, was also paid by the complainants,  vide  acknowledgment receipt Annexure C-1, at page 13 of the file. The total sale consideration of the said unit was to the tune of Rs.1,18,15,000/-.     

2.       It was stated that vide allotment letter dated 20.11.2007, Annexure C-2, the complainants were originally allotted flat No.304, third floor, Block No.D-3. It was further stated that, subsequently, on the request made by the complainants, vide allotment letter dated 17.12.2007, Annexure C-3, they were shifted to residential flat no.301, third floor, Block No.D-3, having super area of 1700 square feet. The complainants paid the total amount of Rs.32,53,750/-, towards part price of the said unit, to the Opposite Parties.
3.       It was further stated that the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, was executed amongst the parties, at Chandigarh. As per Clause 9 (a) of the said Agreement (at page 29 of the file), the 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 after the stipulated date of handing over possession of the said unit, the complainants visited the site, where the flats were to be constructed, and came to know   that   the Opposite Parties failed to construct the same (flats), which fact was admitted by them vide letter dated 01.05.2009 Annexure C-9.
4.       It was further stated that, however, the complainants visited the Opposite Parties, a number of times, and requested them to apprise them, with regard to delivery of possession of the said unit, but they failed to give any satisfactory reply. It was further stated that in 2015, it was found that the entire project of the Opposite Parties was nothing but a farce. As such, the amount of Rs.32,53,750/-, deposited by the complainants, towards part price of the said unit, was refunded by the Opposite Parties, in the ratio of 70:30 i.e. Rs.9,76,125/- by Opposite Party No.3, vide letter dated 06.02.2015 and Rs.22,77,625/- by Opposite Parties No.1 and 2, vide letter dated 14.02.2015. It was further stated that, on receipt of the said amount, from the Opposite Parties, the complainants, approached them to pay interest on the said amount, as also compensation, as per Clause 9 (c) of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, but they flatly refused to do so. 
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, to pay interest @12% P.A., on the aforesaid amounts from the respective dates of deposits, till the same was refunded, in the manner, referred to above; compensation/penalty @107.60 per square meter, as per Clause 9(c) of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, from 05.10.2009, till the amount, aforesaid, was refunded; compensation to the tune of Rs.5 lacs,  for mental agony and physical harassment;  and cost of litigation, to the tune of Rs.22,000/-.
6.       Opposite Parties No.1 and 2 were served and put in appearance on 09.04.2015. In their short joint written version, filed on 15.04.2015, they 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 further pleaded 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 stated that the award dated 09.01.2015 had already been made by the Arbitrator. The factum that the complainants were, ultimately, allotted flat No.301, with super area of 1700 square feet, in the aforesaid project, in the manner, referred to above, was admitted. It was also admitted that the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, was executed amongst the complainants, and the Opposite Parties. The price of the flat, as stated by the complainants, in the complaint, was also admitted. It was also admitted that the complainants deposited a sum of Rs.32,53,750/-, 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 already refunded the amount of Rs.22,77,625/- being 70% of their share of the principal amount, on 14.02.2015, vide cheque No.034089 dated 10.02.2015. It was further stated that since the complainants had encashed the said cheque, as such, neither Opposite Parties No.1 and 2, were liable to pay any interest thereon, nor compensation, for mental agony and physical harassment.
7.        It was further 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 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.  
8.       Opposite Party No.3 was served, and put in appearance on 09.04.2015. In his written version,  filed on 15.04.2015, Opposite Party No.3, pleaded that the complaint was barred by time. It was admitted that the complainants were allotted the unit, in question, in Parsvnath Prideasia, in the manner, referred to above. It was also admitted that the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, was executed, amongst the complainants and the Opposite Parties.  It was also admitted that the complainants   deposited Rs.32,53,750/-, towards part price of the unit, as per the  payment plan. It was stated that, as per Clause 9(e) of the  Flat  Buyer Agreement dated 15.02.2008 Annexure C-8, 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 Opposite Party No.3, had already refunded the amount of Rs.9,76,125/-being 30% of his share of the principal amount, on 06.02.2015 vide demand draft No.886332 dated 06.02.2015, as also an amount of Rs.5,65,408/-, as interest @9% P.A., vide demand draft No.886892 dated 03.03.2015, from the respective date(s) of deposits till the date of refund, neither he 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.     
9.       The complainants, in support of their case, led evidence, by way of filing their joint affidavit, alongwith which, a number of documents were attached.
10.       Opposite Parties No.1 and 2, filed the short affidavit of Mr.Yudhvir Arora, their Senior Manager (Commercial), by way of evidence, alongwith which, a number of documents were attached.
11.       Opposite Party No.3, in support of his case, filed the affidavit of Mr. M.L. Chauhan, Chief Accounts Officer, Chandigarh Housing Board, Chandigarh, alongwith which, a number of documents were attached.
12.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.      
13.       The Counsel for the complainants, submitted that the complainants,   applied for the allotment of a flat, and they were, ultimately, allotted unit No.301, in the project of Parsvnath Prideasia,  Rajiv  Gandhi  Chandigarh Technology Park, Chandigarh. He further submitted that the complainants deposited the total amount of Rs.32,53,750/-, with the Opposite Parties, upto 09.01.2008. He further submitted that, as per the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, the construction of residential units, was likely to be completed within 36 months of  signing  the Development  Agreement dated 06.10.2006, between the Developers and the Chandigarh Housing Board.   He further submitted that though a sum of Rs.32,53,750/-, was deposited by the complainants, towards part price of  the flat,  yet not even a brick was laid, at the spot, what to speak of construction of  flats.  He further submitted that though there was no breach of the Agreement, on the part of the complainants, yet, neither the project was developed nor the question of delivery of possession of   the flat arose.  He further submitted that the complainants, therefore, could not wait for an indefinite period, and were entitled to the refund of entire amount, deposited by them, with interest, as also compensation for mental agony and physical harassment.  He further submitted that, no doubt, Opposite Party No.3, refunded 30% principal amount of his share to the complainants, alongwith interest, referred to above, yet, on the other hand, Opposite Parties No.1 and 2  were certainly deficient, in rendering service, to them (complainants), by neither  paying interest on the amount of Rs.22,77,625/-, refunded by them, towards 70% of their share, nor paying them the compensation, as per Clause 9 (c) of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8 and they also indulged into unfair trade practice.   
14.       On the other hand, the Counsel for Opposite Parties No.1 and 2, submitted that since the Flat Buyer Agreement was executed amongst the parties, on 15.02.2008, and possession of the said unit, was to be handed over to the complainants by 06.10.2009, as per the Development Agreement dated 06.10.2006, executed between the Opposite Parties, the complaint having been filed by the them (complainants), on 04.03.2015, was barred by limitation. He further submitted that the instant complaint under the Act, was also barred, on account of the reason that remedy for the settlement of disputes, by way of arbitration was availed of by the Opposite Parties, and award dated 09.01.2015, had already been made by the Arbitrator. He further submitted that, as per award dated 09.01.2015, made by the Arbitrator, Opposite Parties No.1 and 2, had already refunded the amount of Rs.22,77,625/- being 70% of their share of the principal amount, on 14.02.2015, vide cheque No.034089 dated 10.02.2015. He further submitted that since the complainants had admittedly received the said amount, as such, neither Opposite Parties No.1 and 2, were liable to pay any interest thereon, nor compensation/penalty for the period of delay, nor compensation, for mental agony and physical harassment. He further submitted 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 judgment, in so far as the payment of compensation under Clause 9(c) of the Flat Buyers Agreement was concerned. He further submitted that, under these circumstances, Opposite Parties No.1 and 2, were neither   deficient, in rendering service, nor they indulged into unfair trade practice nor they were liable to pay compensation.     
15.       The Counsel for Opposite Party No.3, submitted that  since as per the  Escrow Agreement, Opposite Party No.3, had already refunded the amount of Rs.9,76,125/-being 30% of his share of the principal amount, on 06.02.2015 vide demand draft No.886332 dated 06.02.2015, as also paid an amount of Rs.5,65,408/-, being interest @9% P.A., vide demand draft No.886892 dated 03.03.2015, from the respective date(s) of deposits till the date of refund,  and the remaining amount, alongwith interest, was to be paid by Opposite Parties No.1 and 2, neither he was liable to pay any further interest thereon, nor compensation, for mental agony and physical harassment to the complainants.    
16.       The first question, that falls for consideration, is, as to whether, the complaint filed by the complainants, is within limitation or not. It may be stated here, that, no doubt, the Flat Buyer Agreement Annexure C-8, in respect of the said unit, was executed amongst the parties, on 15.02.2008, yet, neither the physical possession thereof, by the promised date i.e. 06.10.2009, was delivered to the complainants, as per the terms and conditions of the same (Agreement), nor interest on the amount of Rs.22,77,625/- being 70% of their share of the principal amount refunded on 14.02.2015, vide cheque No.034089 dated 10.02.2015, was paid by Opposite Parties No.1 and 2. 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
17.  
18. 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  remedy for the settlement of dispute, by way of arbitration, has  already been availed of, by the Opposite Parties, and award dated 09.01.2015, was given by the Arbitrator. 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.”

18.           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 in Clause 18 of the Escrow Agreement, had already been availed of by the Opposite Parties and the award was given on 09.01.2015, 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). Not only this, the Arbitrator in his decision under Claim No.(11) of the Award dated 09.01.2015, wherein Opposite Party No.1 was the claimant and Opposite Party No.3 was the respondent held as under:-

“The claimant and respondent are liable to bear and pay the amounts payable to the residential unit buyers/customers, towards refund of the advance payments, interest and compensation, as directed by the consumer fora/Courts, their interse liability being in the ratio 70:30 respectively”.

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.

19.           The next question, that falls for consideration, is, as to whether, since the complainants  sought enforcement of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, in respect of the immoveable property, only a suit for specific performance, in the Civil Court was maintainable. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the flat, in question, and they were allotted the same for consideration. According to Clause 9 (a) of the said Agreement (at page 29 of the file), the 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. According to this Clause, the Opposite Parties were committed to deliver possession of the unit, in question, to the complainants. It was not that the complainants purchased the unit, in an open auction, on “as is where is basis”.  Section 2 (1) (o) of the Act, defines service as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

20.         From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an Agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants had a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, could be availed of by them, as they fall within the definition of consumers. 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.
21.       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 complainants applied for the allotment of a flat, and they   were   allotted the same, in the manner, explained above.   They deposited the amount of Rs.32,53,750/-, towards part price of the flat, according to the payment plan, as admitted by the Opposite Parties.  Clause 9(a) of the  the Flat Buyer Agreement dated 15.02.2008 Annexure C-8,  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.”

22.       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 complainants 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 the construction of   the residential units was to be completed within 36 months from 06.10.2006 i.e. by 06.10.2009.  
23.       The next question, that arises for consideration, is, as to whether, the complainants are entitled to the refund of amount, deposited by them, 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.” 

24.       The complainants 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, 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, the complainants could not wait for an indefinite period.  The only option left with the complainants, in such circumstances, was to ask for the refund of amount. They 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 Developers for, whatever the reasons may be, fail to deliver   possession of the residential unit to the buyers, they (Developers) 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.  The Opposite Parties were, thus, deficient, in rendering service, by neither delivering possession of the flat, within the stipulated time, nor refunding the amount immediately, with interest, as provided under Clause 9(d) of the Agreement, referred to above.  
25.       It may be stated here that 'Interest' in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, 'interest' is understood to mean the amount, which one has contracted to pay for use of borrowed money. In whatever category 'interest' in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In the instant case, as per Clause 9(d) extracted above, as stated above, in case, the project is abandoned or the construction could not be carried out, on account of certain reasons, then in that event, refund of the amount was to be made at the SBI rate of interest. Since, the project had not taken off at all, the question of offering the possession by 06.10.2009, did not at all arise. It was, thus, the duty of the Opposite Parties, to offer the refund of amount to the complainants, the moment the stipulated date, for the delivery of possession expired. The Opposite Parties, however, did not make any offer, immediately, despite the fact that the project had not taken off, and no construction of the flats, had taken place, but, on the other hand, refunded the same, in the year 2015, in the manner, referred to above. The Opposite Parties, thus, had utilized the money, deposited by the complainants, for a long time. The Opposite Parties had been earning handsome returns, on the amount, deposited by the complainants, either by depositing the same, in the Bank, or by investing the same, in some other projects. Had the amount been returned to the complainants immediately after the stipulated date, when the Opposite Parties were unable to deliver possession of the flats, they (complainants) would have either deposited the same, in some Bank and earned handsome returns or invested the same, in some business, resulting into handsome income, to them. The complainants were, thus, deprived of their money, illegally and arbitrarily retained by the Opposite Parties, and, as such, they (complainants) were entitled to interest, on the amount deposited, from the respective dates of deposits, till the refund was made, in the manner, referred to above, as per Clause 9(d) of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8.
26.       Now the main question, that arises for consideration, is, as to what amount, the complainants are entitled to. It is evident from the record that vide cheque No.034089 dated 10.02.2015, Opposite Parties No.1 and 2, had refunded the amount of Rs.22,77,625/- being 70% of their share of the principal amount, on 14.02.2015, to the complainants. Thus, in our considered opinion, since Opposite Parties No.1 and 2, have already refunded Rs.22,77,625/- being 70% of their share of the principal amount, on 14.02.2015, to the complainants, they are only liable to pay interest, on the said amount, from the respective dates of deposits till that date (14.02.2015) at the SBI term rate interest, according to Clause 9(d)  of the  Flat Buyer Agreement dated 15.02.2008 Annexure C-8. By not paying the interest on the amount of Rs.22,77,625/-, at the SBI term deposit rate of interest, according to Clause 9(d)  of the   Flat Buyer Agreement dated 15.02.2008 Annexure C-8, Opposite Parties No.1 and 2 were deficient, in rendering service and also adopted unfair trade practice.
27.       As far as the liability of Opposite Party No.3, is concerned, it may be stated here, that it is evident from the record that he has already refunded the amount of Rs.9,76,125/- being 30% of his share of the principal amount, on 06.02.2015 vide demand draft No.886332 dated 06.02.2015, as also an amount of Rs.5,65,408/-, as interest @9% P.A., vide demand draft No.886892 dated 03.03.2015, from the respective date(s) of deposits till the date of refund. Thus, in our considered opinion, since Opposite Party No.3, has already refunded the amount of Rs.9,76,125/-, being 30% of his share of the principal amount, alongwith interest at the rate aforesaid, according to Clause 9(d)  of the   Flat Buyer Agreement dated 15.02.2008 Annexure C-8, no relief survives against him and the complaint qua Opposite Party No.3, deserves to be dismissed. 
28.        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 15.02.2008 Annexure C-8,  referred to above, and for deficiency in service and indulgence into unfair trade practice, by the Opposite Parties. Clause 9 (c) of the Agreement, 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. ”

29.       The 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 from 06.10.2009 onwards. 
30.       No other point, was urged, by the Counsel for the parties.
31.       For the reasons, recorded above, the complaint is  partly  accepted  with costs of Rs.10,000/-, and Opposite Parties No.1 and 2, are jointly and severally, held liable, as under:-
    1.       To pay interest on the amount of Rs.22,77,625/- at the SBI Term Deposit rate,  (as applicable on 14.02.2015) as per Clause  9(d) of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8, from the  respective dates of deposits, till 14.02.2015, the date when the same (Rs.22,77,625/-) was refunded to the complainants, vide cheque/demand draft dated 10.02.2015.
    2. 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, till actual payment of interest as indicated above, to the complainants is made, as provided by Clause 9 (c) of the Flat Buyer Agreement dated 15.02.2008 Annexure C-8.
    3. To pay cost of litigation, to the tune of Rs.10,000/-, to the complainants.
    4. To comply with the aforesaid directions,  within a period of 30 days, from the date of  receipt of  a certified copy of this  order, failing which they shall be further liable  to pay penal interest @ 12% p.a., instead of SBI Term Deposit rate of interest, on the amount of Rs.22,77,625/- from the date of default, besides payment of costs of Rs.10,000/-, till realization.
32.       The complaint qua Opposite Party No.3 is dismissed with no order as to costs.
33.        Certified Copies of this order be sent to the parties, free of charge.
34.       The file be consigned to Record Room, after completion

Pronounced.

May 1, 2015                                                        

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

MEMBER

Rg.